STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 89-1964

)

MALIVIDA PALOMEQUE, D. D. S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Hearing Officer of the Division of Administrative Hearings, on July 26, 1989, in Miami, Florida.

APPEARANCES

For Petitioner: Jack L. McRay, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Harold M. Braxton, Esquire

9100 South Dadeland Boulevard, Suite 406

Miami, Florida 33156 STATEMENT OF THE ISSUES

Whether Respondent, a licensed dentist, violated Chapter 466, Florida Statutes, by aiding, assisting, procuring, or advising an unlicensed person to practice dentistry or dental hygiene or by delegating professional responsibilities to a person not qualified by training, experience, or licensure to perform them?

PRELIMINARY STATEMENT

On October 20, 1988, Petitioner filed an Administrative Complaint against Respondent seeking to discipline Respondent and her license to practice dentistry in the State of Florida. Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. Accordingly, this cause was transferred to the Division of Administrative Hearings for the conduct of a formal hearing.

Petitioner presented the testimony of Loretta Levantini; J. L.; Peter Keller, D. D. S.; and Georgina Jorge. Additionally, Petitioner's Exhibits numbered 1-4 were admitted in evidence.

The Respondent testified on her own behalf and presented the testimony of Julietta Guevara, Teresa Isabel Palomeque, Maria Eugenia Garcia, and Cesar L. Palomeque. Additionally, Respondent's Exhibits numbered 1-4 were admitted in evidence.

Both parties submitted post-hearing proposed findings of fact in the form of proposed recommended orders. A specific ruling on each proposed finding of fact can be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times material hereto, Respondent has been licensed to practice dentistry in the State of Florida, having been issued license number DN 0006941.

   
   

2. In May, 1987, Respondent's son Cesar L. Palomeque was neither licensed as a dentist in the State of Florida nor as a dental hygienist. He became a licensed dentist in the State of Florida in August, 1987.

   
   

3. Cesar L. Palomeque was employed by Respondent and worked in her office during May of 1987. At that time Respondent knew that Cesar Palomeque was not a licensed dentist or a licensed dental hygienist.

   
   

4. In early May of 1987, J.L.'s mother and grandmother were in a cafeteria/bakery located downstairs from Respondent's dental office in Hialeah. J.L.'s grandmother struck up a conversation with a gentleman who was there. He introduced himself to the women as Cesar Palomeque, told them that he was a dentist who practiced upstairs, and encouraged them to visit him professionally since he charged quite reasonable prices.

   
   

5. Pursuant to an appointment made by his mother, on May 13, 1987, J.L. went to Respondent's Hialeah office. On that date, patient J.L. had x-rays taken, received a prophylaxis and scheduled further treatment. He returned for that subsequent treatment on May 20, 1987.

   
   

6. During May of 1987, Respondent's dental office consisted of a waiting area and a large operatory. The operatory consisted of three treatment bays. The treatment bays were separated from each other only by partitions which extended a few feet up from the floor. Although patients seated in a chair in one of the treatment bays could not see a patient in one of the other treatment chairs due to the partition, everything occurring within one of the treatment bays could be heard throughout the room, and a person standing anywhere in the room could see what was taking place within any of the treatment bays.

   
   

7. On May 20th, J.L. was escorted into the operatory and placed in one of the treatment bays by Cesar Palomeque. At the time that Cesar Palomeque escorted J.L. into the operatory and placed him in one of the treatment chairs, Respondent and her dental assistant were working on a patient in the first treatment bay. Cesar Palomeque placed J.L. in one of the chairs, placed a bib on him, laid out instruments and filled the water cup.

   
   

8. During the time J.L. was in the chair on May 20th, he was very nervous and restless since he knew he was going to have a tooth drilled and filled. He would not open his mouth and was very uncooperative. Cesar Palomeque spoke with the boy and attempted to comfort him unsuccessfully.

   
   

9. Cesar Palomeque summoned J.L.'s mother into the operatory because J.L. was so uncooperative. J.L.'s mother came into the operatory, stood a few feet

   away from the chair in which her son was seated, told him to be cooperative, and stayed there observing during the balance of the treatment her son received that day.

   
   

10. On May 20, 1987, Cesar Palomeque drilled and filled one of J.L.'s teeth.

    
    

11. While Cesar Palomeque was drilling and filling J.L.'s tooth, Respondent could hear the disturbance created by J.L. and could see the treatment being rendered to J.L. by Cesar Palomeque. She knew at the time that Cesar Palomeque was drilling and filling J.L.'s tooth.

    
    

12. On May 13 or on May 20, 1987, when J.L. was leaving Respondent's office, he was given a tooth brush bearing the inscription "Dr. Cesar Palomegue."

    
    

13. Drilling and filling a tooth is a non-reversible dental procedure. It constitutes the practice of dentistry.

    
    

14. All monies paid to Respondent for services rendered to J.L. were refunded.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

16. The single-count Administrative Complaint filed in this cause alleges that Respondent has violated Sections 466.028(1)(g) and (aa), Florida Statutes. Subsection (g) prohibits aiding, assisting, procuring, or advising any unlicensed person to practice dentistry or dental hygiene. Subsection (aa) prohibits delegating professional responsibilities to a person who is not qualified by training, experience, or licensure to perform them. Petitioner has met its burden of proving that Respondent violated both Subsection (g) and Subsection (aa) by knowingly permitting her son, an unlicensed individual, to practice dentistry in her presence when Cesar Palomeque drilled and filled J.L.'s tooth on May 20, 1987. Accordingly, Respondent has violated Sections 466.028(1)(g) and (aa), Florida Statutes, as alleged in the Administrative Complaint filed against her in this cause.

    
    

17. In its proposed recommended order Petitioner suggests that the appropriate disciplinary action to be taken against Respondent based on the facts of this case includes a reprimand, an administrative fine of $3,000.00, required attendance at 20-30 hours of continuing education courses in ethics, probation for one year, and a 6-month suspension of Respondent's license to practice dentistry. This is a single-count Administrative Complaint. Section 466.028(3) provides that a dentist who has violated Subsection (aa) shall receive a minimum 6-month suspension of licensure. Imposing a reprimand in addition to a 6-month suspension of licensure is superfluous. Similarly, fining the Respondent the sum of $3,000.00 in addition to suspending her right to earn a living for 6 months is inappropriate--Respondent realized no financial gain from the services rendered to J.L. It is certain that Respondent will feel the financial ramifications of her action pursuant to the 6- month minimum mandatory suspension. Likewise, requiring Respondent to attend 20-30 hours of continuing education in ethics is not more likely to impress upon her the need to refrain from allowing unlicensed persons to practice dentistry any more than the 6-month

suspension will do. It is likely that Respondent will remember the importance of prohibiting the unlicensed practice of dentistry by virtue of the fact that she will be unable to practice dentistry for 6 months.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is,

RECOMMENDED that a Final Order be entered finding Respondent guilty of the allegations contained in the Administrative Complaint filed against her in this cause and suspending Respondent's license to practice dentistry for a period of six months.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 31st day of October, 1989.

LINDA M. RIGOT

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 31st day of October, 1989.

APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 89-1964

1. Petitioner's proposed Findings of Fact numbered 1, 3, 4, and 7-12 have been adopted either verbatim or in substance in this Recommended Order.

   
   

2. Petitioner's proposed Finding of Fact numbered 2 has been rejected as being unnecessary for determination of the issues in this cause.

   
   

3. Petitioner's proposed Finding of Fact numbered 5 has been rejected as being subordinate to the issues under determination in this cause.

   
   

4. Petitioner's proposed Finding of Fact numbered 6 has been rejected as not being supported by the weight of the evidence in this cause.

   
   

5. Respondent's proposed Findings of Fact numbered 3-8, 10, 11, 14, and 19 have been adopted either verbatim or in substance in this Recommended Order.

   
   

6. Respondent's proposed Findings of Fact numbered 1, 2, 9, 12, 13, 16, and 18 have been rejected as being unnecessary for determination of the issues in this cause.

   
   

7. Respondent's proposed Findings of Fact numbered 15 and 20-23 have been rejected as being contrary to the weight of the credible evidence in this cause.

8. Respondent's proposed Findings of Fact numbered 17 and 24 have been rejected as being irrelevant to the issues under consideration in this proceeding.

COPIES FURNISHED:

Jack L. McRay, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

Harold M. Braxton, Esquire 9100 South Dadeland Boulevard Suite 406

Miami, Florida 33156

Kenneth E. Easley, General Counsel Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida 32399-0792

William Buckhalt, Executive Director Department of Professional Regulation Board of Dentistry

1940 North Monroe Street Tallahassee, Florida 32399-0792

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF DENTISTRY

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

DOAH CASE NUMBER 89-1964

vs. CASE NUMBER 0090919

LICENSE NUMBER DN0006941

MALIVIDA PALOMEQUE,

Respondent.

/

FINAL ORDER

THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on December 8, 1989, in Gainesville, Florida, for consideration of the Hearing Officers Recommended Order (a copy of which is attached as Exhibit A) in the case of Department of Professional Regulation v. Malivida Palomeque, Case Number 89-1964. At the hearing, Petitioner was represented by Nancy M. Snurkowski, Esquire. Respondent was present and represented by Harold Braxton, Esquire. Upon consideration of the Hearing Officer's Recommended Order, after review of the entire record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions.

FINDINGS OF FACT

1. The Hearing Officer's Findings of Fact are approved and adopted and are incorporated herein by reference.

   
   

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

CONCLUSIONS OF LAW

1. The Board has jurisdiction of the parties and subject matter of this case pursuant to Section 120.57 and Chapter 466, Florida Statutes.

   
   

2. Paragraphs one and two of the Hearing Officer's Conclusions of Law are approved and adopted and are incorporated herein by reference.

   
   

3. Paragraph three of the Hearing Officer's Conclusions of Law is rejected to the extent and for the reasons herein noted. The Hearing Officer improperly concluded that a reprimand was a superfluous penalty in light of the statutorily required penalty of a six month suspension of licensure. The Hearing Officer improperly concluded that a fine was inappropriate since "Respondent realized there was no financial gain from the services rendered to J.L." Although the record reflects that monies paid to Respondent for services rendered to J.L. were refunded, this cannot serve as mitigation of unlicensed practice. Protection of the public from unlicensed practitioners demands more than ensuing that money received for such services is not retained. The Hearing Officer failed to consider the Board's disciplinary guidelines set forth in Rule 21G- 13.005(1), F.A.C., which requires a fine and reprimand for each disciplinary ground. The Board has determined that a reprimand is appropriate in conjunction with a suspension and the record does not reflect mitigating factors to justify departure from established guidelines.

   
   

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

   
   

5. The Board approves and adopts the Hearing Officer's recommendation that Respondent's license to practice dentistry be suspended for six months and further determines that Respondent should be reprimanded and assessed an administrative fine of one dollar.

WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent violated Section 466.028(1)(g), Florida Statutes, by having aided, assisted or procured the unlicensed practice of dentistry and Section 466.028(1)(aa), Florida Statutes by having delegated professional responsibilities to a person who is not qualified

by training, experience or licensure to perform them. Respondent is hereby REPRIMANDED and SUSPENDED from the practice of dentistry for six months.

Further Respondent is assessed an administrative fine of one dollar.

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 Department of Professional Regulation 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 11th day of January, 1989.

Richard J. Chicetti, D.M.D. 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 United States Mail this 11th day of January, 1989, to Malivida Palomeque, 4240 West 16th Avenue, Hialeah, Florida 33012; Harold Braxton, Esquire, 9100 South Dadeland Boulevard, Suite 406, Miami, Florida 33156 and hand delivered to Nancy M. Snurkowski, Esquire, 130 North Monroe Street, Tallahassee, Florida 32399-0750.

William H. Buckhalt, C.P.M. Executive Director

Board of Dentistry

130 North Monroe Street Tallahassee, Florida 32399-0750 (904)488-6015

Docket for Case No: 89-001964

Orders for Case No: 89-001964