STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 90-7811

)

ROUHOLLAH FALLAH, )

)

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 March 28, 1991, in Ft. Lauderdale, Florida.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399

For Respondent: Max R. Price, Esquire

Joel M. Berger, D.D.S., J.D. 1550 Madruga Avenue

Suite 230

Coral Gables, Florida 33146 STATEMENT OF THE ISSUE

The issue presented is whether Respondent is guilty of the allegations contained in the Administrative Complaint filed against him, and, if so, what disciplinary action should be taken against him, if any.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent, alleging that Respondent had violated a statute regulating the practice of dentistry in the State of Florida, and Respondent timely requested a formal hearing on the allegations contained within that Administrative Complaint. This cause was thereafter transferred to the Division of Administrative Hearings for the conduct of that formal proceeding.

Petitioner presented the testimony of L. F.; Cheryl Toro; Peter Keller, D.D.S.; and Lucille Markowitz. Respondent testified on his own behalf and presented the testimony of Cheryl Toro and Robert J. Fish, D.D.S., J.D. Additionally, Petitioner's Exhibits numbered 1 and 2 and Respondent's Exhibit numbered 1 were admitted in evidence.

Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders. A ruling on each specific 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 as a dentist in the State of Florida, having been issued license number DN 0009938.

   
   

2. On August 14, 1989, patient L. F. was seen by the Respondent for dental treatment for the first time. She exercised an informed refusal of x-rays and requested only visual examination and cleaning.

   
   

3. Respondent examined L. F., diagnosed her oral condition, and cleaned her teeth with a cavitron ultra-sonic cleaner which emits a continuous flow of water while in use. Some of this water sprayed onto L. F.'s face and clothing during treatment.

   
   

4. Respondent then turned L. F. over to the care of his dental assistant Cheryl Toro, who polished L. F.'s teeth with a slow-speed hand-piece with a rubber cup and polishing material.

   
   

5. Respondent informed patient L. F. that she would need a second dental cleaning for optimal dental health and noted the procedures performed that day on L. F.'s chart in his own handwriting.

   
   

6. L. F. did not return for a second cleaning and did not keep the appointment which she had on October 9, 1989, to repair a broken filling.

   
   

7. On October 10, 1989, L. F. was seen by Respondent complaining of hyperplasia between her upper two middle teeth. She demanded that Respondent refer her to a periodontist and that Respondent pay for her periodontal treatment. He refused.

   
   

8. On December 14, 1989, L. F. contacted Respondent's office to find out the name of Respondent's dental assistant, advising that she was going to file a complaint against Respondent. She did file that complaint with Petitioner on December 27, 1989.

   
   

9. Respondent has been practicing dentistry for 20 years, the last 7 of which have been in Florida. There have been no prior complaints filed against him.

   
   

   CONCLUSIONS OF LAW

   
   

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

11. The Administrative Complaint filed in this cause contains one count and alleges that Respondent delegated to and allowed his dental assistant to polish L. F.'s teeth using a jet spray consisting of a baking soda and water solution, thereby violating Section 466.028(1)(aa), Florida Statutes, by delegating professional responsibilities to a person who is not qualified by training, experience, or licensure to perform them. Respondent is not charged with violating any other statutes or any of the rules of the Board of Dentistry. Petitioner has presented neither clear nor convincing evidence that Respondent has violated Section 466.028(1)(aa).

    
    

12. Petitioner's position in this cause is that Respondent's dental assistant cleaned L. F.'s teeth with a prophy jet, a task which cannot be delegated to a dental assistant. Petitioner's case rests on the credibility of patient L. F. She is not a credible witness. She has not been consistent in her accusations in this cause. Her complaint filed with the Department indicates that the only person she saw in Respondent's office on August 14, 1989, was the dental assistant. Not until the final hearing did L. F. admit that Respondent had conducted an examination of her. In her initial complaint she indicated that her gum irritation began the day following her treatment, that she contacted Respondent's office that day, and that she was seen by Respondent the next day. At final hearing she testified that the irritation to her gums began several days after her treatment on August 14. Respondent's records and the testimony presented on behalf of Respondent reveal that she did not contact Respondent's office for two months. In some of her statements L. F. indicates that her teeth were cleaned with water only, and in some of her statements she indicates her teeth were cleaned with water and baking soda. At the final hearing, she admits that no one ever told her that a jet spray had been used on her teeth; she had simply assumed that such was the case.

    
    

13. Respondent contends that he cannot be found guilty of violating the dental practice act even if the evidence presented at the final hearing is resolved unfavorably to him for the reasons that the statutes regulating the practice of dentistry do not prohibit the use of a prophy jet by a dental assistant, any rules of the Board of Dentistry prohibiting such use were passed subsequent to the time that Respondent treated patient L. F., that any such rules conflict with the Florida statutes regulating the practice of dentistry, that federal law has preempted state law regarding what devices and materials can be used in the practice of dentistry, and that state law can only define the procedures that dental assistants can perform and cannot define the materials to be utilized in performing those procedures. Since it has been found that Respondent did not delegate to his dental assistant the task of using a prophy jet on patient L. F., it is not necessary to determine whether the Board's rules conflict with the dental practice act or whether federal law controls the devices which can be used in the practice of dentistry. The parties appear to agree that a dental assistant may polish clinical crowns of the teeth for the purpose of removing stains without changing the existing contour of the tooth, using slow-speed hand-held instruments. See Section 466.024(1)(j), Florida Statutes. Such has been found to be the facts of this case, and Petitioner has failed to prove that Respondent has violated Section 466.028(1)(aa), Florida Statutes, as alleged in the Administrative Complaint filed against him.

    
    

14. In his Proposed Recommended Order, Respondent recommends that the charges against him be dismissed and that he receive reimbursement for attorney's fees and costs expended in defense of this action. Respondent does not cite to any legal authority for the proposition that he is entitled to be reimbursed for attorney's fees and costs in this Recommended Order.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered finding Respondent not guilty of the allegations contained in the Administrative Complaint and dismissing the Administrative Complaint filed against him in this cause.

RECOMMENDED this 25th day of July, 1991, at Tallahassee, Florida.

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 day of July, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-7811

1. Petitioner's proposed findings of fact numbered 1 and 2 have been adopted either verbatim or in substance in this Recommended Order.

   
   

2. Petitioner's proposed findings of fact numbered 3, 5, and 6 have been rejected as not being supported by the weight of the credible evidence in this cause.

   
   

3. Petitioner's proposed findings of fact numbered 4 and 7-9 have been rejected as being unnecessary for determination of the issues herein.

   
   

4. Respondent's proposed findings of fact numbered 1, 9, and 10 have been rejected as not constituting findings of fact but rather as constituting conclusions of law or argument of counsel.

   
   

5. Respondent's proposed findings of fact numbered 2-8 have been adopted either verbatim or in substance in this Recommended Order.

COPIES FURNISHED:

Albert Peacock, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Max R. Price, Esquire

Joel M. Berger, D.D.S., J.D. 1550 Madruga Avenue

Suite 230

Coral Gables, Florida 33146

Jack McRay, 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

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: 90-007811

Orders for Case No: 90-007811