STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE OF FLORIDA, DEPARTMENT ) OF PROFESSIONAL REGULATION, )

BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) DOAH CASE NO. 86-0085

) DPR CASE NO. 0047149

JAMES WILSON, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to a notice, a formal hearing was held in the above-styled case before the Division of Administrative Hearings by its duly designated Hearing Officer, Michael M. Parrish, on September 16, 1986, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Nancy M. Snurkowski, Esquire

Department of Profession Regulation

130 North Monroe Street Tallahassee, Florida 32301

For Respondent: No Appearance

INTRODUCTION

This is a license discipline case in which Respondent has been charged by Administrative Complaint with a violation of Section 466.028(1)(bb), Florida Statutes, by reason of allegations that he practiced dentistry without having an appropriate, active license to practice dentistry.

Respondent was provided with written notice of the time and place of the formal hearing, but he did not appear at the appointed time. Commencement of the hearing was delayed for approximately 25 minutes as an accommodation to Respondent. Beginning at approximately 10:25 a.m., the hearing was conducted without the Respondent being present. Petitioner completed the presentation of its case at approximately 10:45 a.m. At the conclusion of the Petitioner's presentation, the evidentiary record in the case was closed. Neither Respondent nor anyone on his behalf appeared at the hearing at any time between 10:00 a.m. and the conclusion of the hearing. Subsequent to the hearing, Petitioner filed a Proposed Recommended Order, and a transcript of the hearing was also filed with the Hearing Officer. Careful consideration has been given to Petitioner's Proposed Recommended Order in the preparation of this Recommended Order. The substance of all of the findings of fact proposed by Petitioner has been incorporated into the findings of fact below.

ISSUES

The issues in this case are whether Respondent has violated Section 466.028(1)(bb), Florida Statutes, by practicing dentistry without an appropriate, active license to practice dentistry and, if so, what penalty should be imposed for such a violation.

FINDINGS OF FACT

Based on the exhibits received in evidence and on the testimony of the witness called at the hearing, I make the following findings of fact.

1. At all times relevant hereto, Respondent, James Wilson, D.D.S., held a dental license, number DN0002819, issued by the State of Florida, Department of Professional Regulation, Board of Dentistry.

   
   

2. Respondent was awarded a licensed certificate to practice dentistry in the state of Florida on August 10, 1959, by the Florida State Board of Dental Examiners.

   
   

3. Respondent was licensed to practice dentistry in the state of Florida for the 1982/83 biennial period which ended on December 31, 1953.

   
   

4. The license of Respondent expired on January 1, 1984.

   
   

5. Respondent was advised by Department personnel, on April 23, 1984, that his license was delinquent. Respondent was also advised of the procedures required to renew said delinquent license.

   
   

6. Respondent made payment to the Board of Dentistry in the amount of $200 on July 23, 1984, for renewal of his expired license, which payment applied toward the 1984/85 biennial period. The amount of $200 reflects the sum of the renewal charge of $150, plus $50 for his late renewal.

   
   

7. Respondent, from the period January 1, 1984, to August 8, 1984, was actively practicing dentistry, during which time his license was expired.

   
   

   CONCLUSIONS OF LAW

   
   

   Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this case. Sec. 120.57, Fla. Stat.

   
   

9. Section 466.028(1), Florida Statutes, lists the grounds for which disciplinary action may be taken by the Board of Dentistry. Those grounds include the following at paragraph (bb) of the statute:

   
   

   (bb) The violation or the repeated violation of this chapter [Chapter 466], chapter 455, or any rule promulgated pursuant to chapter

   455 or this chapter; or the violation of a lawful order of the board or department previously entered in a disciplinary hearing; or failure to comply with a lawfully issued subpoena of the board or department.

10. Section 466.028(2), Florida Statutes, empowers the Board to impose one or more of the following penalties:

    
    

    1. Denial of an application for licensure.

    2. Revocation or suspension of a license.

    3. Imposition of an administrative fine not to exceed $1,000 for each count or separate offense.

    4. Issuance of a reprimand.

    5. Placement of the licensee on probation for a period of time. . . .

    6. Restricting the authorized scope of practice.

       
       

11. Section 466.026(1)(a), Florida Statutes, provides that the following conduct is a criminal act:

    
    

    1. Practicing dentistry . . . unless the person has an appropriate, active license issued by the department pursuant to this chapter.

       
       

12. Section 455.203(1), Florida Statutes, requires that all licensees, including Respondent, renew their licenses every two years. Section 466.013(3), Florida Statutes, provides that any license which is not renewed at the end of the biennium shall automatically revert to an inactive status.

    
    

13. The evidence is uncontroverted that Respondent allowed his dental license to become inactive when it expired on January 1, 1984, and it remained inactive through August 8, 1984.

    
    

14. The evidence is uncontroverted that Respondent was practicing dentistry while his license was expired and inactive from January 1, 1984, through August 8, 1984.

    
    

15. The act of practicing dentistry with an inactive license is a violation of Section 466.021(1)(a), Florida Statutes, and therefore also constitutes a violation of Section 466.028(1)(bb), Florida Statutes, for which discipline may be imposed.

    
    

    RECOMMENDATION

    
    

    Based upon all of the foregoing, it is recommended that the Board of Dentistry enter a Final Order in this case to the following effect:

    
    

    1. Finding Respondent guilty of a violation

       of Section 466.028(1)(bb), Florida Statutes, as charged in the Administrative Complaint;

    2. Reprimanding Respondent for being guilty of such violation;

    3. Imposing an administrative fine in the amount of $250 on Respondent; and

    4. Allowing the Respondent 30 days from

the date of entry of the final order in this case within which to pay the administrative fine.

DONE AND ENTERED this 30th day of September, 1986, at Tallahassee, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of September, 1986.

COPIES FURNISHED:

Nancy M. Snurkowski, Esquire Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

James Wilson, D.D.S.

3116 Moncrief Road

Jacksonville, Florida 32209

James Wilson, D.D.S. 7145 Dostie Drive East

Jacksonville, Florida 32209

Wings Slocum Benton, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Pat Guilford, Executive Director Board of Dentistry

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32301

Fred Roche, Secretary

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,

vs. CASE NO. 86-0085

JAMES WILSON, D.D.S.,

Respondent.

/

FINAL ORDER

THIS MATTER came before the Board of Dentistry pursuant to Section 120.57(1)(b)9., Florida Statutes, on November 8, 1986, in Tampa, Florida, for consideration of the hearing officer's Recommended Order (a copy of which is attached as Exhibit A) in the case of Department of Professional Regulation v. James Wilson, D.D.S., Case No. 86-0085. At the hearing, Petitioner was represented by Nancy N. Snurkowski, Esquire. Neither the Respondent nor anyone representing him appeared on his behalf. Upon consideration of the hearing officer's Recommended Order, and having been otherwise fully advised in the premises, the Board makes the following findings and conclusions:

FINDINGS OF FACT

1. The hearing officer's findings of fact are approved and adopted in toto and are incorporated herein by reference.

   
   

2. There is competent, substantial evidence to support the Board's findings.

CONCLUSIONS OF LAW

1. The hearing officer's conclusions of law are approved and adopted in toto and are incorporated herein by reference.

   
   

2. There is competent, substantial evidence to support the Board's conclusions.

   
   

3. The Board approves and adopts the hearing officer's recommendation that Respondent be reprimanded. However, the Board rejects the hearing officer's recommendation that Respondent be assessed an administrative fine in the amount of two hundred fifty dollars ($250.00). The Board believes that the record in this matter demonstrates a knowing, willful failure on the part of Respondent to renew his license. Specifically, Respondent was advised in April 1984 that his license was delinquent but he did not renew until August 1984, even though he

continued to practice dentistry during this period. Respondent's willful conduct supports an increase in the administrative fine from two hundred fifty dollars ($250.00) to eight hundred dollars ($800.00).

WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent violated Section 466.028(1)(bb), Florida Statutes, by violating Section 466.026(1)(a), Florida Statutes. Respondent is reprimanded and he is assessed an administrative fine in the amount of eight hundred dollars ($800.00) which shall be paid to the Board's Executive Director no later than thirty (30) days after the effective date of this Order. This Order becomes effective upon being filed with the Board Clerk.

The parties are hereby notified that they may appeal this Order by filing one copy of a Notice of Appeal with the Clerk of the Agency and by filing a filing fee and one copy of a Notice of Appeal with the District Court of Appeal within thirty days of the date this Order is filed.

DONE AND ORDERED this 5th day of December 1986.

Robert T. Ferris, D.D.S. Vice-Chairman

Board of Dentistry

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order has been forwarded by certified U.S. Mail this 11th day of December 1986, to James Wilson, D.D.S., 3116 Moncrief Road, Jacksonville, Florida 32209, and hand delivered to Nancy W. Snurkowski, Esquire, 130 North Monroe Street, Tallahassee, Florida 32301.

Patricia Guilford Executive Director Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32301 (904) 487-2395

Docket for Case No: 86-000085

Orders for Case No: 86-000085