STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STATE BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 79-1755

)

MAX R. McCONNELL, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradell, held a public hearing in this case on October 17, 1979, in Tampa, Florida.

APPEARANCES

For Petitioner: L. Haldane Taylor, Esquire

2516 Gulf Life Tower Jacksonville, Florida 32207

For Respondent: Max R. McConnell, D.D.S., Appearing Pro Se 3606 South Manhattan Avenue

Tampa, Florida

ISSUE

The issue posed for decision herein is whether or not the Respondent, a licensed dentist, should be disciplined based on conduct which will be set forth hereinafter in detail allegedly violative of Subsection 464.24(3)(a)(m), Florida Statutes, and Chapter 100-56.637(3) and (4)(a), Florida Administrative Code.

FINDINGS OF FACT

1. Max R. McConnell, D.D.S., is a licensed dentist who holds license No. 2743, and as such is authorized to practice dentistry in the State of Florida under the jurisdiction of Chapter 466, Florida Statutes. During times material, Dr. McConnell, Respondent, was engaged in the practice of dentistry and maintained a dental office located at 3606 South Manhattan Avenue, Tampa, Florida.

   
   

2. On April 15, 1977, a representative with the Department of Health and Rehabilitative Services conducted a routine inspection of Petitioner's X-ray equipment. On this occasion, it was discovered that Respondent's X-ray machine, a Weber 6RS/M 6R3967, which is located in the rear room of his dental office, was found to be in noncompliance with the requirements of Chapter 1856, Florida Administrative Code, to-wit, the timer on the machine did not correctly terminate the exposure.

3. Chapter 10D-56.637(3), Florida Administrative Code, provides in pertinent part that:

   
   

   1. Timers. Means shall be provided to ter- minate the exposure at a preset time inter- val, preset product of current and time, or a preset number of pulses or a preset radiation exposure to the Image receptor. In addition,

      1. Termination of exposure shall cause automatic resetting of the timer to its ini- tial setting or to zero.

         (h) It shall not be possible to make an exposure when the timer is set to a zero or off position if either position is provided.

   2. X-ray Control (Exposure Switch)

      (a) A control shall be incorporated into each x-ray system such that an exposure can be terminated at any time. This switch shall be of the dead-man type.

      
      

4. During the April 15, 1977, routine inspection by Petitioner, the Respondent was advised of the nonconformance of the X-ray machine and he agreed to correct the machine within ninety days.

   
   

5. Thereafter, during a subsequent inspection on March 9, 1978, the subject machine was again inspected and again found to be in noncompliance because of the faulty timer, and Respondent was mailed a letter dated March 13, 1975, requesting the necessary corrections be completed as soon as possible. Subsequent visits to Respondent's office on October 12, 1978, and April 25, 1979, revealed that the subject X-ray machine was still found not to be in compliance because the timer failed to terminate the exposure as required in Chapter 10D-56.637(3) and (4)(a), Florida Administrative Code.

   
   

6. The Respondent testified that the subject machine was merely used by himself as a supplemental machine and that the primary machine which he uses correctly terminates the exposure as required by the foregoing chapter. In this regard, two of Respondent's former dental aides who were employed during the times in question testified that the Respondent does not always operate the machine and, while it may be true that he knows how to operate the machine in such a manner as to correctly terminate the exposure, the two dental aides testified that they are called upon to utilize the machine at times. For this reason, it is concluded that the Respondent continues to operate an X-ray machine in his office which he knows to be in noncompliance with Chapter 10D- 56.637(3) and(4)(a), Florida Administrative Code. I shall so retend.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Subsection 120.57(1), Florida Statutes.

   
   

8. The parties were duly noticed pursuant to the notice prod visions of Chapter 120, Florida Statutes.

   
   

9. The authority of the Petitioner is derived from Chapter 466, Florida Statutes, and Chapter 10D, Florida Administrative Code.

10. Competent and substantial evidence was offered to establish that the Respondent continues to utilize in his dental practice an X-ray machine which he knows to be in noncompliance with Chapter 10D-56.637(3) and (4)(a), Florida Administrative Code. As such, the Respondent is guilty of engaging in acts in violation of Florida Statutes Section 466.24.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of law, it is hereby,

RECOMMENDED:

That the Respondent Max R. McConnell, D.D.S., repair the above-described Weber 6R X-ray machine with Serial Number 6R3967, within ten (10) days of the date of the Board's final order or remove such machine from his office within the above-stated period. Additionally, it is recommended that the Respondent, Max R. McConnell, D.D.S., be issued a written reprimed for engaging in the above conduct.

RECOMMENDED this 16th day of November, 1979, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301

(904) 488-9675

COPIES FURNISHED:

1. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207

   
   

   Max R. McConnell, D.D.S. 3606 South Manhattan Avenue Tampa, Florida

   ================================================================= AGENCY FINAL ORDER

   =================================================================

   
   

   STATE OF FLORIDA FLORIDA BOARD OF DENTISTRY

   
   

   FLORIDA BOARD OF DENTISTRY,

   
   

   Petitioner,

   
   

   vs. CASE NO. 79-1755

   
   

   MAX McCONNELL, D.D.S.,

   
   

   Respondent.

   /

   
   

   FINAL ORDER

   
   

   This matter came before the Florida Board of Dentistry pursuant to 12O.57(1)(b)9., F.S., at public meeting on January 23, 1980, at Tallahassee, Florida, for review of the recommended order of the hearing examiner entered herein. A transcript of the proceedings is available, if necessary.

   
   

   FINDINGS OF FACT

   
   

   Upon a review of the complete record, the Board of Dentistry adopts and incorporates by reference the findings of fact of the hearing examiner; however, the Board is of the further opinion that the findings of fact of the hearing examiner are incomplete in that the hearing examiner failed to make the following additional findings of fact which are supported by competent substantial evidence:

   
   

   1. In addition to the inspections of April 15, 1977, March 9, 1978, October 12, 1978, and April 12, 1979, a further inspection of Respondent's radiological equipment was performed on August 12, 1978, and Respondent did not remedy such equipment (T. 26, 11-16).

      
      

   2. Inspecition failure results and approp*

      
      

      *NOTE: The remaining text in this sentence is unreadable on the Final Order filed with this Division and therefore not available in this ACCESS document.

      
      

   3. Respondent continued to use such impaired radiology equipment and attempted to represent to the Board of Dentistry that such equipment was repaired or not in use when, in fact such corrective action was not taken (T. 53-54).

      
      

   4. Respondent signed a statement that such radiological equipment required repair (T. 23).

   5. Respondent was aware of the malfunction of such radiological equipment since 1960 (T. 75).

      
      

   6. The testimony of Ms. Beverly Masheen, an employee of Respondent, reflects that Respondent continued to use malfunctioning radiological equipment after being informed of such malfunction and Respondent attempted to represent such equipment was not in use (T. 49-61).

      
      

   7. The testimony of Ms. Lillian Keyes corroborates the evidence of Ms. Masheen, that Respondent continued to use malfunctioning radiological equipment and to attempt to represent that such equipment was not in use (T. 63-69).

      
      

      CONCLUSIONS OF LAW

      
      

   8. The Board adopts and incorporates by reference the conclusions of law of the hearing examiner, except that the Board specifically finds Respondent in violation of 466.24(d) and (m) Florida Statutes (1978 Supp.).

      
      

   9. Accordingly, it is hereby ORDERED that the license of Respondent, Max

R. McConnell, to practice dentistry in the State of Florida, be suspended for a period of time no less than thirty (30) days from April 27, 1980, and that such license shall not be reinstated until such time as the licensee demonstrates to the satisfaction of the Board of Dentistry at public meetings that the Weber x- ray evidence 6R3967 machine is removed from the Rehabilitative Services' standards. It is further ORDERED that upon reinstatement the license of Respondent shall be placed on probation for five (5) months during which time Respondent shall refrain from violations of Ch. 466 and 455, F.S. Failure to comply with the terms of this probation shall automatically result in the implementation of suspension ordered herein.

DONE AND ORDERED this 21st day of March, 1979 at Gainesville, Florida.

WILLIAM R. DANNAHOWER, D.D.S.

Chairman

Florida Board of Dentistry

Docket for Case No: 79-001755

Orders for Case No: 79-001755