STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 75-577

)

JULES KLEIN, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

THIS CAUSE came on to be heard on July 28, 1975, in the Grand Jury Room of the Orange County Courthouse in Orlando, Florida, upon notice to the parties and to the public as required by Chapter 120, Florida Statutes.

APPEARANCES

For Petitioner: Mr. Howell Taylor

Counsel for the Board

605 Florida Theatre Building

28 East Forsyth Street Jacksonville, Florida 32202

Egerton K. van den Berg, VAN DEN BERG, GAY & BURKE

16 South Magnolia Avenue Post Office Box 793 Orlando, Florida 32802

WITNESSES

Dr. Alvin H. Savage

Mr. John F. Plumb, Chief Investigator,

Department of Professional and Occupational Regulations Dr. Jules Klein, D.D.S.

FINDINGS OF FACT

1. The Board had charged the Petitioner, Dr. Jules Klein, with violations of Sections 466.27(2) and 466.24(3)(g)(k) and (m), Florida Statutes. Dr. Alvin

   H. Savage was called by the Board to testify that he had seen Dr. Klein in the early spring of 1974. At that time Dr. Savage mentioned to Dr. Klein a sign on the side of the building in which Dr. Klein maintained his professional office. Dr. Savage identified Exhibits 1, 2, and 3 as photographs of said building and the signs at the building as they existed at the time. Dr. Savage testified that the sign bearing Dr. Klein's name was not objectionable and that he had received no complaints regarding said sign. Dr. Savage testified that he had received complaints about the sign as it existed on Dr. Klein's building at that time. The wording of that sign was "Longwood Dental Arts Center". Dr. Savage,

   on cross-examination, testified that Dr. Klein had invited him to his office to discuss Dr. Klein's status in the local professional association. During their discussion Dr. Savage testified that he had suggested to Dr. Klein that as Jews the community probably held them to a higher standard than other members of their profession, and that Dr. Klein should attempt to avoid even the appearance of anything questionable. Although it was suggested that Dr. Savage's comment was evidence of antisemitic discrimination, in the context of discussion as revealed by both Dr. Savage's and Dr. Klein's testimony, it would appear general advice from an older professional man who had practiced in the community for some time to a younger colleague. During this visit Dr. Savage raised the question of the sign on Dr. Klein's building and was advised by Dr. Klein that he would see the landlord of the building about altering the sign.

   
   

2. Thereafter, Dr. Savage testified that the sign was changed, and identified Exhibit 5 and 6 as photographs of the building in which Dr. Klein's professional office was located and the amended sign which read, "Longwood Dental Bldg." Dr. Savage testified that he had received only two complaints regarding the amended sign during the preceding year and that one of the two complaints had been received shortly before the date of final hearing. On cross-examination, Dr. Savage opined that Dr. Klein's sign violated the statute by calling attention to the practice of dentistry by an individual, indicating

   further that if more than one dentist were practicing at Dr. Klein's office that it would not, in his opinion, be in violation of the statute. Dr. Savage based his opinion upon the Code of Ethics of the Florida Dental Association, Bearing Officer's Exhibit 10.

   
   

3. Mr. John F. Plumb testified that he had taken the photographs introduced as Exhibits 5 and 6 on the morning of the hearing. He further testified that he visited Dr. Klein's office on March 12, 1975, April 29, 1975, and July 28, 1975. On both the March and April visits he had spoken with Dr. Klein and had found him very cooperative, although quite concerned about why his sign was an apparent violation while some of the signs in the locality, one of which was immediately across the street from his office, were not in violation. Mr. Plumb testified that he had discussed with Dr. Klein the provisions of Section 466.27(2), Florida Statutes, and the sign's apparent violation of its provisions. Mr. Plumb testified that during the March 12, 1975 visit with Dr. Klein that Dr. Klein indicated that he would modify the sign; however, during the April 29, 1975 visit, Dr. Klein indicated that he would not alter the sign on the advice of his attorney. Dr. Klein then testified in his own behalf.

   
   

4. Dr. Klein testified that the sign, "Longwood Dental Arts Center" had been chosen originally because patients had indicated that they could not find his office. Dr. Klein testified that he had become truly concerned about the ability of persons to find his offices when dental supply salesmen reported difficulty in finding his offices. At that time Dr. Klein was practicing with his brother-in-law, Dr. Guy. Dr. Klein testified that having determined the need for a sign on the building, that he looked at the building signs on other buildings in the vicinity. Together with Dr. Guy, he determined that the building be named "Longwood Dental Arts Center" because he and Dr. Guy eventually intended to have am orthodontist in association with then. On cross- examination Dr. Klein testified that "medical arts" was not used because they had had no intention of having doctors of medicine practice there. Dr. Klein testified that he then contacted a sign maker who had dome other similar signs, who suggested the layout and size of the sign used on the building. Dr. Klein testified that after Dr. Savage's visit that he had received a visit from Dr. Franklin. Dr. Klein testified that he had the impression that the removal of

   the words "Arts Center" would eliminate the objection to the sign, and the sign was so modified.

   
   

5. After the sign was changed, Dr. Klein testified that he was again contacted but that he had been unable to determine what was acceptable wording for the sign. He testified that in am effort to obtain guidance as to what was "professionally" acceptable he had contacted the American Dental Association and received a copy of their ethic advisory opinions. See Exhibit 16. This exhibit provides:

   
   

   "1. A building may be identified as the '...Dental Building,' except that the full name of the building cannot include the name of a participating dentist. The mane selected should not imply the practice of superior or more artful dentistry, imply any connection with any institutional or governmental

   unit or organization, or imply or specify the practice of any special area of dentistry. The full name selected shall be limited to the function of helping the patient locate the building.

   
   

   2. A component society may determine community custom to prohibit dentists from using floodlights to draw attention to their nameplates on the outside of their private practice facilities. Component societies should be aware, futhermore, that the state

   dental practice acts ordinarily establish regulations on the use of office door lettering and signs."

   
   

6. The Florida Dental Association rules would also allow the use of "Dental Building", but only where two or more dentists practice within the professional building. The basis for this distinction was explained by Dr. Savage, who stated that the provisions of Subsection k of Section 466.24(3) relating to".. calling the attention of the public to any person engaged in the practice of dentistry..." were not violated if two or more persons practiced in a building identified as a "Dental Building."

   
   

   CONCLUSIONS OF LAW

   
   

7. Subsection of Section 466.24(3) prohibits the use or exhibition of large display signs calling attention of the public to am individual practicing dentistry.

   
   

8. The specific prohibition which would be applicable in this case is that dealing with a large display sign or signs. While the statute does not prohibit any specific language, a sign may call more attention to the practice of dentistry by a person or persons dependent upon the words used within the sign. When the language of the sign refers directly to the practice of dentistry, the sign more directly calls attention to the practice of dentistry by a person or persons. Rather than constituting a violation of Subsection k of Section 466.24(3) per se, the use of words such as "Dental" requires that a sign's size be scrutinized more closely to determine the reasonableness of the size as it relates to the legitimate purpose of informing a patient of the location of the building in which a professional practice is located as opposed to calling undue attention to the practice of dentistry engaged in by a person or persons. Obviously, every sign must be judged separately in terms of the appropriateness of its size to serve the statutorily permitted purpose. The question of whether

   the sign on Dr. Klein's building is violative of the statute is a mixed question of law and fact which relates to the size of the sign.

   
   

9. In the instate case the size of the sign must be judged in terms of several factors. The photographic evidence and testimony reveals that the wording of the sign is "Longwood Dental Bldg." The name "Longwood" does not refer to a person but is a geographical name. Therefore, the provisions of Section 466.24(3)(g) and Section 466.27, Florida Statutes, are not applicable. The sign is unlighted and is not neon so it does not violate the provisions of Section 466.24(3)(k), Florida Statutes. The sign consists of dark brown or black letters of two different sizes on a buff colored building. The sign does not contain the word "Dental" therefore it calls public attention more directly towards the practice of dentistry than a more neutral word. The size of the letters used in "Longwood" and "Bldg." are approximately 14 inches high and 7 inches wide, and the letters in "Dental" are 15it inches high and 12 inches wide. The building is located approximately 40 feet from the center of the right of way of State Road 434 and the sign is located on the northwest corner of said building. From the normal point of observation the sign would be approximately 100 feet from the center of the street. The building is currently occupied by one dentist, the Petitioner; however, it was shared with another dentist prior to the pendency of these charges.

   
   

10. There was testimony that the current sign was the result of the alteration of an earlier sign, "Longwood Dental Arts Center"; however, be charges here relate solely to the sign reading "Longwood Dental Bldg." The earlier sign is only relevant to this case in that it explains the retention of the word "Dental" and a different size and style print, and the change indicates that the Petitioner has tried to conform his sign to an acceptable standard.

    
    

11. When the sign is considered in terms of its permitted use, the the words "Longwood" and "Bldg." are not overly large in view of the' building's location, the sign's location, the sign's color and its intent to inform patients of the identity of the building within sufficient time to safely turn into the building's parking lot while travelling at reasonably high speeds around a sharp curve of a major state road. However, as stated above, the use of the word "Dental" tends to call public attention more directly to the practice of dentistry as opposed to the location of the individual's professional Office. In this case, the word "Dental" appears in letters which are noticeably larger than the other letters In the sign. See Exhibit 16. When the word "Dental" in a sign emphasized as in this instance, it calls immediate, direct and undue public attention to the practice of dentistry by the occupant(s) of a building. In the instant case, the emphasis of the word "Dental" within the sign created by the larger size of the letters therein causes the sign to be too large for its statutorily permitted purpose, and it is a "large display sign".

However, there are some important considerations which also must be discussed in this case in addition to the size of the sign. It appears that the Petitioner did attempt to cooperate with the Board and others in conforming his sign, and attempted to seek advice from many sources in that effort. At the bearing, Petitioner was obviously concerned about what he felt was selective enforcement of this statute, because of other similar signs in his locality. He was obviously frustrated by the lack of positive standards. Both Dr. Savage and Mr. Plumb testified that Dr. Klein was cooperative, helpful and until April, 1975, was willing to alter the sign in question as would be necessary to conform with the Board's wishes. It was only after receipt of Exhibit 17 when Dr.

Klein, on advice of counsel, refused to alter the sign. Exhibit 17 clearly

expresses the view of the Board that Section 466.27(2), supra, would be controlling and would limit Dr. Klein's use of signs to professional signs as defined therein. However, Dr. Savage testified that Dr. Klein's professional sign [Section 466.24(2) sign] was not objectionable therefore Section 466.24(2), F.S., would not appear to have been applicable based upon his testimony.

Because of Dr. Klein's efforts to resolve the permissible language of his building sign, the absence of any clear guidance to Dr. Klein regarding how he could have conformed his building sign, and Dr. Klein's cooperative attitude, I find that even though Dr. Klein is technically in violation of Section 466.24(3)(k), that he should not suffer any substantial penalty. Therefore, I recommend that Dr. Klein be given four (4) weeks to alter his sign and thereafter have his license suspended until the sign is changed to comply with the statutes; and further, receive a private letter of reprimand. See Brod v. Jernigan, 188 So2d 575.

Entered this 27th day of August, 1975, in Tallahassee, Florida.

STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

Howell Taylor, Esquire

605 Florida Theatre Building

28 East Forsyth Street Jacksonville, Florida 32202

Egerton K. van den Berg VAN DEN BERG, GAY & BURKE

16 South Magnolia Avenue

P.O. Box 793

Orlando, Florida 32802

Executive Director

Florida State Board of Dentistry 6501 Arlington Expressway Jacksonville, Florida

Docket for Case No: 75-000577

Orders for Case No: 75-000577