STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CECILIA C. DIAZ, )

)

Petitioner, )

)

vs. )

) Case No. 00-0748 DEPARTMENT OF HEALTH, BOARD )

OF DENTISTRY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida, on May 19, 2000, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Dominic J. Baccarella, Esquire

Baccarella & Baccarella, P.A. 4144 North Armenia Avenue Suite 300

Tampa, Florida 33607

For Respondent: Edwin A. Bayo, Esquire

Office of the Attorney General Department of Legal Affairs The Capitol, Plaza Level 01

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue for consideration in this matter is whether Petitioner, Cecelia Diaz, is qualified for licensure as a dentist in Florida.

PRELIMINARY MATTERS

By Order dated January 18, 2000, the Board of Dentistry announced its vote to deny Petitioner’s application for licensure as a dentist in Florida because she had been convicted or found guilty of a crime related to the practice of dentistry. Thereafter, through counsel, Dr. Diaz filed a Petition for Formal Administrative Hearing, and this hearing ensued.

At the hearing, Petitioner testified on her own behalf and presented the testimony of her daughter, Zuzell Salgado.

Petitioner also introduced Petitioner’s Exhibits A and B. Respondent presented no evidence.

No transcript of the proceedings was furnished. A certified court reporter was not provided by the Board. The hearing was recorded by magnetic tape. The original tape was furnished to the undersigned at the hearing and is transmitted to the Board herewith.

Neither counsel submitted matters in writing subsequent to the hearing. Those matters which were submitted were carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, the Board of Dentistry was the state agency in Florida responsible for the licensing of dentists in this state and the regulation of the

   dental profession. Petitioner is not licensed as a dentist in Florida.

2. Petitioner was awarded a degree in General Dentistry at the University of Santiago de Cuba in October 1973. Thereafter, for almost fifteen years, she practiced dentistry in Cuba. In 1981 her husband was forced to leave Cuba for political reasons but, because of her advanced schooling, she was denied permission by the Cuban government to leave with him. In 1987, Petitioner was permitted to leave Cuba for the United States with her two daughters.

3. In February 1991, for reasons not relevant to the issues here, Petitioner and her husband were divorced. She was forced to provide for her two daughters with no financial help from their father. At the time she was both working and studying to prepare for her dental licensing examinations.

4. In May 1991, Petitioner sat for and passed Parts I and II of the National Examination. The following November, she presented her documents for the mannequin examination, the third part of the examination and the last one to be offered in Florida. Initially, Petitioner was denied permission to take the mannequin examination because, it was alleged, she did not have the requisite educational credentials. However, one week before the mannequin examination was to be given, she appeared before the Board of Dentistry and convinced the members to allow

   her to take the mannequin examination with the understanding her results would be withheld pending receipt of appropriate documentation from Cuba.

5. Petitioner did not pass the mannequin examination, and, she contends, between 1991 and 1995, there was no way for a foreign dentist to be licensed as a dentist in Florida, upon testing by a mannequin examination. Only New York and California administered a mannequin examination, and Petitioner went to California to take a course to prepare herself for taking the mannequin examination in California.

6. After taking the course, she returned to Florida to prepare to take the examination, and in March 1994, in furtherance of that aim, searched for patients who met the criteria needed for the examination to practice on. She admits this was a mistake. As a result of her actions, on April 1, 1994, she was charged in Circuit Court in Hillsborough County with practicing dentistry without a license. Her attorney recommended she accept a plea bargain with pre-trial intervention. Based on her successful completion of the pre- trial intervention program, the matter was closed without Petitioner having a conviction on her record.

7. In 1995, Florida initiated a program for the licensing of foreign dentists and Petitioner was selected to participate

   in January 1996. She was in the program for two years at the University of Florida, assisting full time.

8. In June 1998, Petitioner took the State of Florida Dentistry examination. She passed the written part of the examination and was given high passing grades on the clinical portion by two of the three examiners. The third clinical examiner, however, gave her a grade low enough to cause her to fail the clinical portion. Petitioner went to appear before a review panel in Tallahassee where, she claims, the examiner who did the review agreed with her on the discrepancy. The review examiner recommended, however, that though she could request a hearing, the hearing would be held after the next examination, and he felt, from looking at her work, that she could pass the examination. Therefore, she did not request a rehearing.

9. Petitioner took the clinical portion of the dental examination in December 1998. She did not pass, though she feels she did well on all questions except that relating to what she referred to as the RCT, not otherwise defined. This one question caused her to fail the examination by .007 of a point. Petitioner considers it unusual that in the past, everyone who took the review course for foreign dentists at the University of Florida, the one she took, passed the exam. She did not.

10. Ms. Diaz requested a review of the procedure for which she did not obtain a passing grade and found that the reviewer

    assigned to her was the same individual who had conducted the review of her prior effort. The reviewer began examining her work in a way which she did not consider fair, and when she tried to explain her procedure, he accused her of screaming at him. She requested the review be terminated and she left the office in tears.

11. After that review, Petitioner filed an application for formal hearing, but before the hearing could be held, in May 1999 she received notification from the Board that she had passed and the hearing was not necessary. However, before a license was issued, in August 1999, Petitioner was again arrested in Hillsborough County and charged with practicing dentistry without a license. Petitioner admits that at the time alleged in 1999 she practiced dentistry without a license, and that in 1994 she also practiced dentistry without a license.

12. Petitioner contends that she only began seeing patients in both instances when people from Cuba, who knew she was a dentist and who had no money for dental care, asked her for help. She claims to have taken little money for the work she did - only a small amount to pay for the supplies it was necessary for her to buy.

13. A search of Petitioner’s home was conducted on July 28, 1999, pursuant to a search warrant. The investigator conducting the search found an appointment book, dental records,

    books and papers, in addition to a dental chair with a basin, as well as an x-ray machine and cabinets of dental equipment and supplies. Taped to some cabinets were before and after pictures of patients.

14. Petitioner contends that at the time of the search she had all that equipment, which she had been given without pay by the custodian of a mall in which a dentist’s office had closed. The custodian was told by the landlord to get rid of the equipment, and he remembered Petitioner who had come into the mall earlier in search of a site for a dental office when she opened. At the time, the space had been rented to another tenant. However, the custodian remembered Petitioner and called her to ask if she wanted the equipment. She did, and he helped her transport it to her home. At no time did he take any money from Petitioner, nor did she do any dental work for him.

15. Nonetheless, Petitioner was again convicted of practicing dentistry without a license. At its meeting in Tampa on January 8, 2000, the Board of Dentistry considered Petitioner’s application for licensure and voted to deny it based on her implication in two incidents of practicing dentistry without a license. Even though no adjudication of guilt was entered in either case, it was the official action which constituted being found guilty of those offenses regardless of adjudication which supported the Board action.

16. Petitioner is currently working as a receptionist in an office making $300 per week working nine-hour days. Her current financial obligations for school loans and other debt exceeds $42,000. No evidence of any malpractice or inappropriate treatment was forthcoming.

    CONCLUSIONS OF LAW

    
    

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

18. Petitioner has requested a formal hearing based on the Board of Dentistry's vote to deny her a license to practice dentistry in this state, based on her conviction of a crime related to the practice of dentistry, specifically the unlicensed practice of dentistry.

19. Section 466.028(2) authorizes the Board of Dentistry to deny an application for licensure, regardless of qualification of the applicant, when it finds an applicant guilty of any of the grounds set forth in subsection (1) of this section. Subsection 466.028(1)(c), Florida Statutes, provides that being convicted or found guilty, regardless of adjudication, of a crime in any jurisdiction which relates to the practice of dentistry, constitutes grounds for disciplinary action set forth in subsection (2).

20. The evidence is clear, and Petitioner admits, that she has twice been arrested for the unlawful practice of dentistry, a crime in Florida. If the action taken as a result of these arrests constitutes a determination of misconduct, regardless of whether she was adjudicated guilty or not by a court, the Board of Dentistry is authorized to deny her a license to practice.

21. As a result of the 1994 arrest, she was entered into the pre-trial intervention program which she successfully completed and from which she was released in January 1996. As a result of the 1999 arrest, the documentary evidence indicates that adjudication of guilt was withheld by the court.

    Petitioner admits that she was providing dental services to a select patient group prior to her arrest. Under the circumstances, the arrest and subsequent court action, though not constituting a formal adjudication of guilt, constitute a determination that she had committed the offense charged, and form a legitimate basis for the Board's denial of a license to practice dentistry.

22. Though the Board is legally authorized to deny the Petitioner a license, it must be noted that the denial is based exclusively on her unauthorized practice, not on any other misconduct. By the same token, the Board's examiners have already determined that she meets the educational and technical requirements for licensure, and there is no indication she has

    in any way been the subject of any complaint regarding her skills as a dentist.

23. The Petitioner's professional history shows that she has limited her activities to a small clientele, and if her testimony is to be believed, she has not earned great sums through those activities. Notwithstanding the fact that she is technically subject to denial, the fact remains that she has passed all technical and educational requirements for licensure in Florida, and she does not appear to constitute any danger to the population of this state.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry issue a license to practice dentistry in Florida to the Petitioner, Cecelia C. Diaz, such license being placed on probation for a period of five years under such conditions as the Board may specify.

DONE AND ENTERED this 23rd day of June, 2000. In

Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2000.

COPIES FURNISHED:

Edwin A. Bayo, Esquire

Office of the Attorney General Department of Legal Affairs, The Capital, Plaza Level 01

Tallahassee, Florida 32399-1050

Dominic J. Baccarella, Esquire Baccarella & Baccarella, P.A. 4144 North Armenia Avenue Suite 300

Tampa, Florida 33607

William H. Buckhalt, Executive Director Board of Dentistry

Department of Health

4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701

William W. Large, General Counsel Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

Angela T. Hall, Agency Clerk Department of Health

4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of 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: 00-000748

Orders for Case No: 00-000748