STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioners, )

)

vs. ) CASE NO. 86-2003

)

ROBERT D. IVER, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings by its duly designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on May 20, 1987 in Miami, Florida. The following appearances were entered:

For Petitioner: Dirk Young, Esquire

320 Southeast Ninth Street

Fort Lauderdale, Florida 33316

For Respondent: Harold M. Braxton, Esquire

Suite 406, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156

PROCEDURAL BACKGROUND

On May 12, 1986, Petitioner filed an Administrative Complaint charging that Respondent violated certain provisions of Chapter 466 (dentistry, dental hygiene, and dental laboratories), Florida Statutes, as enumerated in the complaint. The Respondent disputed the allegations of fact contained in the Administrative Complaint and requested a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes.

At the formal hearing, Petitioner presented the testimony of Respondent Robert Iver; George Headley, investigation specialist to the Department of Professional Regulation; Frank Norwitch, a handwriting expert within the crime laboratory of the Metro Dade Police Department; and Jeffrey Steiner, one of Respondent's patients. Petitioner's Exhibits 1(a), 1(b), 1(c), 2 and 3 were duly offered and admitted into evidence. The Respondent presented no witnesses. Respondent's Exhibit 1 was duly offered and admitted into evidence. The parties have submitted post-hearing proposed findings of fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.

FINDINGS OF FACT

Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record Compiled herein, I hereby make the following findings of fact:

1. Respondent Robert D. Iver is a licensed dental practitioner in the State of Florida. Respondent's office is located at 1205 Lincoln Road, Miami Beach, Florida.

   
   

   Count One

   
   

2. On July 25, 1985, Jeffery Steiner went to Respondent's office for an appointment for dental services concerning extensive ongoing treatment for upper arch reconstruction.

   
   

3. When Steiner first arrived at Respondent's office he informed the receptionist that he would like to receive some type of medication prior to "sitting in the dentist's chair," apparently because of anticipated pain during the treatment. The receptionist left the reception area briefly and returned a few moments later to give Steiner a prescription for ten (10) Percodan tablets which bore the apparent signature of the Respondent.

   
   

4. None of the handwriting contained on the prescription for ten (10) Percodan tablets was that of the Respondent. Additionally, the signature contained on the prescription was not the Respondent's.

   
   

5. After treating Steiner on July 25, 1985, Respondent gave him a prescription for ten (l0) Percocets. Respondent was unaware of the Percodan prescription and would not have prescribed the two different drugs on the same day.

   
   

   Count Two

   
   

6. During the initial investigation of the instant case, DPR Investigator Headley retrieved two prescriptions from Hotel Pharmacy for a boat emergency kit which were written on stationery bearing the Respondent's name. One prescription was for ten (10) Tuinal and the other was for ten (10) Percodan. The prescription for Tuinal was dated August 24, 1985. The prescription for ten

   (10) Prcodan was not dated.

   
   

7. The Respondent wrote and signed the prescription for the ten (10) Tuinal but did not personally fill in the name and address lines. Respondent wrote the prescription for the ten (10) Percodan and may have signed the form, but did not fill in the name and address lines.

   
   

8. Pursuant to procedures sometimes employed in the Respondent's office when a prescription is written, the office personnel fills in the name and address lines and the Respondent writes out the medical prescription and signs the form.

   
   

9. There was no evidence presented indicating that the signatures for the Tuinal and Percodan prescriptions were affixed on blank prescription forms.

   
   

10. On August 24, 1985, the Respondent was out of town visiting his brother in California. While the Respondent was away, his office was

    burglarized and the storeroom in which he kept blank prescription pads was broken into.

    
    

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to, and subject matter of, these proceedings. Section 120.57(1), Florida Statutes.

    
    

12. The Petitioner, Board of Dentistry, within the Department of Professional Regulation, is the state agency charged with the responsibility of regulating the practice of dentistry pursuant to Chapter 466, Florida Statutes.

    
    

13. In Count One of the Administrative Complaint, Petitioner alleges that Respondent prescribed Percodan for Steiner but did not sign the prescription form, thereby violating Section 893.04(1)(b), Florida Statutes, which requires a written prescription to be dated and signed by the prescribing practitioner on the date when issued. This, in turn, would represent a violation of Section 466.028(1)(i), Florida Statutes, which requires the practitioner to perform any statutory or legal obligation imposed by law. Although Jeffrey Steiner received a prescription for Percodan prior to the time he was seen by Respondent during his appointment on July 25, 1985, the evidence failed to show that the Respondent wrote any portion of that prescription. The Respondent is not guilty as charged in Count One of the Administrative Complaint.

    
    

14. In Count Two of the Administrative Complaint, Respondent is charged, in connection with the boat emergency kit prescriptions; with violating Section 466.028(1)(ee), Florida Statutes, by pre-signing blank prescription forms and with violating Section 466.028(1)(i), Florida Statutes, by failing to perform any statutory or legal obligation placed upon a licensee.

    
    

15. Section 466.028(1)(e), Florida Statutes, provides that disciplinary action may be taken against a licensee for "pre-signing blank prescription forms." There was no proof that Respondent pre-signed the Tuinal or Percodan prescriptions. Petitioner's handwriting expert could offer no testimony as to when the signatures were affixed in relation to when the remainder of the writing was placed on the prescription form.

    
    

16. Section 466.028(1)(i), Florida Statutes, requires the licensee to perform any statutory or legal obligation placed upon him or her by law. The Administrative Complaint does not allege that statutory obligation, other than that imposed by Section 466.028(1)(ee) Florida Statutes; that Respondent violated in connection with the emergency boat kit prescription. The Petitioner, in its proposed recommended order, asserts that the Respondent violated Section 893.04(1)(c)(1), Florida Statutes, which provides that a pharmacist may only dispense a controlled substance when the full name and address of the person for whom the drug is dispensed appears on the face of the written prescription. This statutory provision was cited for the first time in the Petitioner's proposed recommended order and was not included in the Administrative Complaint nor mentioned at the formal hearing. Fundamental fairness requires that an Administrative Complaint apprise the Respondent of the statutory basis of the alleged misconduct so that the Respondent may adequately prepare a factual or legal defense. See Seminole Board of County Commissioners

    v. Long, 422 So.2d 93 (Fla. 5th DCA 1971). Furthermore, Section 893.04(1)(c)(1), Florida Statutes, is intended to provide guidelines for pharmacists in the dispensing of controlled substances, and does not directly

    establish the prescribing practitioner's responsibilities. The Respondent is not guilty as alleged in Count Two of the Administrative Complaint.

    
    

17. The Respondent argues that Petitioner has failed to prove that at all times material hereto, Respondent was a licensed dentist in the State of Florida and, that the Respondent is the same person that held the license sought to be disciplined. Although the Petitioner failed to introduce any evidence from the Board of Dentistry regarding Respondent's licensure, the Respondent's argument is without merit in the instant case. The Respondent, Robert Iver, was called as a witness by the Petitioner at the formal hearing. The Respondent testified that he is a licensed dental practitioner in the State of Florida and indicated that his office address was 1205 Lincoln Road, Miami Beach, Florida. The Respondent went on to answer questions presented by the Petitioner concerning the charges herein which responses established that Respondent was engaged in the practice of dentistry in the State of Florida during the times alleged in the Administrative Complaint.

RECOMMENDATIONS

Based on the foregoing findings of fact and conclusions of lawn it is RECOMMENDED that the Board of Dentistry enter a Final Order dismissing the

Administrative Complaint herein.

DONE AND ORDERED this 7th day of August, 1987, in Tallahassee, Leon County, Florida.

W. MATTHEW STEVENSON 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 7th day of August, 1987.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2003

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

Rulings on Proposed Findings of Fact Submitted by the Petitioner

1. Adopted in substance in Finding of Fact 1.

2. Adopted in substance in Finding of Fact 7.

3. Adopted in substance in Finding of Fact 7.

Rulings on Proposed Findings of Fact Submitted by the Respondent

1. Partially adopted in Finding of Fact 1, matters not contained therein are addressed in the Conclusions of Law section.

2. Adopted in substance in Finding of Fact 6.

3. Adopted in substance in Finding of Fact 6.

4. Rejected as subordinate and/or unnecessary.

5. Rejected as subordinate and/or unnecessary.

6. Rejected as subordinate and/or unnecessary.

7. Adopted in substance in Finding of Fact 2.

8. Adopted in substance in Finding of Fact 3.

9. Adopted in substance in Finding of Fact 5.

10. Adopted in substance in Finding of Fact 10.

11. Adopted in substance in Finding of Fact 10.

12. Adopted in substance in Finding of Fact 4.

13. Adopted in substance in Findings of Fact 7 and 8.

14. Partially rejected as contrary to the weight of the evidence. The evidence indicated that Respondent in fact signed the Tuinal prescription and may have signed the Percodan prescription.

15. Adopted in substance in Finding of Fact 9.

COPIES FURNISHED:

Dirk Young, Esquire

320 Southeast Ninth Street Fort Lauderdale, Florida 33316

Harold M. Braxton, Esquire Suite 406, One Datran Center 9100 South Dadeland Boulevard Miami, Florida 33156

Pat Guilford Executive Director Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32399-0750

Honorable Van B. Poole Secretary

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Joseph A. Sole, Esquire General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Docket for Case No: 86-002003

Orders for Case No: 86-002003