STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )
)
Petitioner, )
)
vs. ) CASE NO. 92-2278
) CARL T. PANZARELLA, D.D.S., )
)
Respondent. )
)
RECOMMENDED ORDER
A hearing was held in this case in West Palm Beach on August 20, 1992 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
APPEARANCES
For the Petitioner: Albert Peacock, Esquire
Department of Professional Regulation
1940 North Monroe Street Tallahassee, Florida 32399-0792
For the Respondent: George P. Bailey, Esquire
The Racquet Club Plaza 5160 Sanderlin, Suite 5
Memphis, Tennessee 38117 STATEMENT OF THE ISSUES
The issue for consideration in this case is whether Respondent's license as a dentist in Florida should be disciplined because of the matters contained in the Administrative Complaint filed herein.
PRELIMINARY MATTERS
On January 15, 1991, Charles F. Tunnicliff, for George Stuart, Secretary of the Department of Professional Regulation, (Department), filed an Administrative Complaint in this case against the Respondent, Carl T. Panzarella, alleging that he had placed an advertisement in the West Palm Beach telephone directory advertising a dental referral service which, in actuality, advertised his and his associates' services as dentists and that advertisement was false, fraudulent, deceptive and misleading, in violation of Section 466.028(1), Florida Statutes, and Rule 21G-4.002, F.A.C. By letter dated March 23, 1992, some 14 months after the filing of the Administrative Complaint, Respondent, through counsel, requested a formal hearing and on April 9, 1992, the file was forwarded to the Division of Administrative Hearings for appointment of a
Hearing Officer. By Notice of Hearing dated April 24, 1992, entered after the parties' Joint Response to Initial Order, the undersigned set the case for hearing in West Palm Beach on July 9, 1992, but by Order Granting Continuance dated May 19, 1991, the undersigned granted the Respondent's Motion for Continuance and postponed the hearing until August 20, 1992 at which time it was held as scheduled.
At the hearing, Petitioner presented the testimony of Dr. Peter A. Pullon, a dental specialist practicing in North Palm Beach and at the time in issue the President of the Central County Dental Society, and introduced Petitioner's Exhibits 1 through 3. Respondent testified in his own behalf; introduced the testimony by deposition of Dr. Charles Hoffman; Dr. Jack Krauser; and Dr.
William Marras; and introduced Respondent's Exhibits A through I.
A transcript was provided. Subsequent to the hearing, only Petitioner's counsel submitted Proposed Findings of Fact which have been accepted and are incorporated in this Recommended Order.
FINDINGS OF FACT
At all times pertinent to the allegations contained in the Administrative Complaint, the Board of Dentistry, (Board) was the state agency responsible for the licensing of dentists and the regulation of the dental profession in Florida. Respondent, Carl T. Panzarella, was licensed as a dentist in Florida holding license No. DN 0008948, and was in practice in Palm Beach County.
Dr. Panzarella graduated from the University of Maryland Dental School in 1981 and practiced in Baltimore, Maryland for approximately 1 year after graduation. In the Spring of 1982 he moved to Florida and for several years, up through the Autumn of 1983, worked for other dentists. At that time, however, he decided to open his own office and, in the course of preparing to do this, met with a dental supplier who advised him as to the relative merits of the locations for dental offices he was considering in various areas within Palm Beach County. After consideration of several vacant offices, he ultimately opened his practice in an office building where he was the only dentist. Within a year, however, 5 or 6 other dentists had opened in competition, primarily in retail locations in the area, where they could advertise by large signs affixed to or adjacent to their buildings. Because Respondent's practice was located in a discrete office building, he was unable to do this and he found his practice was not growing as he had desired because of that inability to attract patients. As a result, he decided to advertise.
In the Spring of 1989, some 5 years after he opened his practice, and being dissatisfied with the speed with which it was growing, he attended a practice-building seminar at which one of the presentations recommended starting a dental referral service after a check was first made with the Department to see what type of activity could be approved. Considering that a good idea, Dr. Panzarella contacted 2 other dentists who shared office space and who agreed to go in with him if the proposal could be approved by both the Department and their attorney.
Dr. Panzarella then called the Department's office in Tallahassee at an information number listed in one of its brochures. He was advised by an unidentified individual that there were no laws in Florida which regulated dental referral services. His lawyer and the lawyer for the other 2 dentists with whom he was considering opening the service agreed.
Based on what he believed was a clear path toward the opening of such a service, Dr. Panzarella then went back to the practice-building firm and retained it to design the advertisement which he then placed in the October, 1989 edition of the telephone yellow pages in his area.
As soon as the advertisement came out, Dr. Panzarella began getting a number of phone calls from dentists practicing in the local area objecting to it. Some were reasonable and some were quite vituperative in nature. At his own request Dr. Panzarella subsequently went to a meeting of the North County Dental Society at which he described his service and answered all the questions put to him by the members about it.
Dr. Peter A. Pullon, President of the Central County Dental Society but not a member of the North County Society, was also present at that meeting and was most aggressive in his questioning of Respondent about the advertisement. After asking numerous pointed questions and apparently not getting the answers he wanted, Dr. Pullon left the meeting before it was terminated. In substance, however, Dr. Panzarella was told, at or after the meeting, that in the opinion of the members of the North County Society, he was in violation of the Board's advertising rules and he would either have to cancel the advertisement or let all dentists practicing in the area join his referral service. After Dr. Pullon left the meeting, the members agreed to query the Department for guidance on the issue and be bound by the Board's response, but before that could be done, Dr. Pullon, on behalf of the Central County Society, filed the Complaint which culminated in this hearing.
In the interim period between the North County Society's meeting and the filing of the Administrative Complaint, Dr. Panzarella and his associates attempted to get additional dentists to sign up with their service. No one wanted to do so, however, especially in light of the complaints about it that had been raised.
Once the Complaint was filed, Respondent called the Department and spoke with Mr. Audie Wilson, asking him about the propriety of a dental referral service, and again was informed there were no rules of the Board of Dentistry governing dental referral services.
The advertisement in issue here was placed by Dr. Panzarella and 2 other dentists who were practicing together. The telephone number listed in the advertisement rang in one of the two offices; in Respondent's office several days a week and in his associates' office several days a week. That procedure was followed for a period of time until they were able to determine the volume of the business, at which time the referrals were turned over to a commercial answering service to handle.
The referral service was not organized as a separate legal entity. The
3 dentists in question got together as a group to do it, and all calls which came in were referred either to Respondent's office or to the office of the other two dentists. All three were general dentists, and if anyone called with a specialized problem beyond their degree of competence, they did not refer that person to another dentist but, instead, directed that person to call another referral service. Respondent and his associates had written procedures under which the referrals to their practices were regulated, such as: how the calls were to be answered; who was to get the referral; and how questions asked were to be answered. Nonetheless, no one was hired by Respondent or his associates to operate the service. Any calls were answered by the regular receptionist in
the office which was receiving the calls on that day. They did, however, keep records as to from whom and when the calls were received and to which office of the participants they were referred. From this, it becomes clear that the service organized by Respondent and his associates was no more than an avenue to funnel patients to their respective dental practices and was not, in fact, a bona fide referral service such as is operated by the Palm Beach County Dental Association and by others who also advertise in the phone book.
The advertisement complained of here indicates that all members of the referral service had been checked on through the American Dental Association, insurance carriers, dental schools, and had a number of years in practice. In reality, these checks were done by the Respondent's wife who merely verified that the participants had the credentials claimed. The inspections of offices and equipment referred to were done by Respondent visiting his associates' office and their visiting his, and references were provided to each other.
Dr. Pullon attended the North County Society's meeting where Respondent explained his service and spoke with him and his associates. Dr. Pullon has been in practice in Florida for 11 years and is licensed in Florida and other states. He is a member of and accredited by numerous accrediting agencies and organizations. In his 11 years of practice he has become familiar with referral services and it is his understanding there are only two bona fide referral organization types. One charges the client for referral to any one of several dentists in various specialties who are signed up with it. The other is operated by a dental society which refers on the basis of membership in the society. Those societies are, however, open to membership by all licensed dentists in the community. One must belong to the society to be eligible for the society's referral service. The instant situation, in Pullon's opinion, was not a bona fide referral service but more an advertisement for the participants' practices. It has been so found.
Dr. Pullon filed his complaint with the Department in his capacity as President of the Central County Dental Society. On the complaint form he listed several witnesses to the operation of the service, none of whom are members of the Central County Society.
After attending the pertinent meeting of the North County Society, Dr. Pullon advised Dr. Krauser, the president of that society, that he intended to advise the Respondent of the problem and would ask for an opinion from the Department before asking Respondents to pull their advertisement if it was determined to be inappropriate. He noted that if they were so advised and thereafter refused to pull the advertisement, he would then file a complaint with the Department. However, after briefing the executive committee of the Central County Society after the North County Society meeting, the committee voted to report the matter to the Department immediately.
This is the second complaint Dr. Pullon has filed with the Department concerning another dentist. The former was not related to dental advertising or to this Respondent. It resulted in no action being taken.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.
In its Administrative Complaint, the Board of Dentistry seeks to discipline Respondent's dental license in Florida because, it is alleged, by placing an advertisement in the telephone book which, because it made only a partial disclosure of relevant facts and failed to reveal the name of the Florida licensed dentist who assumed total responsibility for it, was considered misleading and a violation of Sections 466.028(1), Florida Statutes.
Petitioner here has the burden to establish Respondent's guilt by clear and convincing evidence. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).
Under the provision of Section 466.028(1), Florida Statutes, the Board may discipline a license to practice dentistry in this state if it finds, as pertinent here, that the dentist:
Advertis[ed] goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content contrary to
s. 466.019 or rules of the department or the board.
Advertis[ed], practic[ed], or attempt[ed] to practice under a name other than one's own.
(bb) [violated] ... chapter 455, or any rule promulgated pursuant to chapter 455
....
Rule 21-G4.002(1), F.A.C. defines an "advertisement" as: any statement, oral or written, disseminated
to or before the public or any portion thereof
with the intent of furthering the purpose, either directly or indirectly, of selling professional services, or offering to perform professional services, or inducing members of the public to enter into any obligation relating to such professional services.
Rule 21G-4.002, F.A.C. requires all advertising to contain the name, address and telephone number of the Florida dentist who assumes total responsibility for the advertisement. It also provides that no dentist shall disseminate or cause to be disseminated any advertisement which is in any way fraudulent, false, deceptive or misleading in form or content of which is likely to mislead or deceive because its context or the context in which it is presented makes only a partial disclosure of relevant facts.
The evidence of record reveals that Respondent placed an advertisement, drafted for him by a commercial dental marketing firm, in the local telephone book. His motives for doing so can not be faulted. He had invested a considerable amount of his adult life in preparing to practice a profession which was not developing into the financial success he had envisioned. To his credit, he attempted to insure, prior to acting, that his proposed actions would be acceptable under the law and ethics of the profession and, upon his call to the Department's Tallahassee office was advised that dental referral services were not regulated. In truth, they are not, but advertising by dentists and dental referral services is regulated.
The advertisement in issue was placed by Respondent and two other dentists who advertised as the North County Dental Referral Service. In reality, as was found, there was no legitimate referral service. As opposed to those bona fide services operating in the area, which were open to all licensed dentists who were members of the dental association, or who were paid subscribers to the service, any calls to the service in issue here were referred only to the three dentists who were partners in the service which, as it was being operated, referred to no other dentists in the area. If the patient had a problem requiring a level of skill and experience greater than that possessed be any of the three professionals involved, that patient would be advised to seek another referral service. This was, in and of itself, misleading.
In addition, however, the advertisement was facially misleading. Imputing that great care was exercised to check out the members of the service, the advertisement puffed radically. All checking was among themselves as were the office inspections which were done, reputedly, by each member visiting the others' office. In short, the only service rendered free was the referral to the next of the partners on the list to receive a call.
Also to his credit, Respondent, when made aware of the interest in his service and the objections to it being voiced by some members of the dental community, attempted to present his position to the members of that community to seek their advice and assistance in changing his operation to one which would not be objectionable. He was not given that chance, however, because of the interest of Dr. Pullon, the president of the Central County Society, who seems to have made it his crusade to drive Respondent out of business. Respondent's post advertisement efforts do not, however, either excuse or legalize his improper advertisement. It is misleading and constitutes a violation of both the rule and the statute.
In its Proposed Recommended Order, the Department suggests the imposition of a reprimand, a requirement for continuing dental education, and the imposition of an administrative fine of $6,000.00. Respondent's infraction had nothing to do with his dental skills and an additional requirement for continuing dental education does not appear necessary. In light of his efforts to seek guidance regarding the proper way to establish a referral service and in the absence of any showing of injury to any patient as a result of his actions, the fine appears to be excessive. In addition, it would appear that regardless of how alleged in the Administrative Complaint, there is only one offense which at most would support a fine of $3,000.00.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:
RECOMMENDED that a Final Order be entered in this case imposing on the Respondent, Carl T. Panzarella, a reprimand and an administrative fine of
$1,000.00.
RECOMMENDED this 12th day of October, 1992, in Tallahassee, Florida.
ARNOLD H. POLLOCK, 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 12th day of October, 1992.
COPIES FURNISHED:
Albert Peacock, Esquire Department of Professional
Regulation
1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
George P. Bailey, Esquire The Raquet Club Plaza 5160 Sanderlin, Suite 5
Memphis, Tennessee 38117
Jack McRay, General Counsel Department of Professional
Regulation
1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
William Buckhalt, Executive Director Department of Professional
Regulation/Board of Dentistry 1940 North Monroe Street Northwood Centre, Suite 60 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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.
=================================================================
AGENCY FINAL ORDER
=================================================================
STATE OF FLORIDA
DEPARTMENT OF PROFESSIONAL REGULATION BOARD OF DENTISTRY
DEPARTMENT OF PROFESSIONAL REGULATION,
Petitioner,
vs. CASE NO.: 90-00286
LICENSE NO.: DN0008948 CARL T. PANZARELLA, D.D.S., DOAH CASE NO.: 92-2278
Respondent.
/
FINAL ORDER
THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on November 20, 1992, in Orlando, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is attached as Exhibit A) in the case of Department of Professional Regulation v. Carl T. Panzarella, D.D.S., Case No. 92-2278. At the hearing, Petitioner was represented by Nancy M. Snurkowski, Chief Attorney. Respondent appeared with George Bailey, 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. 1/
RULINGS ON EXCEPTIONS
Respondent filed exceptions to the Hearing Officer's Recommended Order.
The Board considered each exception and made the following rulings:
Respondent's first exception challenges the language in paragraph 11 of the Recommended Findings of Fact that Respondent never hired anyone to operate the referral service and that all calls were answered by each officer's regular receptionist. After reviewing the entire record the Board found no competent substantial evidence to support such absolute findings. Therefore, the Board determined that, in paragraph 11, the sentence "Nevertheless, no one was hired by Respondent or his associates to operate the service." and the words "by the regular receptionist" in the following sentence should be deleted.
Respondent's second exception challenges the Hearing Officer's comparison in paragraph 11, of Respondent's activities with the referral service operated by the Palm Beach County Dental Association. After reviewing the entire record, the Board determined that the Hearing Officer's findings regarding the Palm Beach County Dental Association and others who advertise in the phone book is dicta that is unnecessary to this case and not substantially supported in the record. Therefore, the Board determined that the language "...
such as is operated by the Palm Beach County Dental Association and by others who also advertise in the phone book" in paragraph 11, should be deleted.
Respondent's third exception challenges the Hearing Officer's characterization of the verification of dental credentials addressed in paragraph 12 of the Recommended Findings of Fact. After a review of the entire record the Board determined that nothing in the record supports an inference that Respondent's method of verifying credentials was somehow below a specific standard set forth in law or rule. Therefore, the Board determine that the word "merely" should be deleted from paragraph 12.
Respondent's fourth exception challenged the Hearing Officer's finding in paragraph 15 of the Recommended Findings of Fact that Dr. Pullen advised Dr. Krauser that he would speak with Respondent and seek an opinion from Petitioner. After reviewing the record the Board determined that in fact it was Dr. Krauser who advised Dr. Pullen. Therefore, the first few lines of paragraph 15 are amended to reflect that Dr. Krauser advised Dr. Pullen.
Respondent's fifth exception challenges the last sentence of paragraph
23 of the Recommended Conclusions of Law which concludes that although dental referral services are not regulated advertising by dental referral services is regulated. The Board considered this issue and concluded that it concurs with the Hearing Officer's determination. Advertising by dental referral services the benefit of which enures to its member dentists is regulated pursuant to Chapter 466, Florida Statutes. Therefore, Respondent's fifth exception is rejected.
FINDINGS OF FACT
The Hearing Officer's Findings of Fact as modified above are approved and adopted and are incorporated herein by reference
There is competent, substantial evidence to support the Board's findings.
CONCLUSIONS OF LAW
The Board has jurisdiction of the parties and subject matter of this case pursuant to Section 120.57 and Chapter 466, Florida Statutes.
The Hearing Officer's Conclusions of Law are approved and adopted and are incorporated herein by reference.
There is competent, substantial evidence to support the Board's conclusions.
The Board approves and adopts the Hearing Officer's recommendation that Respondent's license to practice dentistry in Florida be reprimanded and that Respondent be fined $17,000.00.
WHEREFORE, it is ORDERED AND ADJUDGED that the Respondent violated 466.028(1)(d)(e)and (bb), F.S., and Respondent's license to practice dentistry in Florida shall hereby be REPRIMANDED and Respondent is ordered to pay an administrative fine of $1,000.00 to the Executive Director of the Board of Dentistry within 30 days of the effective date of this Final Order.
This Final Order becomes effective upon its filing with the Clerk of the Department of Professional Regulation.
The parties are hereby notified that they may appeal this Final 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 (30) days of the date this Final Order is filed.
DONE AND ORDERED this 31st of December, 1992.
BOARD OF DENTISTRY
CHARLES L. ROSS, JR., D.D.S. CHAIRMAN
ENDNOTE
1/ Respondent filed a request for Voluntary Recusal of Dr. Chichetti and Dr. Robinson. The request was based upon Respondent's belief that these Board members in reviewing a previously offered stipulation in this case, formed such severe opinions as to no longer be capable of an unbiased review of the record in this matter. Board counsel cited the language in the stipulation waiving any right to assert bias based on a Board member's review of the stipulation and supporting material. Both Board members stated their belief that they could review the current record with open minds and each elected not to recuse himself in this case.
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 31st day of December, 1992, to Carl T. Panzarella, D.D.S., c/o George Bailey, Esquire, Racquet Club Plaza, 5160 Sanderlin, Suite 5, Memphis, Tennessee 38117, and by hand delivery to Nancy M. Snurkowski, Chief Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0750.
William H. Buckhalt, C.P.M. Executive Director
Board of Dentistry
| Issue Date | Proceedings |
|---|---|
| Aug. 12, 1993 | Final Order filed. |
| Jan. 04, 1993 | Final Order filed. |
| Nov. 06, 1992 | Exceptions to Recommended Order filed. |
| Oct. 12, 1992 | Recommended Order sent out. CASE CLOSED. Hearing held 8/20/92. |
| Sep. 21, 1992 | Petitioner`s Proposed Recommended Order filed. |
| Sep. 08, 1992 | Transcript of Proceedings filed. |
| Jul. 23, 1992 | Respondent`s Notice of Filing w/(8) Subpoena Ad Testificandum filed. |
| Jun. 29, 1992 | Petitioner`s Notice of Filing filed. |
| May 19, 1992 | Order Granting Continuance sent out. (hearing rescheduled for 8/20/92; 9:00am; WPB) |
| May 11, 1992 | (Respondent) Motion for Continuance filed. |
| Apr. 24, 1992 | Notice of Hearing sent out. (hearing set for 7-9-92; 9:00am; West Palm Beach) |
| Apr. 23, 1992 | Joint Response to Initial Order filed. |
| Apr. 16, 1992 | Initial Order issued. |
| Apr. 09, 1992 | Agency referral letter; Letter to N. Snurkowski (DPR) from George P. Baily stating his legal representation of Carl T. Panzarella and request for Administrative hearing; Amended Administrative Complaint; Notice of Withdrawal of Attorney of Record filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Dec. 31, 1992 | Agency Final Order | |
| Oct. 12, 1992 | Recommended Order | Dentist's set-up of bogus referral service is misleading advertising supporting discipline. |
