STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6589

)

MAGNOLIA T. IOLE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case at Fort Lauderdale, Florida, on March 27, 1991, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings.

Appearances for the parties at the hearing were as follows:

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

For Respondent: Ms. Magnolia T. Iole, pro se

531 Northwest 39th Street Oakland Park, Florida 33309

STATEMENT OF THE ISSUES

This is a license discipline case in which the Petitioner seeks to take disciplinary action against the Respondent on the grounds that the Respondent has violated several statutory provisions by repairing dentures in a licensed dental lab without having obtained the required work order from a licensed dentist.

PRELIMINARY STATEMENT

At the formal hearing on March 27, 1991, the Petitioner presented the live testimony of two witnesses, Amy Mursten and Kevin Bork, and the deposition testimony of one expert witness, Stuart Moraitis, DDS. The Petitioner offered two Petitioner's exhibits, both of which were received in evidence, and the parties both offered one joint exhibit, which was received in evidence. The Respondent testified on her own behalf. She did not call any other witnesses, nor did she offer any exhibits other than the joint exhibit. Following the hearing, a transcript of the proceedings was filed with the Hearing Officer on April 5, 1991. The parties' respective proposed recommended orders were

originally due to be filed on April 26, 1991, but the deadline was extended to May 14, 1991. The Petitioner filed a timely proposed recommended order containing proposed findings of fact and ccnclusions of law. The substance of all of the proposed findings of fact submitted by the Petitioner has been accepted. The Respondent has not filed a proposed recommended order or any other post-hearing document.

FINDINGS OF FACT

Based on the stipulations of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, the following facts are found:

1. At all times relevant and material to this case, the Respondent, Magnolia Iole, held license number DL 0002153 issued by the Department of Professional Regulation, which licensed her to operate as a dental laboratory in the State of Florida.

   
   

2. At all times relevant and material to this case, the Respondent's dental laboratory was operated at 201 East Oakland Park Boulevard, Fort Lauderdale, Florida, under the business name of All Emergency Denture Service.

   
   

3. On April 11, 1990, an investigator with the Department of Professional Regulation took a broken denture to the Respondent's dental laboratory and asked to have it repaired. The broken denture was a woman's denture that had been obtained by one of the other Department investigators from a local dentist's office. The investigator who presented the broken denture for repair had not seen any dentist regarding the broken denture, nor did the investigator have any work order from a dentist for the repair.

   
   

4. On April 11, 1990, an employee of the Respondent's dental laboratory agreed to repair the broken denture that was brought in by the Department investigator. The employee said that the repair would cost $50.00, and that the denture would be ready later than same day.

   
   

5. Later that same day two Department investigators returned to the Respondent's dental laboratory, where they met the same employee who had agreed to repair the broken denture. The employee told the investigator who had brought the denture that it would be ready in a few minutes. A few minutes later the employee of Respondent's dental laboratory handed the repaired denture to the investigator who had brought it in earlier the same day. At that time the previously broken denture was completely repaired.

   
   

6. Although the Respondent, Magnolia Iole, was not observed on the dental laboratory premises during the events of April 11, 1990, described above, she was aware that such events were taking place, because during a telephone conversation on April 12, 1990, Magnolia Iole admitted to a Department investigator that she had been taking repair work without work orders because she needed the money.

   
   

7. A work order for denture repair is an order from a licensed dentist to a dental laboratory directing that certain repair services be performed. The work order is, essentially, a prescription for the performance of specific services. A dental laboratory is not permitted to perform a repair of an intra- oral dental appliance without a work order signed by a licensed dentist.

8. A dental laboratory that repairs a denture without a work order issued by a licensed dentist is engaged in the unauthorized practice of dentistry. Denture repair under such circumstances also constitutes the acceptance and performance of professional responsibilities which the dental laboratory licensee is not competent to perform. Denture repair without a work order issued by a licensed dentist, even when the repairs are excellently accomplished, can prevent the discovery of emerging dental problems and cause them to go untreated to the harm of the patient.

   
   

   CONCLUSIONS OF LAW

   
   

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

   
   

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

    
    

11. Section 466.031(1), Florida Statutes, defines a dental laboratory as any person, firm, or corporation who performs for a fee of any kind, gratuitously, or otherwise, directly or through an agent or employee, by any means or method, or who in any way supplies or manufactures artificial substitutes for the natural teeth, or who furnishes, supplies, constructs, or reproduces or repairs any prosthetic denture, bridge, or appliance to be worn in the human mouth or who in any way holds itself out as a dental laboratory.

    
    

12. Section 466.037, Florida Statutes, authorizes the Board of Dentistry to suspend or revoke the certificate of any dental laboratory registered under Section 466.032, Florida Statutes, for failing to comply with the provisions of Chapter 466, Florida Statutes, or with the provisions of rules adopted pursuant to Chapter 466, Florida Statutes.

    
    

13. Pursuant to Section 466.026(1)(a), Florida Statutes, the practice of dentistry or dental hygiene without an active license issued by the Department of Professional Regulation is a prohibited act and a felony of the third degree.

    
    

14. Section 466.028(1)(z), Florida Statutes, authorizes disciplinary action against a licensee upon a showing that the licensee is practicing or offering to practice beyond the scope permitted by law, or is accepting and performing professional responsibilities which the licensee knows or has reason to know he is not competent to perform.

    
    

15. Section 466.028(1)(bb), Florida Statutes, authorizes disciplinary action upon a showing of a violation or the repeated violation of Chapter 466, Florida Statutes, or any rule promulgated pursuant to Chapter 466, Florida Statutes.

    
    

16. Section 466.003(3)(b), Florida Statutes, defines the term dentistry as including repairing any prosthetic denture or other structure designed to be worn in the human mouth except on the written work order of a duly licensed dentist.

    
    

17. The Administrative Complaint in this case charges the Respondent with one count of performing denture repairs without a work order in violation of the statutory provisions discussed above. In a case of this nature, the Petitioner bears the burden of proving its charges by clear and convincing evidence. See Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The Petitioner has met its

    burden in this case and has established by clear and convincing evidence that the Respondent, a licensed dental laboratory, performed denture repair without a work order from a duly licensed dentist, which act constitutes the unlicensed practice of dentistry in violation of Sections 466.026(1)(a), 466.028(1)(z), and 466.028(1)(bb), Florida Statutes.

    
    

18. The violation committed by the Respondent is a serious violation. Not only does it expose patients to a potential risk of harm, but the Legislature has made that act a third degree felony. Accordingly, a serious penalty is appropriate.

RECOMMENDATION

For all of the foregoing reasons, it is recommended that the Board of Dentistry enter a final order in this case concluding that the Respondent has violated Sections 466.028(1)(z) and 466.028(1)(bb), Florida Statutes, and imposing an administrative penalty consisting of a six month suspension of the Respondent's license, to be followed by a one year period of probation during which the Respondent shall be required to advise the Board quarterly of all work performed by the Respondent's dental laboratory and shall comply with all statutory and rule provisions governing the activities of dental laboratories.

DONE AND ENTERED at Tallahassee, Leon Coun~y, Florida, this 21st day of May, 1991.

MICHAEL M. PARRISH

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 21st day of May, 1991.

COPIES FURNISHED:

Albert Peacock, Esquire

Department of Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, FL 32399-0792

Ms. Magnolia T. Iole

531 Northwest 39th Street Oakland Park, Florida 33309

Mr. William Buckhalt, Executive Director Florida Board of Dentistry

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0792

Jack McRay, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street

Suite 60

Tallahassee, FL 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-006589

Orders for Case No: 90-006589