STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

FLORIDA STATE BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 76-715

)

JAMES H. BIRD, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, an administrative hearing was held before Diane D. Tremor, Hearing Officer with the Division of Administrative Hearings, at 1:00

P.M. on September 9, 1976, in the Conference Room of the Department of Citrus,

115 East Memorial Boulevard, Lakeland, Florida.

APPEARANCES

For Petitioner: L. Haldane Taylor

605 Florida Theatre Building

128 East Forsyth Street Jacksonville, Florida 32202

For Respondent: Jack T. Edmund and

John C. Wilkins, III Edmund & Wilkins Post Office Box 226

Bartow, Florida 33830 INTRODUCTION

By an Accusation dated March 26, 1976, petitioner charged respondent with:

"... misconduct in his business or personal affairs in such a manner as to bring discredit upon the profession of dentistry in violation of Florida Statutes section 466.24(3)(a), in that, having previously pleaded guilty on December 6, 1974, to the misdemeanor charges

of driving while under the influence and leaving the scene of an accident in case no. TT-74-8725, in the County Court of Polk County, Florida, and

having been sentenced to eighteen months probation, James H. Bird, D.D.S., subsequently violated the conditions of his probation and was adjudicated guilty on a Rule to Show Cause on November 14, 1975, and sentenced to serve six months in the Polk

County Jail and did serve over three months incarceration in the Polk County Jail.

Thereafter, respondent requested a hearing on the matters of accusation, and the undersigned Hearing Officer with the Division of Administrative Hearings was designated to conduct the hearing.

Respondent stipulated that the facts contained in the Accusation were true, but denied that such facts, under the circumstances of this case, constituted misconduct in respondent's business or personal affairs which would bring discredit upon the dental profession.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. At all times pertinent to this proceeding, respondent was licensed to practice dentistry in the State of Florida, initially receiving his license in 1952.

   
   

2. On March 28, 1974, respondent was arrested and issued traffic citation for the offense of driving while under the influence of alcoholic beverages (DWI). He was later summoned to appear to answer an information charging him with DWI and leaving the scene of an accident.

   
   

3. On December 6, 1974, respondent pled guilty to both charges. On the same date Judge William A. Norris, Jr. of the Polk County Court entered his order withholding adjudication of guilt and placing respondent on probation for a period of eighteen (18) months. Among the conditions of his probation were the following:

   
   

   1. to live and remain at liberty without violating any law, and

   2. to abstain from the use of all alcoholic beverages including beer.

      
      

4. On October 24, 1975, County Judge J. Tim Strickland issued a Rule to Show Cause why respondent's probation should not be revoked and sentence be entered upon the ground that respondent had been charged with disorderly intoxication on August 26, 1975, forfeited his bond on September 11, 1975 and was convicted of DWI on October 1, 1975 in the Lakeland Municipal Court.

   
   

5. Pursuant to the Rule to Show Cause, Judge Strickland revoked respondent's probation, adjudicated him guilty of the original charges of DWI and leaving the scene of an accident, and sentenced respondent to six (6) months in the county stockade. This order dated November 14, 1975, provided that respondent was "to receive all necessary medication and regular checks of any medical or emotional condition he may have." While incarcerated in the Polk County Jail, respondent was permitted, by Order of Judge Strickland, to leave the jail for appointments and treatments by Dr. Edgar B. Hodge.

   
   

6. On March 9, 1976, after respondent had served more than three months of his six-month sentence, Judge Strickland suspended the balance of respondent's sentence upon the conditions of good conduct, no future violations of law nor use of alcohol or drugs and continuance of psychiatric treatment as needed.

   
   

7. Respondent is currently under the care and treatment of Dr. Edgar Hodge, a physician and psychiatrist. Dr. Hodge first saw respondent in 1965 in

   consultation for another doctor who was respondent's physician at the time. Dr. Hodge then diagnosed respondent's illness as manic-depressive psychosis -- a psychotic illness with mood swings from states of depression to states of manic behavior.

   
   

8. Dr. Hodge did not become respondent's physician until October of 1975. It is Dr. Hodge's opinion that respondent's use of alcohol and prior violations of the law were results of the manic phase of his illness and that respondent is not an alcoholic. It was further felt that while respondent was knowledgeable of his actions while in the manic-depressive state, he was not, in the medical sense, responsible for his actions due to his illness. Dr. Hodge felt that prior to October of 1975, respondent had been deprived of adequate medical treatment. Now, it is Dr. Hodge's opinion that with the continued use of the medication lithium and continued medical treatment and supervision, respondent's illness can be kept under control and respondent can operate normally and competently as a member of the dental profession.

   
   

9. Two witnesses who were dental patients of respondent were called to the stand to testify in his behalf. One witness stated that she was aware of respondent's conviction and incarceration, but had never been dissatisfied with his professional services as a dentist. The other witness was unaware of respondent's recent incarceration until the date of the hearing, but testified that he would continue to go to respondent as a dental patient. Neither witness had ever observed respondent in his office under the influence of narcotics or alcohol. Thereafter, thirteen witnesses adopted the testimony previously given by the two witnesses mentioned above.

   
   

   CONCLUSIONS OF LAW

   
   

10. Respondent is charged with misconduct either in his business or in his personal affairs which would bring discredit upon the dental profession. A finding of guilt on this charge is grounds for suspension or revocation of respondent's license to practice dentistry, pursuant to F.S. s. 466.24(3)(a).

    
    

11. There has been no evidence in this proceeding that respondent has been guilty of misconduct in his business affairs. Although the evidence does illustrate that Dr. Bird was incarcerated for a period exceeding three months, there was no evidence that his patients were harmed or inconvenienced during this period of time. Thus, the remaining question is whether the facts as set forth above constitute misconduct in respondent's personal affairs which would bring discredit upon the dental profession.

    
    

12. The undersigned Hearing Officer concludes that repeated violations of the law constitute misconduct in one's personal affairs. The facts of this case illustrate that respondent violated both the laws and the conditions of his probation on more than one occasion. It is further concluded that such misconduct is of a nature which would bring discredit upon the dental profession. The Legislature has declared it to be a matter of public interest and concern that the dental profession merit and receive the confidence of the public. F.S. s. 466.01. The confidence of the public is necessarily based upon a perception, not only of the professional skills of individuals practicing dentistry, but also of the personal and general character of the individuals engaged in the profession. In order for the profession to merit the confidence of the public, the individuals comprising the profession must merit that confidence. The repeated violation of the law and lawful orders of a court of competent jurisdiction is not conduct which merits the confidence of the public

    in respondent, a member of the dental profession. Such conduct therefore is of a nature which would bring discredit upon the profession as a whole.

    
    

13. Having concluded that respondent is guilty as charged in the Accusation, the degree of his culpability is relevant with respect to the proper penalty to be imposed. There was no evidence that respondent had ever been the subject of disciplinary action by the State Board of Dentistry in his approximate twenty-four years of registration and licensure with the Board. The testimony of his psychiatrist, Dr. Hodge, was that respondent's excessive drinking was a result of his illness and that, while respondent was knowledgeable of his actions, he was not responsible for them in the medical sense. Further, Dr. Hodge felt that respondent's manic-depressive psychosis was now under control and would remain so with the use of medication and continued medical treatment and supervision.

    
    

14. Under these circumstances, and there being no evidence of misconduct on respondent's part in the actual practice of dentistry, it is felt that the penalties of revocation or suspension would be too harsh. A public reprimand and a period of probation conditioned upon continued medical treatment would sufficiently punish respondent, maintain the dignity of the dental profession and would adequately safeguard and protect the public in general who are entitled to receive the benefits of respondent's training.

RECOMMENDATION

Based upon the findings of fact and conclusions of law recited above, it is recommended that the Florida State Board of Dentistry:

1. find respondent guilty of misconduct in his personal affairs which would bring discredit upon the dental profession, in violation of F.S. s. 466.24(3)(a); and

   
   

2. issue a public reprimand censuring respondent's acts of misconduct; and

   
   

3. place respondent on probationary status for a period of three (3) years, with the condition that he continue to obtain medical and/or psychiatric treatment for his illness.

Respectfully submitted and entered this 11th day of October, 1976, in Tallahassee, Florida.

DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

L. Haldane Taylor

605 Florida Theatre Building

128 East Forsyth Street Jacksonville, Florida 32202

Jack T. Edmund and John C. Wilkins, III Edmund and Wilkins

P.O. Box 226

Bartow, Florida 33830

Docket for Case No: 76-000715

Orders for Case No: 76-000715