STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1029

)

TOMMY J. DORSEY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on 20 May 1982 at Orlando, Florida.

APPEARANCES

For Petitioner: Salvatore A. Carpino, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Ralph V. Hadley, III, Esquire

Post Office Box 1340

Winter Garden, Florida 32787

By Administrative Complaint dated 22 March 1982 the Department of Professional Regulation, Board of Dentistry, Petitioner, seeks to revoke, suspend or otherwise discipline the license of Tommy J. Dorsey, Respondent, to practice dentistry in Florida. As grounds there for it is alleged that during the period between September 1978 and June 1979 Respondent allowed an unlicensed assistant to take impres- sions for the construction of dentures and partial dentures in violation of Section 466.24(3)(e), Florida Statutes (1977).

At the hearing one witness was called by Petitioner; three witnesses, including Respondent, were called by Respondent; and four exhibits were admitted into evidence.

FINDINGS OF FACT

1. Tommy J. Dorsey is licensed as a dentist by the Petitioner and was so licensed at all times relevant hereto.

   
   

2. During the period August-September 1978 to June-July 1979 Priscilla Mae Young was employed by Respondent as a dental assistant. Miss Young worked part- time for Respondent while doing her internship at Southern College and, upon graduation as a dental assistant, she worked full time for Respondent until she was fired in July 1979.

3. Miss Young was not licensed as a dental hygienist or otherwise by the Petitioner during the time she worked for Respondent.

   
   

4. During most of the time Miss Young worked for Respondent, Respondent also employed Errol A. Cherry, a licensed dentist, on a part-time basis (two and one-half days per week). While Dr. Cherry worked for Respondent, he dated Miss Young occasionally but they split up before Miss Young departed Respondent's employ in July 1979.

   
   

5. Miss Young testified that she and the other unlicensed assistants took all impressions for dentures and partial dentures during the time she was employed by Respondent. She also testified she performed other services for Respondent, such as removing sutures, signing prescriptions, and taking and developing X-rays, all with Respondent's knowledge and consent and as part of her duties. Evidence respecting these services is disregarded as not encompassed within the Administrative Complaint. Miss Young also testified she discussed these unauthorized functions she was performing with Dr. Cherry and, finally, with Respondent. When she refused to come to work on 5 July 1980, after being denied permission to take that day off by Respondent, Miss Young was fired.

   
   

6. Dr. Cherry testified that he never saw Miss Young take impressions, never heard Respondent direct her to do so, or talk to her about performing these services.

   
   

7. Respondent's wife, Virgie Dorsey, is a licensed dental hygienist who works in the office primarily as a receptionist. She testified she never saw Miss Young take final dental impressions but believes that on occasion Respondent allowed his assistants to take study impressions.

   
   

8. Respondent testified that he never permitted unlicensed personnel to take final impressions or sign his name to prescriptions. He dictated the description of the work desired on these lab prescriptions for the assistant to write down, then he would sign the prescription. Respondent occasionally allowed his assistants to take study impressions.

   
   

9. Respondent described Miss Young as very aggressive and one he had to reprimand on three occasions, two of these occasions for signing prescriptions. When she asked for 5 July 1980 off, Respondent told her if she did not come to work that day she would be dismissed. Respondent testified he was relieved to have this excuse to fire Miss Young.

   
   

10. Miss Young is a credible witness. On the other hand, the testimony of Respondent and his two other assistants is also credible.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearingshas jurisdiction over the parties to, and the subject matter of, these proceedings.

    
    

12. Petitioner, who is seeking to take disciplinary action against Respondent's license, has the burden of proof. Balino v. Department of Health and Rehabilitative Services, State of Florida, 348 So.2d 349 (Fla. 1st DCA 1977); Fitzpatrick v. City of Miami Beach, 328 So.2d 578 (Fla. 3rd DCA 1976) In administrative proceedings the preponderance of the evidence standard is applicable. Florida Department of HRS v. Career Service Commission, 289 So.2d

    412 (Fla. 4th DCA 1974); Bowling v. Department of Insurance, 394 So.2d 165 (Fla. 1st DCA 1981) This burden is not met by proof creating equipoise. DHRS v. CSC, supra.

    
    

13. Applying these principles to the evidence presented clearly demonstrates Petitioner has failed to meet its burden of proof. While counting witnesses has little value in weighing their testimony, here three witnesses denied the allegations made by the Petitioner's one complaining witness. No corroboration of Miss Young's testimony was presented. Without considering the three-to-one ratio, the evidence at best is at equipoise. In such a posture Petitioner has not sustained the burden of proof.

    
    

14. From the foregoing it is concluded that Petitioner failed to prove, by a preponderance of the evidence, that Tommy J. Dorsey, D.O.S., allowed Miss Young, an unlicensed assistant, to take impressions for the construction of dentures and partial dentures. It is, therefore,

RECOMMENDED that Tommy J. Dorsey, D.O.S., be found not guilty of all charges, and these proceedings be dismissed.

ENTERED this 25th day of June, 1982, at Tallahassee, Florida.

K. N. AYERS, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 25th day of June, 1982.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Ralph V. Hadley, III, Esquire Post Office Box 1340

Winter Garden, Florida 32787

Fred Varn, Executive Director Board of Dentistry

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Samuel R. Shorstein, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-001029

Orders for Case No: 82-001029