STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 88-3043

) RICHARD W. LEONG, JR., D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held on October 25, 1988, in Melbourne, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

The parties were represented as follows:

For Petitioner: David E. Bryant, Esquire

500 North Tampa Street Tampa, Florida 33602

For Respondent: Salvatore A. Carpino, Esquire

One Urban Center, Suite 750 Tampa, Florida 33607

BACKGROUND

On May 15, 1988, Petitioner filed an Administrative Complaint against Respondent with respect to a newspaper advertisement placed by Respondent concerning dental implants and the American Academy of Implant Prosthodontics. The Administrative Complaint alleged that the advertisement implied that Respondent specializes in implantology when no such specialty exists and that the American Academy of Implant Prosthodontics is a recognized specialty group when it is not. The Administrative Complaint also alleged that the advertisement contained a laudatory statement.

Based on these allegations, the Administrative Complaint alleged that Respondent had violated Section 466.028(1)(d) and (bb), Florida Statutes. Section 466.028(1)(d) prohibits advertising goods or services in a manner that is fraudulent, false, deceptive, or misleading in form or content, contrary to Section 466.019, Florida Statutes, or the rules of the Board of Dentistry.

Section 466.028(1)(bb) prohibits the violation of any provision of Chapter 455 or 466, or the rules promulgated thereunder.

On June 6, 1988, Respondent filed an Election of Rights disputing the factual allegations and requesting a formal hearing.

At the hearing, Petitioner called five witnesses and offered into evidence seven exhibits. Respondent called three witnesses and offered into evidence fifteen exhibits. All exhibits were admitted into evidence. Petitioner's Exhibit 5, which was the resume of Dr. Edward F. Baines, was returned to counsel for copying and was to be filed after the hearing. It was never filed and is thus omitted from the exhibits included in the record. The omission is immaterial in view of the detailed testimony from the witness concerning his background.

Only Petitioner filed a proposed recommended order. Treatment accorded the proposed findings is detailed in the Appendix.

FINDINGS OF FACT

1. Respondent received a Bachelor of Arts degree from the University of Texas at Austin in 1967 with a biology/predental major. He received a Doctor of Dental Science degree from the University of Tennessee at Memphis in 1970.

   After three and one-half years' service as a dentist in the Air Force, Respondent was licensed as a dentist in Florida in 1974 and has maintained the license continuously thereafter. At all material times, Respondent has practiced at 400 South Babcock Street in Melbourne. Respondent's license number is DN 0006419.

   
   

2. A major portion of Respondent's practice involves the area of implant prosthodontics. Prosthodontics is prosthetic dentistry. Prosthetics involves the artificial replacement of missing parts of the body. Implant prosthodontics involves the insertion of an anchoring device into living tissue, such as the gum or upper or lower jaw, followed by the attachment of the artificial body part, such as crowns or dentures, to the anchoring device. The anchoring devices may be on bone, such as a blade in a notch on the surface of the bone, or in bone, such as post screwed into the bone.

   
   

3. Respondent has treated over 1000 implant prosthodontic patients since 1975. Approximately, 75% of Respondent's current practice is devoted to dental implants, with about 25% of these cases requiring what are known as full-arch implants. Full-arch implants involve the insertion of implants throughout the entire upper or lower portion of the mouth. Respondent's experience in dental implants is substantially greater than the experience of a large majority of other dentists in the Melbourne area and Florida as well.

   
   

4. Respondent presently holds a masters membership in the American Academy of Implant Prosthodontics. The mastership, which is the highest level of membership in the American Academy of Implant Prosthodontics, requires 750 hours of dental implant education, written and oral examinations, and over 50 whole arch cases.

   
   

5. Respondent is also affiliated with the American Dental Association, Florida Dental Association, American Academy of Implant Dentistry, Academy of General Dentistry, International Congress of Oral Implantology, and various other professional groups. Respondent is the Cochairman of the Implantology Division of the Atlantic Coast Research Group, which is a clinic in which approximately 250 dentists are involved in postgraduate teaching and clinic work in the area of dentistry.

   
   

6. The American Academy of Implant Prosthodontics has only 44 active members who are practicing dentists. The organization's directors and officers are nationally recognized leaders in the area of implant prosthodontics. These

   persons have consciously decided to limit membership in their organization to insure that the members meet relatively high standards. Seeking greater public exposure, however, the membership of the American Academy of Implant Prosthodontics voted at its general membership meeting on September 26, 1986, to develop a Marketing Program. The membership selected Respondent to head the program.

   
   

7. Respondent subsequently caused the preparation of an advertisement to be placed in a newspaper. Prior to doing so, he first obtained the approval of Chairman of the American Academy of Implant Prosthodontics as to the contents of the advertisement and its publication.

   
   

8. Respondent thereafter caused the advertisement to be published in the Florida Today newspaper on April 19, 1986.

   
   

9. The lack of response discouraged the organization and Respondent from placing additional advertisements.

   
   

10. The advertisement measured about five inches by eight inches. The top of the advertisement stated, in average-sized letters, "The American Academy of Implant Prosthodontics wants you to," then, in the largest letters in the ad, "SMILE with confidence." The right-hand side of the ad states that dental implants "restore confidence and self esteem," "allow you to eat most any food," "are strong and durable," and "are attractive, functional, fixed replacements for dentures, plates and lost teeth." In the middle of the ad appears the statement: "The highly skilled and exceptionally qualified practitioners in the American Academy of Implant Prosthodontics are ready to serve you!" Beneath this statement is the seal of the organization, which consists of a smoking genie's lamp in front of an open book. Beneath the seal is an address in Atlanta, Georgia, for the American Academy of Implant Prosthodontics and, beneath the address, in large letters, the statement that "Dental Implants can change your future!" On the left-hand side of the ad, beneath the "Smile" heading, is a picture of an attractive female face smiling so as to display- attractive teeth. Beneath the picture of the smiling woman are four names and addresses beginning with that of Respondent in noticeably larger type. The other three names are those of prominent, out-of-state dentist- members of the American Academy of Implant Prosthodontics. Of these four listings, only Respondent's includes a telephone number.

    
    

11. The advertisement was not fraudulent, false, deceptive, or misleading.

    
    

12. The advertisement did not imply that Respondent specializes in dental implantology. The advertisement did not imply that the American Academy of Implant Prosthodontic is a specialty group recognized by the Board of Dentistry or American Dental Association. There was no evidence that any reasonable reader of the advertisement drew such inferences or was likely to draw such inferences

    
    

13. The advertisement implied but did not state that the four persons named, including Respondent, were members of the American Academy of Implant Prosthodontics.

    
    

14. The advertisement contained a laudatory statement: i.e., that the members of the American Academy of Implant Prosthodontics were "highly skilled and exceptionally qualified practitioners." However, this statement is not false, fraudulent, deceptive, or misleading. By any reasonable standard of comparison, Respondent is highly skilled and exceptionally qualified to perform

    dental implants or implant prosthodontics. There was no evidence that the other dentists named in the advertisement were any less qualified.

    
    

15. In nearly 15 years of practice in Florida, Respondent has had only one prior disciplinary complaint, which was dismissed as groundless without the necessity of a hearing.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Petitioner has jurisdiction over the disciplining of licenses of dentists. Section 466.028(2), Florida Statutes, Florida Statutes.

    
    

18. Discipline against a licensee may be imposed if he advertises goods or services in a manner which is "fraudulent, false, deceptive, or misleading in form or content contrary to s. 466.019 or [the] rules [promulgated thereunder]." Section 466.028(d), Florida Statutes.

    
    

19. Discipline against a licensee may be imposed if he violates Chapter 466, Chapter 455, or any rules promulgated thereunder. Section 466.028 (bb), Florida Statutes.

    
    

20. Section 416.019(2)(c), Florida Statutes, prohibits an advertisement from containing any "false, fraudulent, misleading, or deceptive statement or claim or any statement or claim which contains laudatory statements about the dentist or group of dentists."

    
    

21. Rule 21G-4.002(3), Florida Administrative Code, generally prohibits fraudulent, false, deceptive, or misleading advertising.

    
    

22. Additionally, Rule 21G-4.002(3)(c) prohibits any advertisement that "contains laudatory statements about a dentist or group of dentists." Dentists may advertise any specialty recognized by the Board of Dentistry if the dentist is eligible for examination by the national specialty board, if he is a diplomat of one of the national specialty boards recognized by the Board of Dentistry, of if he has continuously held himself out as a specialist in the advertised area since December 31, 1964. "For the purpose of this rule, the Board [of Dentistry] recognizes only those national specialty boards which are recognized by the American Dental Association." This subsection concludes: "The Board [of Dentistry] finds that it is misleading for a dentist who is not [in one of the three above- mentioned categories] to advertise that he limits his practice to that specialty area unless he advertises in the following manner: "General Dentist, Practice Limited to (particular specialty area)."

    
    

23. Petitioner must prove the allegations of the Administrative Complaint by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

24. Moreover, Petitioner is limited to proving, as a basis for liability, only those facts that are alleged in the Administrative Complaint. See, e.g., Sternberg v. Department of Professional Regulation, 465 So.2d 1324 (Fla. 1st DCA).

    
    

25. Petitioner has failed to prove the allegation contained in Paragraph 4 of the Administrative Complaint that the advertisement implied that Respondent

    specializes in implantology. The advertisement implies certain expertise in the area of implant prosthodontics, but does not necessarily imply that Respondent has had to specialize in this area in order to gain such expertise.

    
    

26. Petitioner has failed to prove the allegation contained in Paragraph 6 of the Administrative Complaint that the advertisement implied that the American Academy of Implant Prosthodontics is a recognized specialty group. The allegation apparently refers to a specialty group recognized by the Board of Dentistry or American Dental Association. However, the advertisement says nothing about either of these groups and in no way implies that either group has recognized the American Academy of Implant Prosthodontics.

    
    

27. Petitioner has proven that the advertisement contains a laudatory statement insofar as it expresses praise for the practitioners in the American Academy of Implant Prosthodontics. By implication, this laudatory statement refers to Respondent and the three other dentists by virtue of the obvious implication in the advertisement that they are members of the organization. Although the laudatory statement in the advertisement is not false, fraudulent, misleading, or deceptive, such a statement is prohibited by Section 466.019(2)(c), Florida Statutes, even in the absence of such fraud or deceit.

    
    

28. The statutory penalty for a violation of any provision of Section

    466.028 includes a reprimand, administrative fine of not more than $3000, placing the license on probation, or suspension or revocation of the license. Section 466.028(2), Florida Statutes.

    
    

29. Rule 21G-13.005(3)(e), Florida Administrative Code, suggests that an advertisement containing a "technical error" shall ordinarily be subject to "no penalty other than that prescribed in Section (1) of this rule for all violations." Rule 21G-13.005(3) provides that, in the absence of mitigating factors, the penalty shall always include a reprimand and fine not to exceed

$3000 per count. In this case, the mitigating factors include the absence of any prior disciplinary record, Respondent's achievements in the area of implant prosthodontics, the truth of the laudatory statements, and the absence of any evidence whatsoever of public confusion or injury.

RECOMMENDATION

In view of the foregoing, it is hereby

RECOMMENDED that a Final Order be entered finding Respondent guilty of causing the publication of an advertisement containing a laudatory statement with respect to himself and three other dentists and issuing a reprimand.

ENTERED this 18th day of January, 1989, in Tallahassee, Florida.

ROBERT E. MEALE

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 18th day of January, 1989.

APPENDIX

Treatment Accorded Petitioner's Proposed Findings of Fact 1-4. Adopted.

5. Rejected as unsupported by the evidence.

6 and 7 (first sentence). Rejected as irrelevant. The subject allegations require more than merely laudatory statements to render an advertisement legally objectionable. Without proof of fraud or deceit, the fact that a portion of the advertisement was laudatory is irrelevant.

1. (remainder). Rejected as unsupported by the greater weight of the evidence.

   
   

2. Through the word, "certainty," rejected as irrelevant. (See above.) Remainder rejected as legal argument.

   
   

3. Rejected as unsupported by the evidence.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609

David Bryant, Esquire

500 Tampa Street Tampa, Florida 33602

William Buckhalt Executive Director Board of Dentistry

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0750

Bruce D. Lamb General Counsel

Department of Professional Regulation

130 North Monroe Street Tallahassee, Florida 32399-0570

Docket for Case No: 88-003043

Orders for Case No: 88-003043