STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE ) ADMINISTRATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 95-1795

)

ROBERT IVER, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Claude B. Arrington, held a formal hearing in the above-styled case on January 10 and 11, 1996, in Miami, Florida.

APPEARANCES

For Petitioner: Wendy Smith Hansen, Esquire

Nancy Snurkowski, Esquire

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0792

For Respondent: Harold M. Braxton, Esquire

Suite 400, Datran Center

9100 South Dadeland Boulevard Miami, Florida 33156-7815

STATEMENT OF THE ISSUES

Whether Respondent, a dentist, committed the offenses alleged in the second amended administrative complaint and the penalties, if any, that should be imposed.

PRELIMINARY STATEMENT

The administrative complaint that initiated this proceeding alleged certain facts pertaining to Respondent's use of narcotics and charged, based on those facts, that Respondent was unable to practice dentistry with reasonable skill and safety to his patients in violation of Section 466.028(1)(s), Florida Statutes. The hearing scheduled for dates in October 1995 was continued at the joint request of the parties to enable them to determine whether the Board of Dentistry would approve a proposed settlement agreement. Without objection, the Petitioner was also permitted to file an amended administrative complaint consisting of one count asserting additional factual allegations to support its charge that Respondent was unable to practice dentistry with reasonable skill and safety to his patients in violation of Section 466.028(1)(s), Florida Statutes. The Board of Dentistry rejected the proposed settlement agreement at

its November 1995 meeting. Again without objection, in December 1995, Petitioner was permitted to file its second amended administrative complaint to add a second count alleging that Respondent had been found guilty of a crime relating to the practice of dentistry in violation of Section 466.028(1)(c), Florida Statutes. The December amendment did not amend count one.

Prior to the final hearing, the Petitioner filed two motions in limine attempting to preclude Respondent and his wife, Lisa Iver, from testifying. Since the Respondent did not testify in this proceeding, the motion pertaining to his ability to testify at the formal hearing is moot. The motion pertaining to Lisa Iver recited the Petitioner's effort to subpoena her for a deposition during the discovery phase of this proceeding and the reasons it believes it was unable to do so. While Petitioner apparently believes that Ms. Iver deliberately evaded its process server, she was not subpoenaed for deposition.

Consequently, it was concluded by the undersigned that her testimony should not be barred, but that Petitioner should have the opportunity to depose her before she would be permitted to testify. This deposition occurred and Ms. Iver testified briefly without further objection. In its post-hearing submittal, Petitioner attempts to renew its objection to Ms. Iver's testimony and attempts to move to strike her testimony. No explanation is attempted as to why this objection and motion were not made at the formal hearing following the deposition of Ms. Iver and before her testimony. This would have been at a time Respondent could have had the opportunity to argue against the objection and against the motion and the undersigned could have fashioned alternate relief, if deemed appropriate. The objection and the motion to strike are not timely and are without merit. The objection and the motion are denied.

Prior to the start of the formal hearing, Respondent filed a motion to dismiss count one of the administrative complaint based on the alleged provisions of Section 466.028(4)(a), Florida Statutes. The undersigned is unable to locate this statutory reference. Because the second administrative complaint added count two, but it did not amend count one, it is concluded that this motion is not timely in that it was not filed within thirty days of the filing of the final amendment to count one. See, Rule 60Q-2.004(5), Florida Administrative Code. Further, the facts alleged in the motion to dismiss are, in part, contrary to the findings of fact contained herein and do not establish Respondent's position that count one should be dismissed. For the foregoing reasons, Respondent's Motion to Dismiss Count One is denied.

At the formal hearing, Petitioner presented the testimony of Sergio Sagastume (the medical records custodian for Mt. Sinai Hospital), Lynn Crummey (the records custodian for the Physicians Recovery Network), Steven Jones (sergeant with the City of Miami Beach Police Department), Stanton Berlinsky (public safety communications administrator with the City of Miami Beach Police Department), Maritza Fonseca (crime scene technician with the City of Miami Beach Police Department), Edward Gonzalez (firefighter with the City of Miami Beach Fire and Rescue), Marc Hochstadt (police officer with the City of Miami Beach Police Department), and James Harley (police officer with the City of Miami Beach Police Department). Petitioner also presented the testimony of Dr. John Eustace, a physician who is the medical director of the addiction treatment program at Mount Sinai Medical Center, of Dr. Roger Goetz, a physician who is the director of the PRN, and of Dr. Hans Ueli Steiner, a physician practicing in the specialities of psychiatry and psychoanalysis. Drs. Eustace, Goetz and Steiner were accepted as expert witnesses. Petitioner had marked for identification a total of 14 exhibits. Petitioner moved eleven of these exhibits into evidence, nine of which were accepted into evidence. At the request of Petitioner, official recognition was taken of Chapters 455, 466, and

120, Florida Statutes, Chapters 28 and 60Q-2, Florida Administrative Code, the "Order Compelling Mental and Physical Examination" dated August 15, 1994, the "Emergency Suspension Order" (ESO) dated September 15, 1995, the criminal information containing three counts filed against Respondent on September 11, 1995, and the judgment, sentence and order entered in the criminal proceeding dated October 17, 1995.

Respondent presented the testimony of Lisa Iver and offered two exhibits, both of which were admitted into evidence. In addition, Respondent was permitted to submit as a late-filed exhibit a copy of an order entered in the criminal proceeding on October 20, 1995, nunc pro tunc, October 17, 1995. This subsequent order has been marked as Respondent's exhibit three and has been accepted into evidence.

Many of the findings of fact contained in this Recommended Order are based on factual stipulations of the parties.

A transcript of the proceedings has been filed. At the request of the parties, the time for filing post-hearing submissions was expedited. The preparation of this Recommended Order has also been expedited at the request of the parties and because the Respondent has been prohibited from practicing since the entry of the ESO on September 15, 1995. Rulings on the parties' proposed findings of fact may be found in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner, Agency for Health Care Administration (AHCA), is the state agency charged with regulating the practice of dentistry pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 466, Florida Statutes. References to Petitioner in this Recommended Order include the Department of Business and Professional Regulation, which regulated the practice of dentistry prior to the creation of AHCA.

   
   

2. Respondent is, and has been at all times material hereto, a licensed dentist in the State of Florida, having been issued license number DN 0005929. Respondent's main area of practice is general dentistry.

   
   

3. Respondent's last known address is his residence at 1205 Lincoln Road, Miami Beach, Florida 33139. At all times pertinent to this proceeding, Respondent lived at that address with his wife, Lisa Iver.

   
   

4. Cocaine is a highly addictive central nervous system stimulant. Benzodiazepines, such as Valium and oxazepam, are central nervous system depressants that have the opposite effect of cocaine on the central nervous system. The usage of these two types of drugs by a cocaine user with medical knowledge may act to balance the visible and medically detectable effects of cocaine on the central nervous system.

   
   

5. Since at least 1988, Respondent has been a cocaine addict. Various toxicology tests have reflected that he has taken a form of benzodiazepine following cocaine use.

   
   

6. There are several factors that have worked to make Respondent's recovery more difficult. He has experienced severe marital problems, his mother was an alcoholic, and wife is also chemically dependent.

7. The addiction recovery of one spouse directly affects the addiction recovery of the other. If one spouse falls off the wagon, the other spouse is very likely to fall out of recovery.

   
   

8. The Physician's Recovery Network (PRN) is an independent program for monitoring certain impaired professionals, including dentists. PRN requires individuals to be evaluated and enter drug treatment, if appropriate, pursuant to a written agreement with the impaired practitioner. The PRN conducts random drug screens and provides for the exchange of information between the treatment programs, PRN, and the Petitioner for the protection of the public.

   
   

9. The advocacy of PRN is designed to protect practitioners who have been offered the opportunity to receive care instead of discipline. The PRN program is confidential and not subject to public scrutiny.

   
   

   THE FIRST PRN CONTRACT - 1988

   
   

10. On or about March 12, 1988, Respondent was arrested as a result of a shooting incident involving his wife. Respondent was transported to South Miami Hospital due to his alleged cocaine abuse.

    
    

11. Respondent was admitted to South Miami Hospital for substance abuse evaluation and treatment.

    
    

12. During his evaluation and treatment at South Miami-Hospital, Respondent claimed a prior sedative overdose which required hospitalization at Mount Sinai Medical Center, allegedly due to his wife spiking his drink.

    
    

13. During his evaluation and treatment, Respondent admitted to prior sporadic use of intra-nasal cocaine. Respondent also admitted to previously free basingcocaine, experiencing paranoia, and having other reactions from cocaine.

    
    

14. Respondent refused a nasal examination.

    
    

15. Detoxification was required and Respondent was diagnosed as possibly being addicted to cocaine.

    
    

16. Respondent left South Miami Hospital against medical advice on March 15, 1988, two days after being admitted. Respondent was readmitted to South Miami Hospital on April 11, 1988.

    
    

17. As a result of Dr. Iver's arrest in March 1988, and the recommendations of the doctors who evaluated him, the PRN was contacted.

    
    

18. Respondent signed a Chemical DependencyContract with the PRN on or about May 23, 1988.

    
    

19. On or about June 26, 1990, Respondent signed a Chemical Dependency Contract extending his monitoring for an additional three (3) years.

    
    

20. On or about June 26, 1993, Respondent completed his PRN contract.

    
    

    AFTER THE FIRST PRN CONTRACT - SEPTEMBER 1993

    
    

21. On September 21, 1993, the PRN received multiple telephone calls from Ms. Iver stating Respondent was using "free base" cocaine. She later retracted

    this story and stated that she had spiked his food. On that date, Mrs. Iver filed a domestic violence complaint (#93-33887) against Respondent with the Miami Beach Police Department. An assault rifle, and other gun-related items were taken into custody by the police. The offense report states that the attack by Respondent on his wife was a result of an argument regarding his "narcotic use."

    
    

22. The PRN ordered Respondent to submit to a professional evaluation. On September 24, 1993, Respondent was admitted to Mount Sinai Hospital for an inpatient evaluation. Dr. John Eustace was the evaluating physician. Dr. Eustace is board certified by the American Society of Addiction Medicine and is the medical director of the addiction treatment program at Mount Sinai.

    
    

23. During that evaluation, Respondent tested positive for oxazepam and cocaine.

    
    

24. As a result of the inpatient evaluation, Dr. Eustace formed the opinion that Respondent was in relapse and recommended that Respondent sign a chemical dependency contract with PRN and that he refrain from practicing dentistry until he had entered a recovery life-style. Dr. Eustace used the term "relapse" without regard to whether the ingestion was voluntary or involuntary.

    
    

25. Dr. Eustace was of the opinion that Respondent did not have an adequate recovery program in September 1993 because he was no longer involved in the PRN monitoring program, he was not attending or actively involved in the twelve step program for recovering addicts. During the evaluation, Respondent admitted responsibility for having an inadequate recovery program.

    
    

26. Dr. Eustace's diagnosis on Respondent's discharge were as follows:

    
    

    1. Chemical dependency, inactive by history.

    2. Chemical dependency relapse behaviors, active.

    3. Obsessive compulsive traits.

    4. Adult child of alcoholic mother.

    5. Co-dependent behavior.

       
       

27. Dr. Eustace's specific recommendations for Respondent pertinent to this proceeding, made at a time Respondent and his wife were contemplating divorce and before she entered a treatment program, were as follows:

    
    

    1. Reinstitute a program of total abstinence.

    2. Enter into a second PRN contract with the length of time to be determined by the PRN staff.

    3. Recruit a home group of Alcoholics Anonymous (AA) or Narcotics Anonymous (NA).

    4. Recruit a sponsor for the purpose of working the twelve steps.

    5. Attend ninety meetings of AA or NA within the next ninety days.

    6. Detach from his office practice until his drug screen had cleared and he had entered a life- style of recovery.

    7. Detach emotionally and physically form his wife.

    8. Turn all further matters concerning his divorce over to his attorney.

    9. Obtain a personal physician to avoid self-

       medication.

    10. Begin a professional relationship with a therapist knowledgeable about the adult child of an alcoholic syndrome, knowledgeable about the disease of addiction, and knowledgeable about co-dependency treatment.

        
        

28. PRN, based largely on Dr. Eustace's evaluation, recommended that Respondent enter into a new contract for monitoring and to continue treatment. Respondent refused to sign a new contract.

    
    

29. On or about December 16, 1993, PRN forwarded a letter of complaint to Petitioner. Dr. Roger Goetz, Director of PRN, noted that Respondent had a urinalysis which contained metabolites of cocaine and benzodiazepines and that Respondent refused to voluntarily enter PRN. No further action was taken against the Respondent at that time.

    
    

    JULY AND AUGUST 1994

    
    

30. On or about July 7, 1994, PRN informed Petitioner it had information from a confidential informant that Respondent was free basing cocaine. The allegations stated that Respondent appeared to be "coked" up and failed to show up at his dental office.

    
    

31. Dr. Goetz, Director of PRN, believed that intervention might be possible through a Miami affiliate.

    
    

32. On July 7, 1994, Dr. Jules Trop, a doctor with the Miami affiliate of PRN, evaluated Respondent. Respondent denied any drug use but refused to submit a urine sample for drug testing. Dr. Trop observed Respondent's appearance to be disheveled and his speech pattern strained. Dr. Trop expressed the opinion that Respondent was in need of professional help.

    
    

33. On or about July 26, 1994, the Agency was informed by PRN that Respondent refused intervention by PRN.

    
    

34. As a result of the foregoing, an Order Compelling Physical and Mental Examination was ordered by the Agency on August 15, 1994.

    
    

35. The evaluation pursuant to the Order Compelling Physical and Mental Examination was conducted a week after the Order was served upon Respondent. On August 23, 1994, Dr. Hans Ueli Steiner, a psychiatrist, evaluated Respondent pursuant to the Order Compelling Physical and Mental Examination. Dr. Steiner formed the opinion that Respondent presented characteristics of an addict in denial and was a potential risk to his patients. Dr. Steiner believed that objective monitoring was the only reliable way to ascertain the continued sobriety of Respondent.

    
    

36. Respondent admitted to Dr. Steiner that he had used drugs in the past. He further admitted that he was an addict.

    
    

    JULY AND AUGUST 1995

    
    

37. On July 28, 1995, police officers from the City of Miami Beach Police Department were called to the Iver residence in response to a 911 call. Upon arrival the officers observed drug paraphernalia commonly associated with free basing cocaine in the bedroom shared by Dr. and Mrs. Iver. Respondent had been

    free basing cocaine prior to the arrival of the police. The officers confiscated the paraphernalia, but took no further action against Respondent that evening.

    
    

38. On Wednesday, August 2, 1995, at approximately 8:38 p.m., police officers with the City of Miami Beach Police Department were dispatched to the Iver residence because Mrs. Lisa Iver called 911 stating that her husband Robert Iver had overdosed on cocaine.

    
    

39. The 911 tape reveals a voice in the background making a loud verbal noise.

    
    

40. According to the incident report prepared by the Miami Beach Police Department, Ms. Iver told the police officers who came to the Iver residence in response to the 911 call that the Respondent had gone crazy and was out of control due to free-basing cocaine.

    
    

41. Accompanied by professionals from the City of Miami Beach Fire and Rescue Unit, the police officers entered the Iver residence and found Respondent naked and covered in blood.

    
    

42. Additionally, the police discovered broken glass along with a cocaine pipe, propane torch, a glass beaker, and a can that had been altered to accommodate the smoking of crack cocaine. The cocaine pipe, propane torch, and glass beaker are items or devices commonly associated with free basing cocaine and are similar to the items removed from the house on July 28, 1995.

    
    

43. Respondent indicated to the police officers at the scene that he had been free-basing cocaine and stated that he had taken a "hit" off the pipe and then thought he was being attacked by three men.

    
    

44. According to the Miami Beach Police Department incident report, Mrs. Iver stated that Respondent had been smoking a lot of cocaine and then requested that she sodomize him with a sexual apparatus. Upon refusing, he began punching her in the chest and kicking her. He also pulled her across the floor by her hair. Ms. Iver had physical injuries that were consistent with the reported abuse by Respondent.

    
    

45. Respondent was arrested for battery as a result of this incident.

    
    

46. During this police investigation, Mrs. Iver was wearing a bandage on her chin and had two (2) broken teeth. Mrs. Iver stated that the observed injuries were a result of her husband, Respondent, punching her two days earlier, on Monday, July 31, 1995 after an argument regarding Respondent's drug abuse.

    
    

47. A police photographer was called to the scene by Officer Hochstadt. Color photographs of Dr. and Mrs. Iver and of the scene were taken by the crime scene technician. The photographer's report listed the investigation as a possible attempted suicide.

    
    

48. The cocaine pipe, propane torch, and glass beaker were taken into custody by the police.

    
    

49. Respondent was transported by the Fire and Rescue Unit to Jackson Memorial Hospital emergency room for treatment.

50. The States Attorney's Office charged Respondent with two counts of misdemeanor battery and one count of misdemeanor possession of drug paraphernalia based on the events of August 2, 1995.

    
    

51. On or about October 17, 1995, Robert Iver was found guilty of one count of use, possession, manufacture, delivery, or advertisement of drug paraphernalia, and one count battery, after pleading nolo contendre to each charge. Adjudication was withheld and Iver was sentenced to twelve months probation for each charge to run concurrently. Among the terms of his probation was the requirement that he participate in a PRN approved recovery program.

    
    

52. The aforementioned crimes relate to the practice of dentistry or dental hygiene. 1/

    
    

    THE EMERGENCY SUSPENSION ORDER - SEPTEMBER 15, 1995

    
    

53. On September 13, 1995, after reviewing the substance abuse history of Respondent and the foregoing police incident reports relating to drug usage in the middle of the workweek, Dr. Roger Goetz of PRN opined that Respondent is impaired and that his inability to practice dentistry poses an immediate and serious danger to the public health, safety, and welfare. This opinion resulted in an Emergency Suspension Order being filed on September 15, 1995. Respondent has been prohibited from practicing dentistry since that date based on that order.

    
    

    MISCELLANEOUS FACTS BASED, IN PART, ON THE STIPULATION

    
    

54. Respondent, by and through counsel, on approximately February 15, 1994, proffered to the Agency that Respondent had submitted himself to numerous drug screens and all were negative for any controlled or illegal substances. No actual laboratory reports were produced.

    
    

55. From approximately January 1994 to June 1994, the Petitioner actively cooperated with Respondent's counsel to negotiate a satisfactory resolution to the complaint.

    
    

56. Respondent has, at times, denied his addiction to cocaine after numerous past positive tests, treatment and counseling.

    
    

57. Respondent's enthusiasm about prior recovery attempts tailed off as he became more involved with his dental practice.

    
    

58. Lisa Iver testified that she and her husband, Robert Iver, Respondent, were getting along better since entering the Mount Sinai program in September 1995, because they were currently both clean and off drugs.

    
    

    THE SECOND PRN CONTRACT - OCTOBER 20, 1995

    
    

59. On September 22, 1995, Respondent went to Dr. Eustace for the purpose of establishing a program of personal recovery, marriage and family recovery, and reentry into the PRN. Mrs. Iver also entered a recovery program at Mt. Sinai.

    
    

60. On October 20, 1995, Respondent signed a new contract with the PRN. While Respondent asserts that he "voluntarily" entered into this contract, that characterization is inaccurate since he entered this contract after the entry of

    the ESO. The order of probation entered in the criminal proceeding, also signed October 20, 1995, required his participation in such a program.

    
    

61. By signing this PRN contract, Respondent agreed that he would have random unannounced urine or blood screens, that he would abstain from using all mood altering substances, medications, alcohol and others, that he would be monitored by a physician, that he would notify the PRN if he changed his address or employment; that he was to attend a self help group such as AA or NA seven times per week; that he would receive continuing care in group therapy one time per week; that he would attend a twelve step program for recovering professionals; that he would notify the PRN in the event of a relapse; that he would agree to withdraw from practice at the request of the PRN if any problem developed; and that his wife would also enter a recovery program.

    
    

62. In his present capacity, Dr. Eustace provides evaluations for the PRN. In this respect he sees his role as that of a servant for the PRN. He renders reports and recommendations to the PRN. The PRN relies with confidence upon Dr. Eustace's opinions and reports.

    
    

63. Since October 20, 1995, the date Respondent signed a PRN contract, Dr. Eustace has been his monitoring physician within the program. While in the program, Respondent has undergone psychological testing, personal interviews and has otherwise complied with the terms of his PRN contract. Dr. Eustace found no evidence of any chemical relapse, Respondent's behavior is one of compliance with the PRN and he is participating in a monitored group and in a peer professional group. Both Dr. and Mrs. Iver are progressing satisfactorily.

    
    

64. It is important to the recovery life-style of Respondent that his wife continue progressing satisfactorily in her recovery program. One important difference in Respondent's life-style prior to his signing the October 20, 1995, PRN contract and subsequent thereto is that his wife is seeking professional help for her addiction.

    
    

65. On October 31, 1995, Dr. Eustace wrote to Dr. Goetz advising him that it was his opinion that Respondent is adhering to a recovery life-style, is in full compliance with PRN directives, is not a danger to the public or himself and that he can safely practice dentistry.

    
    

66. Dr. Goetz acquiesced in Dr. Eustace's opinion in testimony before the Board of Dentistry in November 1995.

    
    

67. Both Dr. Eustace and Dr. Goetz testified that in their opinions, Respondent can practice dentistry with safety and without danger to the public health, safety or welfare as long as he is being monitored by the PRN. Dr. Goetz further testified that there has been a "decent" period of time over which to monitor Respondent since his emergency suspension in September.

    
    

68. Dr. Hans Ueli Steiner, who had evaluated Respondent in August 1994, expressed the opinion that Respondent was beyond hope. Dr. Steiner based this opinion on his one and one half hour conversation with Respondent in August 1994, on the testimony presented at the formal hearing, and on his observations of Respondent at a deposition and on the first day of the formal hearing. He did not review any medical records as he thought that they were not important. It was Dr. Steiner's opinion that Respondent was not safe to practice dentistry based primarily on the fact that Respondent had relapsed in 1993 and 1994 and therefore the PRN program was unsatisfactory for him. Dr. Steiner also questions Respondent's honesty and his commitment to recovery.

69. Dr. Steiner disagrees with Dr. Goetz and Dr. Eustace and states that they are emotionally involved with his recovery. This emotional involvement, in Dr. Steiner's opinion, prevents them from giving an objective medical opinion. However, Dr. Eustace clearly stated that all of his opinions related to Respondent were based upon the professional relationship and were medical opinions. Dr. Goetz stated that he had never met Respondent until the Board's November 1995 meeting and has relied, in most part, on the opinions expressed by Dr. Eustace.

    
    

70. There was testimony as to the dangers of a recovering addict. An addict may be sober one day and under the influence of an addictive substance the next. It is possible that even after signing a PRN contract and being monitored, the Respondent may relapse. It is also possible that if the Respondent falls off the wagon or falls out of recovery, he could harm a patient before PRN is notified and appropriate action is taken. It is also true that no one, including PRN, Dr. Goetz, and Dr. Eustace, can guarantee that the Respondent will not use cocaine, and no one can guarantee that Respondent is able to practice dentistry with reasonable skill and safety.

    
    

71. The greater weight of the evidence established, however, that the PRN was developed to assist recovering addicts, that the program is as good as any of its type, and that the program works as long as the impaired practitioner is adhering to the terms of the contract.

    
    

72. The testimony of Dr. Eustace and of Dr. Goetz on January 10, 1996, that Respondent is presently safe to practice dentistry and that he poses no danger to the public's health, safety or welfare is more persuasive than that of Dr. Steiner that Respondent is beyond help. This conclusion is reached, in part, because of Dr. Eustace's expertise, his extensive work with the Respondent, and because Respondent was able to practice without incident while being monitored by the PRN. It is also concluded that Dr. Eustace is in a better position than Dr. Steiner to evaluate Respondent's honesty and his commitment to recovery. The PRN program worked for Respondent in the past as he was able to safely practice between 1988 and 1993 when he was being monitored pursuant to a PRN contract.

    
    

    CONCLUSIONS OF LAW

    
    

73. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

74. Section 466.028, Florida Statutes, provides, in pertinent part, as follows:

    
    

    1. The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

       * * *

       (c) Being convicted or found guilty of or entering a plea of nolo contendre to, regard- less of adjudication, a crime in any jurisdic- tion which relates to the practice of dentistry or dental hygiene. A plea of nolo contendre shall create a rebuttable presumption of guilt to the underlying charge.

       * * *

       (s) Being unable to practice his profession with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition. . . .

       * * *

    2. When the board finds any person guilty of any of the grounds set forth in subsection

    (1) it may enter an order imposing one or more of the following penalties:

    * * *

    1. Revocation or suspension of a license.

    2. Imposition of an administrative fine

    not to exceed $3,000 for each count or separate offense.

    * * *

    (e) Placement of the licensee on probation for a period of time and subject to such condi- tions as the board may specify, including requiring the licensee to attend continuing education courses or demonstrate his competency through a written or practical examination or

    to work under the supervision of another licensee.

    
    

75. Petitioner has the burden of proving by clear and convincing evidence the allegations against Respondent. See Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987); Evans Packing Co. v. Department of Agriculture and Consumer Services, 550 So.2d 112 (Fla. 1st DCA 1989). Evans Packing, supra, 550 So. 2d 112, 116, fn. 5, provides the following pertinent to the clear and convincing evidence standard:

    
    

    That standard has been described as follows:

    [C]lear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the evidence must be precise and explicit and the witnesses must

    be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact the firm belief of (sic) conviction, without hesitancy, as to the truth of the allegations sought to be established.

    Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983).

    
    

76. Petitioner has established by clear and convincing evidence that Respondent violated the provisions of Section 466.028(1)(s), Florida Statutes, as alleged in Count One of the Second Amended Administrative Complaint.

    
    

77. Petitioner has also established by clear and convincing evidence that Respondent violated the provisions of Section 466.028(1)(c), Florida Statutes, as alleged in Count Two of the Second Administrative Complaint. Respondent's attempt to establish that the plea of nolo contendre to the criminal charges was merely a plea of convenience is rejected because of the convincing evidence as to the events of August 2, 1995.

78. Petitioner correctly points out that Respondent has been given many opportunities to turn his life around, and that as of August 2, 1995, he had clearly failed to do so. This incident of August 2 was but the last of several that required police intervention. As recently as July 28, 1995, the police had come and confiscated the drug paraphernalia that was in the bedroom. On August 2, 1995, that paraphernalia had been replaced. While revocation of licensure, as recommended by Petitioner, is within the discretion of the Board of Dentistry, the undersigned has concluded that it is more appropriate to make use of the PRN, since that program was developed to assist impaired practitioners such as Respondent. Whether this is the Respondent's last chance remains to be seen.

    
    

79. Dr. Eustace, Dr. Goetz, and the PRN have agreed to undertake the responsibility of Respondent's recovery. While the testimony of Dr. Eustace and Dr. Goetz has been accepted as establishing that Respondent is presently safe to practice since he is being monitored pursuant to a PRN contract, Dr. Steiner's opinion that Respondent is beyond help by the PRN should not be ignored. Instead, those undertaking the responsibility for Respondent should be alerted to the fact that this is a difficult case that will require very close monitoring.

    
    

80. Rule 59Q-13.005, Florida Administrative Code, contains certain disciplinary guidelines pertinent to this proceeding. Rule 59Q-13.005(1) provides, in pertinent part, as follows:

    
    

    (1) Unless relevant mitigating factors are demonstrated the Board shall always impose a reprimand and an administrative fine not to exceed $3,000.00 per count or offense when disciplining a licensee for any disciplinary grounds listed in subsection (2) or (3) of this rule. The reprimand and administrative fine is in addition to the penalties specified

    in subsections (2) and (3) for each disciplinary ground.

    
    

81. Rule 59Q-13.005(3), Florida Administrative Code, provides, in pertinent part, as follows:

    
    

    (3) When the Board finds an applicant or licensee whom it regulates under Chapter 466, Florida Statutes, has committed any of the acts set forth in Section 466.028, Florida Statutes, it shall issue a Final Order imposing appropriate penalties within the

    ranges recommended in the following disciplinary guidelines:

    * * *

    (d) Being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which directly relates to the practice of dentistry or dental hygiene. The usual action of the Board shall be to impose any of the penalties specified in subsection 466.028(2), F.S., dependent upon the gravity of the underlying conduct. However, in the

    case of criminal conduct involving . . . drug violations, the Board shall impose a suspension or revocation. . . .

    * * *

    (w) Being unable to practice his profession with reasonable skill and safety to patients by reason of illness, or use of alcohol, drugs, narcotics, chemicals or any other type of material or as a result of any mental or physical condition. The usual action of the Board shall be to impose a penalty of suspension until such time as the licensee demonstrates rehabilitation followed by a period of probation under such terms and conditions as set by the Board and/or restriction of practice. . . .

    
    

82. The Respondent's license was suspended by the ESO entered September 15, 1995. When the ESO was entered, Respondent was not being monitored by PRN and he was not safe to practice dentistry. Since October 20, 1995, the Respondent has been subject to a PRN contract. Based on the testimony of Dr. Eustace and Dr. Goetz, the undersigned has concluded that, as of the formal hearing, Respondent could safely practice so long as he is adhering to the terms of the PRN contract. The recommendation that follows includes the extension of that suspension for a period of one year. This suspension should be viewed as a penalty to be imposed against Respondent for committing these offenses. Because of Respondent's history of relapse, Petitioner should require the PRN to attest at its Board meeting in August 1996 that Respondent has adhered to the terms of his PRN contract and that he remains capable of safely practicing dentistry.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which finds that Respondent

violated the provisions of Section 466.028(1)(c) and (s), Florida Statutes,

which imposes an administrative fine in the amount of $6,000.00, which suspends his license to practice dentistry until September 14, 1996, which requires the PRN to attest at its Board meeting in August 1996 that Respondent has adhered to the terms of his PRN contract and that he remains capable of safely practicing dentistry, and which places his licensure on probation for as long as he practices dentistry in Florida. It is further recommended that the terms of his suspension and the terms of his probation require that he maintain a contract with the PRN at all times and that he strictly adhere to all terms of the PRN contract. It is further recommended that Respondent be reprimanded for these two offenses.

DONE AND ENTERED this 2nd day of February 1996 in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON, 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 2nd day of February 1996.

ENDNOTE

1/ This fact was stipulated to by the parties. In his post-hearing submittal, Respondent argues that there was no proof that the crimes relate to the practice of dentistry. That argument is without merit and contrary to the stipulation.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-1795

The following rulings are made as to the proposed findings of fact submitted by Petitioner.

1. The proposed findings of fact in paragraphs 1-30, 32-33, 35-50, 52-64, and 67-68 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 31 are adopted in part by the Recommended Order. The proposed finding includes a statement that two consultants evaluated Respondent on the date in question. It is clear that Dr. Steiner evaluated Respondent on that date. It is not clear who the other consultant was.

3. The proposed findings of fact in paragraph 34 are rejected as being unnecessary to the conclusions reached. While the parties stipulated that this suspicious incident occurred, the incident was not shown to be relevant to this proceeding.

4. The proposed findings of fact in paragraph 51 are rejected as being contrary to Respondent's late-filed exhibit 3.

5. The proposed findings of fact in paragraphs 65 and 66 are rejected as being argument.

The following rulings are made as to the proposed findings of fact submitted by the Respondent.

1. The proposed findings of fact in paragraphs 1-27 and 29 are adopted in material part by the Recommended Order.

2. The proposed findings of fact in paragraph 28 are subordinate to the findings made.

3. The proposed findings of fact in paragraph 30 are rejected as being unsubstantiated by the evidence. While there may be some dispute as to whether the drug paraphernalia belonged to Dr. Iver or his wife, the evidence as to Respondent's guilt to the criminal charge of battery was compelling. The contention that this was a plea of convenience is not persuasive.

4. The proposed findings of fact in paragraph 31 are rejected as being contrary to the stipulation of the parties and contrary to the findings made.

COPIES FURNISHED:

Wendy Smith Hansen, Esquire Nancy Snurkowski, Esquire

Agency for Health Care Administration 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Harold Braxton, Esquire

One Datran Center, Suite 400 9100 South Dadeland Boulevard Miami, Florida 33156-7815

William Buckhalt, Executive Director Board of Dentistry

Agency for Health Care Administration 1940 North Monroe Street

Tallahassee, Florida 32399-0765

Jerome W. Hoffman, General Counsel Agency for Health Care Administration Fort Knox, Building 3

2727 Mahan Drive

Tallahassee, Florida 32309

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 ten 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: 95-001795

Orders for Case No: 95-001795