STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-2128

) PAUL E. PETERS, JR., D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before Arnold H. Pollock, Hearing Officer with the Division of Administrative Hearings, on April 18, 1983, in Gainesville, Florida. The issue for determination was whether the Respondent's license to practice dentistry in the State of Florida should be suspended, revoked, or otherwise disciplined because of alleged violations of Florida statutes as contained in the Administrative Complaint.

APPEARANCES

For Petitioner: Julie Gallagher, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: Kenneth E. Brooten, Jr., Esquire

Post Office Box 788 Gainesville, Florida 32602

BACKGROUND INFORMATION

In an administrative complaint dated July 7, 1982, Respondent is alleged to have prescribed controlled substances other than in the course of his professional practice, in violation of Sections 466.028(1)(q) and (z), Florida Statutes (1979 and 1981) [Counts I, II, and III]; by prescribing amphetamines, in violation of Section 466.028(1)(s), Florida Statutes (1979 and 1981) [Count III]; and by administering nitrous oxide gas to himself, in violation of Rule 21G-14.04(4), Florida Administrative Code, and Section 466.028(1)(bb), Florida Statutes (1979 and 1981).

Petitioner presented the testimony of Marcia Collins, Sharon MacMahon, and, by deposition, that of Respondent; and Respondent testified in his own behalf, as well as presenting the testimony of Dr. Edgar Allen Cosby.

FINDINGS OF FACT

1. At all times pertinent to this hearing, Petitioner held an active license as a dentist (No. 4385) in the State of Florida.

2. On July 29, 1981, Respondent performed a difficult maxillary hyperplastic surgery on Mrs. Jeanette Remington which required several follow-up visits and treatment.

   
   

3. Sometime after the surgery, Mrs. Remington made a trip to Bolivia.

   
   

4. Upon her return in either September or October, 1981, she called Respondent regarding her treatment. He felt it was necessary for her to come to his office for further examination and treatment. However, because she was suffering from acute diarrhea, she was unable to leave the house. As a result, Respondent prescribed paregoric for her to control the diarrhea so that she could leave her home to come to his office for required dental examination and treatment.

   
   

5. Paregoric, as a derivative of opium, is a controlled substance listed in Chapter 893, Florida Statutes (1979 and 1981). As a result, a prescription was required to obtain it. It is not generally used in the practice of dentistry.

   
   

6. Dr. Edgar Allen Cosby, a dentist since 1950 and a former chairman of the Florida Board of Dentistry in 1979, testified, and I so find, that often a dentist will treat minor, unrelated medical problems for the purpose of getting a patient into the office. It is only recently that prescription of any drug by a licensed dentist was limited. Prior to that time, a dentist could prescribe any drug provided his license and Drug Enforcement Agency certificate were current.

   
   

7. In November, 1981, Dr. Peters called in a prescription for Tylenol IV for Fred Remington to Sharon S. MacMahon, a registered pharmacist at the Gainesville Pic 'N Save drugstore. Ms. MacMahon filled the prescription, which had a refill authorization on it. Mr. Remington went back two days later and requested a refill. Since Ms. MacMahon felt this was too soon for a refill, she refused to do so and attempted, unsuccessfully, to reach Respondent. The following day, when Mr. Remington came back, she was able to contact Respondent, who approved the prescription. When she asked Respondent what the prescription was for, he indicated it was for a head injury resulting from a fall. Mr. Remington, on the other hand, indicated to Ms. Collins, the investigator, the prescription was for pain resulting from an auto injury. Regardless of which one was accurate, neither relates to the practice of dentistry.

   
   

8. Tylenol IV is a derivative of codeine and is designated as a controlled substance in Chapter 893, Florida Statutes (1979 and 1981).

   
   

9. At some time during Respondent's first year of dental practice (in 1971 or 1972), Respondent prescribed amphetamines on one occasion to a student at the University of Florida who was studying for examinations.

   
   

10. The amphetamine was in the form of Dexedrine, the trade name for dextroamphetamine, and is currently designated as a Schedule II controlled substance in Chapter 893, Florida Statutes (1979 and 1981).

    
    

11. Amphetamines, in 1971, were considered as a "central nervous system stimulant," as defined in Section 404.01, Florida Statutes (1971), and a prescription was required to obtain them.

12. Ms. MacMahon has never filled a prescription for amphetamines by Respondent during her 8 1/2 years as a pharmacist. An audit of 15 to 20 pharmacies in the Gainesville area conducted by investigators for the Petitioner failed to reveal any prescriptions for amphetamines written by the Respondent during the two or more years records were kept.

    
    

13. At some point, well prior to March, 1982, Respondent administered nitrous oxide gas to himself for purposes not related to the practice of dentistry. Respondent was divorced in 1976 and utilized the gas to relax himself, not while engaged in practice, as a result of the stress involved with his divorce.

    
    

14. Nitrous oxide is a gas used in the practice of dentistry to relax or sedate patients prior to dental treatment. It is a form of anesthetic.

    
    

15. Respondent's nitrous oxide equipment has been inoperative for several years because the storage tanks were stolen and not replaced. This theft was reported to the police.

    
    

16. Respondent is considered by Petitioner's investigator and by other practitioners to be very conservative in his prescription of drugs. He does not prescribe large quantities of Schedule II drugs.

    
    

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

    
    

18. Sections 466.028(1)(q) and (z), Florida Statutes (1981), provide:

    
    

    (q) Prescribing, procuring, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of a dentist's professional practice. For the purposes of this paragraph, it shall be legally presumed that prescribing, procuring, dispensing, administering, mixing, or otherwise preparing legend drugs, including all controlled substances, in excessive or inappropriate quantities is not in the best interest of the patient and is not in the course of the dentist's professional practice, without regard to his intent.

    (z) Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform.

    
    

    The same sections of the 1979 statutes are identical.

    
    

19. Here, Dr. Peters advised Ms. Collins, the investigator, that he prescribed the paregoric for Mrs. Remington to cure her diarrhea so that she could go to the office for examination and treatment in connection with a bona fide dental procedure he had performed on her previously. He indicated, as confirmed by Dr. Cosby, that the practice of treatment of unrelated medical

    problems by dentists, incidental to the treatment of a dental problem, while not specifically provided for by rule or statute, is nonetheless a practice frequently followed by dentists and would be consistent with good dental practice. Therefore, there is no showing here of a violation of the statutes alleged in Count I.

    
    

20. In Count II, Respondent is alleged to have violated the same statutory provisions by prescribing Tylenol IV to Mr. Frederick Remington. While Respondent's motives may have been worthy, this situation must be distinguished from that involving Mrs. Remington since there was no connection between Mr. Remington's backache as a result of a car accident and present or ongoing dental work. The fact that that connection is absent makes a violation out of an otherwise innocuous and perhaps even worthwhile effort.

    
    

21. The allegations in Count III present several problems. In the first place, the administrative complaint alleges that between January, 1980, and December, 1981, Respondent prescribed Dexadrine for a college student who was preparing for exams. Respondent indicated at the hearing that he had done so only once, in the 1971-1972 time frame, testimony consistent with that given at his deposition in March, 1982. Consequently, the evidence clearly shows that the incident took place over ten years ago. The testimony of the investigator that audits revealed no prescriptions for amphetamines by Respondent for the two years or more records were kept tends to substantiate Respondent's claim. Therefore, Section 466.028(1)(s), Florida Statutes (1979 and 1981), would not apply.

    
    

22. The law in effect at that time was Section 466.22, Florida Statutes (1971), which states:

    
    

    A dentist shall have the right to prescribe drugs or medicine, perform such surgical operations, administer general or local anaesthetics and use such appliances as may be necessary to the proper practice of dentistry.

    
    

23. Clearly, the prescribing of amphetamines to a student studying for exams is not necessary to the proper practice of dentistry and constitutes a violation of the statute which existed at that time. However, the failure of the Board to take action at or near that time, while not resulting in a bar to action under a statute of limitations, may nonetheless be so removed in time as to constitute laches. The doctrine of laches has been applied in administrative proceedings. See Askew v. Taylor, 299 So.2d 72, 73 (1 DCA Fla. 1974); Christian and Missionary Alliance Foundation, Inc. v. Schooley, 289 So.2d 778 (2 DCA Fla. 1974). It appears to fit this situation.

    
    

24. Therefore, since there was no evidence that Respondent committed an offense in 1980 or 1981 regarding amphetamines, since Petitioner did not allege an offense involving amphetamines to have taken place in 1971 or 1972, and since the doctrine of laches would preclude an amendment of the pleadings to conform to the proof, the allegation in Count III must fail.

    
    

25. In Count IV, Respondent is alleged to have violated Rule 21G-14.04(4), Florida Administrative Code, and thereby Section 466.028(1)(bb), Florida Statutes (1979 and 1981), by administering nitrous oxide gas to himself to relieve the mental stress caused by his divorce. Rule 21G-14.04(4), Florida Administrative Code, provides:

    Nothing in this rule shall be construed to allow a dentist or dental hygienist or auxiliary to administer to himself or to any person other than in the course of the practice of dentistry, any drug or agent used for anesthesia, analgesia or sedation.

    
    

    and Section 466.028(1)(bb), Florida Statutes (1981), states:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       (bb) A violation or repeated violation of this chapter, chapter 455, or any rule promulgated pursuant to chapter 455 or this chapter; or a violation of a lawful order of the board of department previously entered in a disciplinary hearing; or failure to comply with a lawfully issued subpoena of the board or department.

       
       

26. The evidence shows that Dr. Peters, at some point in time, used nitrous oxide to relax himself. In his deposition, the Respondent indicated he used it to relieve the stress incident to his divorce which took place in 1976 and up until the time the tanks to the equipment were stolen somewhat over a year prior to March, 1982, the date of the deposition. Adding the ensuing year to the year plus prior to the deposition, the time frame for use falls within the period specified in the administrative complaint. Consequently, this allegation has been proven.

    
    

27. Respondent objected to the admission of the deposition taken of Respondent on March 11, 1982, by counsel for Petitioner on the basis that it was a violation of Respondent's right against self-incrimination, citing Kozerowitz

    v. Florida Real Estate Commission, 289 So.2d 391 (Fla. 1974), and Lefkowitz v. Bertulli, 411 U.S. 70 (1973). Respondent's counsel also conditioned Respondent's testimony at the hearing on the resolution of his objection to the deposition, ruling on which was deferred. In other words, though Respondent testified at the hearing, that testimony was to be considered only if the ruling on the admissibility of the deposition was adverse to Respondent.

    
    

28. I have carefully considered Respondent's memorandum in support of his objection to the admissibility of the deposition and the cases he cited therein and elsewhere. However, the circumstances indicate that Respondent voluntarily testified at the deposition after advice of his rights to remain silent. He had been previously represented by counsel. Having voluntarily waived his right against self-incrimination, he cannot now be heard to assert it as to that evidence absent any showing of impropriety in the circumstances leading up to the waiver. Therefore, Respondent's objection to the admission of the deposition is overruled.

    
    

29. The parties have submitted proposed recommended orders which include proposed findings of fact and conclusions of law. The proposed findings and conclusions have been adopted only to the extent that they are expressly set out in the Findings of Fact and Conclusions of Law above. They have been otherwise rejected as contrary to the better weight of the evidence, not supported by the evidence, irrelevant to the issues, or legally erroneous.

RECOMMENDATION

Based upon the foregoing, it is RECOMMENDED:

That Counts I and III be dismissed for lack of evidence and that Respondent be assessed an administrative fine of $1,000.

RECOMMENDED this 8th day of July, 1983, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 8th day of July, 1983.

COPIES FURNISHED:

Julie Gallagher, Esquire Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Kenneth E. Brooten, Jr., Esquire Post Office Box 788

Gainesville, Florida 32602

Mr. Fred Roche, Secretary Department of Professional

Regulation

130 North Monroe Street Tallahassee, Florida 32301

Mr. Fred Varn Executive Director Board of Dentistry

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

================================================================= AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA

DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

CASE NOS. 0017971 (DPR)

v. 82-2128 (DOAH)

LICENSE NO. DN 0004385

PAUL E. PETERS, JR., D.D.S.,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Board of Dentistry pursuant to Section 120.57(1)(b)9., Florida Statues (1981), on September 10, 1983, in Tampa, Florida, for consideration of the Recommended Order (a copy of which is attached hereto and incorporated herein by reference) issued by the hearing officer is the case of Department of Professional Regulation vs. Paul E. Peters, Jr., D.D.S., Case No. 82-2128, and the Exceptions filed by both parties. Petitioner filed Exceptions to one Conclusion of Law and to the Recommended Penalty. The Respondent took exception to the Recommended Penalty only. The Petitioner was represented by Julie Gallagher, Esquire. The Respondent was represented by Kenneth E. Brooten, Jr., Esquire.

Upon consideration of the hearing officer's Recommended Order, the Exceptions, and the arguments of the parties and after a review of the complete record in this matter, the Board makes the following findings.

FINDINGS OF FACT

1. The Hearing Officer's findings of fact are hereby approved and adopted in toto.

2. There is competent, substantial evidence to support the hearing officer's findings of fact.

CONCLUSIONS OF LAW

1. All of the hearing officer's conclusions of law, with the exception of that set forth in paragraph 3 of the Recommended Order, are hereby approved and adopted in toto.

   
   

2. The Board rejects the conclusions of law set forth in paragraph 3 of that portion of the Recommended Order and adopts paragraph 3 of that portion of the Recommended Order and adopts paragraph 2 of the Petitioner's exceptions on that issue. Specifically, the Board finds as follows:

   The writing of a prescription of paregoric for Mrs. Remington to cure her diarrhea so that she could go to the office for dental examination and treatment in connection

   with a bona fide dental procedure Respondent had performed on her previously constituted writing a prescription for a legend drug other than in the course of a dentist's professional practice, as prohibited by Section 466.028(1)(q), Florida Statutes (1981). Furthermore, prescribing a legend drug other than in the course of a dentist's professional practice constitutes practicing beyond the scope permitted by law, as prohibited by Section 466.028(1)(z), Florida Statutes, 1981; In rejecting the Hearing

   Officer's conclusion of law, the Florida Board

   of Dentistry specifically finds that the practice of treatment of unrelated medical problems by dentists, incidental to the treatment of a dental problem, is prohibited by the sections of Dental Practice Act cited above.

   
   

3. The hearing officer's recommendation that Count I of the Administrative Complaint be dismissed for lack of evidence is rejected for the reasons set forth in the immediately preceding paragraph. The hearing officer's recommendation that Count III be dismissed for lack of evidence is hereby approved and adopted.

   
   

4. The hearing officer's recommended penalty is rejected as being too lenient under the circumstances of this cause, particularly in light of the Board's rejection of the recommendation of dismissal of Count I of the Administrative Complaint. Respondent's request, by way of Exception, that the only penalty assessed be a private reprimand is rejected as being too lenient and as outside the Board's authority in light of the Sunshine Law, Section 286.011, Florida Statutes (1981); the Public Records Law, Section 119.07, Florida Statutes (1981); and Section 455.225, Florida Statutes (1981). Petitioner's Exception, insofar as it relates to penalty, is accepted in part and rejected in part as reflected below.

WHEREFORE, IT IS HEREBY ORDERED AND ADJUDGED:

1. That Respondent Paul E. Peters, Jr., D.D.S., shall be, and hereby is, REPRIMANDED.

   
   

2. That Respondent is assessed an administrative fine in the amount of two thousand dollars ($2000). Said fine shall be payable in ten monthly installments of $200. The first payment shall be made to the Executive Director of the Board within thirty (30) days of the filing of this final order and each subsequent payment shall be due each thirty days thereafter.

   
   

3. That Respondent's license to practice dentistry is placed on probation for one year subject to the term and condition that any violation of the laws or rules relating to the practice of dentistry shall result in an automatic suspension of Respondent's license for thirty (30) days.

DONE AND ORDERED this 30th day of November, 1983.

Richard Wiess, D.D.S. Acting Chairman Board of Dentistry

cc: Julie Gallagher, Esquire

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Docket for Case No: 82-002128

Orders for Case No: 82-002128