STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs ) CASE NO. 90-6182

)

PHILLIP OKIN, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings on May 8, 1991, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, Florida

For Respondent: Salvatore A. Carpino, Esquire

One North Dale Mabry, Suite 1010 Tampa, Florida

STATEMENT OF THE ISSUES

The issue for determination in this proceeding is whether Respondent failed to include a fee disclaimer in an advertisement for a free consultation and caused the publishing of an advertisement that contained statements which were likely to be misleading or deceptive.

PRELIMINARY STATEMENT

Petitioner filed two Administrative Complaints against Respondent on July 28, 1989, and August 17, 1990. Respondent requested a formal hearing by letters dated August 8, 1989, and September 7, 1990. The matters were referred to the Division of Administrative Hearings for assignment of a hearing officer, and assigned to Hearing Officer J. Stephen Menton on October 4, 1990. The two proceedings were not consolidated pursuant to the Order entered on October 19, 1990, but were scheduled for one formal hearing in the interest of economy and efficiency. A formal hearing was scheduled for May 8-9, 1991, pursuant to the Order Granting Motion To Amend and Continuing Hearing entered on January 23, 1991. 1/ The separate matters were transferred to the undersigned on May 6, 1991.

At the formal hearing, Petitioner presented the testimony of Dr. Stewart Moraitis, who was accepted as an expert witness. Petitioner submitted two exhibits for admission in evidence. Petitioner's Exhibits 1 and 2 were admitted in evidence without objection. Respondent testified in his own behalf and submitted one exhibit which was admitted in evidence without objection.

A transcript of the record of the formal hearing was requested by Petitioner and filed with the undersigned on June 3, 1991. Proposed findings of fact and conclusions of law were originally due from the parties on July 3, 1991. The time for filing proposed findings of fact and conclusions of law was extended until August 2, 1991, in response to Respondent's Motion for Enlargement Time filed on July 11, 1991. Petitioner's proposed findings of fact and conclusions of law were timely filed on July 3, 1991. Respondent's proposed findings of fact and conclusions of law were timely filed on August 2, 1991.

The parties' proposed findings of fact are addressed in the Appendix to this Order.

FINDINGS OF FACT

1. Petitioner is the state licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed dentist in the state, holding license number DN 0005278.

   
   

2. Respondent caused an advertisement to be published in the Plantation Issue of The Community News on November 9, 1988. The advertisement contained headlines that, in relevant part, provided:

   
   

   Dr. Philip B. Okun, Oral Implantologist, Asks: "Are You Tired of Living Hand to Mouth?" [and] Dr. Philip B. Okun, D.D.S., the Oral Implantologist you've been meaning to call (emphasis added)

   
   

3. The statements that Respondent is an oral implantologist were likely to be misleading or deceiving because in context they made only a partial disclosure of relevant facts. Oral implantology is not a recognized specialty by the Board of Dentistry or the American Dental Association. Use of the term "oral implantologist" in the advertisement without a disclosure that implantology was not a recognized specialty suggested that Respondent had a status that he does not actually possess.

   
   

4. The statements that Respondent is an oral implantologist in reasonable probability would cause an ordinary prudent person to misunderstand or be deceived. Use of the term "oral implantologist" suggests that oral implantology is a recognized specialty by an appropriate rulemaking body and that Respondent is a member of such a specialty group.

   
   

5. The potential for misunderstanding by a layman was increased by laudatory statements concerning Respondent's credentials in the field of implantology. The advertisement provided in relevant part:

   
   

   Dr. Okun is a Master and Fellow of the American Academy of Implant Prosthodontics,, [and] a Fellow of the International Congress of Oral Implantologists . .

6. The advertisement contained fee information in the form of two solicitations for a free consultation without a disclaimer. The advertisement stated in relevant part:

   
   

   Come in for a free consultation and

   let's plan an effective course of action . . . To arrange a free consultation, telephone

   472-2000. (emphasis added)

   
   

   No disclaimer was included in the advertisement.

   
   

7. Respondent caused the advertisement to be published on only one occasion. Respondent was advised by the public relations firm that wrote the advertisement that it complied with applicable rules and relied upon that advice. Respondent withdrew the advertisement when he learned that the advertisement violated applicable rules and has not caused the advertisement to be published again.

   
   

8. Respondent in fact performs dental implants in his practice and possesses substantial skill and experience in performing dental implants. Respondent has over 1,000 hours of continuing dental education pertaining to dental implants, and dental implants comprise approximately 50 percent of Respondent's practice.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this proceeding pursuant to Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

10. The burden of proof is on Petitioner to show by clear and convincing evidence that Respondent committed the acts alleged in the Administrative Complaint and that the penalties requested by Petitioner should be imposed. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

11. Petitioner showed by clear and convincing evidence that Respondent violated Sections 466.028(1)(d) and (bb), Florida Statutes, and Florida Administrative Code Rule 21G-13.005(3). The advertisement that Respondent caused to be published was deceptive in form and content within the meaning of Sections 466.019(2)(b), (h), and 466.028(1)(d) and Rule 21G-13.005(3)(e). The advertisement contained two solicitations for free consultation without a fee disclaimer in violation of Sections 455.24 and 466.019(2)(g).

    
    

12. A licensee who is found guilty of violating Sections 466.028(1)(d) and (bb), Florida Statutes, and Florida Administrative Code Rule 21G-13.005(3) is subject to one or more of the penalties prescribed in Section 466.028(2). Those penalties include a reprimand, administrative fine of not more than $3,000, probation, suspension, or revocation.

    
    

13. Florida Administrative Code Rule 21G-13.005(1) provides that an administrative fine not to exceed $3,000 and reprimand shall be imposed for a violation of Rule 21G-13.005(3) unless mitigating factors are present. 2/ Mitigating factors that are present in this proceeding include the fact that the violation was an isolated event, the absence of any evidence of actual harm to the public, the absence of any evidence of prior disciplinary history, timely

efforts by the licensee to correct or terminate the advertisement, Respondent's skill and experience in the area of implantology, and the truth of the laudatory statements.

RECOMMENDATION

Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner should enter a Final Order finding Respondent

guilty of the allegations in the Amended Administrative Complaint and issuing a

written reprimand against Respondent.

DONE and ENTERED this 3rd day of September 1991, in Tallahassee, Leon County, Florida

DANIEL MANRY

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 6th day of September, 1991.

ENDNOTES

1/ Petitioner filed a Motion To Amend she Administrative Complaint in Case No. 90-6173 on December 27, 1990. The Administrative Complaint in Case No. 90-6182 was not amended.

2/ Fla. Admin. Code Rule 21G-13.005(3)(e) provides that the usual discipline shall be to impose no penalty except that prescribed in Rule 21G-13.005(1) if the violation is a technical violation. Probation is prescribed for a non- technical violation.

APPENDIX TO RECOMMENDED ORDER CASE NO. 90-6182

Petitioner submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph numbers in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Petitioner's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Accepted in Finding 1

2. Accepted in Finding 2

3. Accepted in Finding 6

4. Accepted in Finding 2

5, 6 Accepted in Finding 3

7 Accepted in Finding 4

Respondent submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted.

The Respondent's Proposed Findings of Fact

Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection

1. Accepted in Conclusions of Law

2. Rejected as immaterial

3. Accepted in Finding 7

4. Accepted in Finding 8

5. Rejected for the reasons stated in Findings 3-5

6. Accepted in Finding 6

COPIES FURNISHED:

Darlene F. Keller, Director Division of Real Estate Department of Professional

Regulation

400 West Robinson Street

P.O. Box 1900 Orlando, FL 32801

Jack McRay, Esquire General Counsel

Department of Professional Regulation

1940 North Monroe Street Tallahassee, FL 32399-0792

Albert Peacock, Esquire Senior Attorney

Department of Professional Regulation - Legal Section

1940 North Monroe Street Tallahassee, Florida 32399-0792

Salvatore A. Carpino, Esquire One North Dale Mabry, Suite 1010 Tampa, Florida 33609

Docket for Case No: 90-006182

Orders for Case No: 90-006182