Sudick; Roza J. White; Sol White; Charles Calaman; Respondent Lawrence R. Engel; Cheryl Franklin; Donald Klein; Charles M. Friedman; and, by way of deposition, Leonard M. Sakrais and Steward Allen. Additionally, Petitioner's Exhibits numbered 1 through 6 and Respondent's Exhibits numbered 1, 2-A, 2-B, 3 and 4 were admitted in evidence.
Both parties submitted posthearing proposed findings of fact in the form of a proposed recommended order. To the extent that any proposed findings have not been adopted in this Recommended Order, they have been rejected as not having been supported by the evidence, as having been irrelevant to the issues under consideration herein, or as constituting unsupported argument of counsel or conclusions of law.
At all times material hereto, Respondent has been licensed to practice dentistry under the laws of the State of Florida, having been issued license number DN 0003535.
At all times material hereto, Respondent and another dentist are and have been equal owners of North Dade Dental Offices, which they operate through a professional association bearing their names.
Sol and Roza white saw an advertisement for North Dade Dental Offices in the Sunday newspaper. As a result, they went to North Dade Dental Offices and consulted with Respondent on September 16, 1981. Mrs. White agreed to allow Respondent to fabricate new upper and lower dentures for her; and Respondent signed the Laboratory Procedure Authorization and completed that "prescription" and a North Dade Laboratory Instructions sheet, thereby authorizing and commencing the fabrication of those dentures.
A set of dentures was made for Mrs. White at the North Dade Dental Offices by Respondent and some of his personnel, both identified and unidentified. On October 3, 1981, a full set of dentures was delivered to Mrs. White. Thereafter, she complained to Respondent and others at his office that the dentures were causing pain, that they were unsatisfactory, that they did not fit correctly, that they interfered with her ability to eat, that they had worn or rubbed a raw spot on her gums, and that they caused her face to swell below her eye. She returned to Respondent's office for adjustments on a number of occasions, the exact number of which cannot be determined since the evidence is conflicting and Respondent admits that his records are not accurate. After Mrs. White had returned to North Dade Dental Offices on a number of occasions for adjustments in the hope that the dentures A could be made satisfactory, Respondent suggested to her that she attempt to relieve the pain the dentures were causing her by using whiskey or saltwater. Mrs. White considered that suggestion to be, minimally, unprofessional and refused to thereafter return to North Dade Dental Offices to have Respondent continue working on her dentures.
Instead, Mrs. White went to her doctor of osteopathy and showed him the abrasions caused by her new dentures. She then sought the services of Dr. Charles M. Friedman, a dentist in the same building as her osteopath.
When Friedman examined Mrs. White and the dentures from North Dade Dental Offices, he found that: the lower denture was overextended in relation to the labial frenum and the buccal frenum and shy of proper placement in relation to the lingual frenum; the lower denture had no primary retention or stability; the dentures had no border seal or border molding approximating the muscle extensions; the dentures did not adapt to ridges and moved and unseated during function and when pressure was applied against the ridges; maximum intercuspation of teeth was considerably anterior to the point of first tooth contact; the overall quality of workmanship of the dentures was poor; and the dentures appeared to have been relined without a proper finishing and polishing procedure thereafter. Additionally, the dentures Respondent had agreed to fabricate for Mrs. White could not be adjusted or redone in a way to make them satisfactory because the vertical dimension was incorrect.
The dentures provided by Respondent to Mrs. White therefore failed to meet minimum standards of performance, since they caused tissue ulceration in her mouth, since they fell out of her mouth when she talked, and since they did not enable her to chew food.
After Mrs. White refused to return to Respondent's office due to his comments to her, her husband went to North Dade Dental Offices and personally requested Respondent to refund their money or make a new set of dentures that worked. Respondent refused both requests.
Not only are the office records on Roza White incomplete and incorrect, two facts admitted by Respondent, they also fail to identify the dentist of record.
On February 14, 1981, Lydia Sudick went to the North Dade Dental Offices, where she discussed with Respondent the extraction of a tooth and construction of a new lower denture. Respondent performed the extraction; and, after agreeing to fabricate new upper and lower dentures for Mrs. Sudick, Respondent signed the laboratory authorization forms and issued instructions for the construction of those dentures.
On March 21, 1981, Mrs. Sudick received the new dentures the Respondent agreed to make for her. She immediately encountered problems with those dentures in that a hook on the end stuck her in the inside of her mouth, the dentures caused sores, and they fell out of her mouth.
Mrs. Sudick complained to Respondent and other personnel at his office regarding the problems with her dentures. Respondent declined to refund her money when she made that request; however, Respondent offered to remake her dentures if she would continue to come to the clinic.
The dentures delivered to Mrs. Sudick by Respondent on her last visit to the North Dade Dental Offices were unsatisfactory to her in that they caused her pain and kept falling out of her mouth.
Mrs. Sudick and her dentures were examined by Dr. Leonard M. Sakrais in June of 1981. Sakrais found the following deficiencies: the upper denture had no primary retention or stability; the teeth in the upper denture were set lateral to the ridges; the lower partial denture had no stability or seat; the lower partial denture was inadequate in design for retention; the lower partial denture had a nonfitting buccal wire clasp with no reciprocity for retention; the interarch relationship of the dentures was totally inadequate, with absolutely no centric or intercuspation; and the two dentures were inadequately designed and constructed for function together as a set.
Not only did Sakrais find that the dentures Respondent constructed for Mrs. Sudick failed to meet minimum standards of performance, he also found that the dentures she was wearing when she went to Respondent for the extraction of one tooth were still servicable and would have required only the addition of one tooth to the dentures (to replace the natural one extracted) without any necessity for constructing new dentures at all.
During Mrs. Sudick's visits to North Dade Dental Offices, services were performed on her by a number of unidenti- fied persons. Although no female dentists were employed by or associated with North Dade Dental Offices during the time that Mrs. Sudick was a patient there, impressions were taken inside her mouth by two different women. Respondent knew at the time that those two unidentified women were taking impressions inside Mrs. Sudicks mouth, since he entered the room while that was being done.
Not only were the office records of Lydia Sudick incomplete and inaccurate, two facts admitted by Respondent, they also fail to identify the dentist of record.
On or about June 1, 1981, Charles Calaman, an investigator with the Department of Professional Regulation, visited the North Dade Dental Offices. No state licenses or permits were observed to be posted, although Calaman looked for them specifically. When he inquired as to why no licenses were displayed, one of Respondent's employees advised that the licenses were somewhere being laminated or plagued but was unable to recall where that work was being performed.
On a subsequent occasion, Calaman saw Respondent's license as well as that of the Respondent's partner, and those licenses were neither plagued nor laminated.
Newspaper advertisements for North Dade Dental Offices appeared in the "Neighbors" section of The Miami Herald every Sunday. Both Respondent and his partner at the North Dade Dental Offices instructed the employee handling their account at The Miami Herald that each ad must be presented to them for approval prior to publication. The account executive, who therefor was personally at the North Dade Dental Offices at least once a week, dealt with Respondent or with his partner on an approximately equal basis. Once an ad was approved for publication, that particular ad was run for several Sundays in a row before Respon- dent and his partner would require a different layout. Ads for North Dade Dental Offices covering the time period from January 18, 1981, through December 6, 1981, which were admitted in evidence, were paid for by the professional association comprised of Respondent and his partner, who together owned equally North Dade Dental Offices. The advertisements in question fail to contain the names, addresses, and telephone numbers of all the dentists with whom Respondent was associated at the North Dade Dental Offices on the dates of the advertisements.
The advertisements in question contain information about fees for services other than defined routine dental services. Fillings or crowns are not defined as routine dental services.
The advertisements in question contain information about fees but do not contain, in lettering no less prominent than the general text of the advertisement, a statement that the fee advertised is a minimum fee to be charged for such service and that the actual fee might vary depending upon the complexity involved in a given case.
The advertisements in question contain laudatory statements about the dentists at North Dade Dental Offices and further contain statements relating to the quality of dental services provided, such as the following:
Our Lower Fees & Superior Personalized Dentistry have Established Us as the Leading Full Dental Service in South Florida!
Highest Quality Dental Service; Lowest Possible Fees
Our low fees and quality care is [sic], in our opinion the most realistic
good dentistry available in the South today.
Continuing Our Policy of Highest Quality, Full Dental Service at the Lowest Possible Fees.
We do make high quality dentures & crowns and We don't charge high fees for quality dentistry!
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. Section 120.57(1), Florida Statutes.
At the commencement of the formal hearing in this cause, Petitioner dismissed Counts One through Four of the Administrative Complaint with prejudice, and this cause proceeded forward therefore on Counts Five through Eleven. Counts Five and Seven of the Administrative Complaint charge Respondent with violating Section 466.028(1)(y), Florida Statutes (1981), in rendering professional services to Roza White (Count Five) and Lydia Sudick (Count Seven). That section authorizes the Board of Dentistry to take disciplinary action against a licensee for:
(y) Being guilty of incompetence
by failing to meet the minimum stan- dards of performance in diagnosis and treatment when measured against
generally prevailing peer performance
Even without the expert testimony as to the technical reasons for the deficiencies in both White's and Sudick's dentures, there can be no doubt that dentures which cut the gums and fall out of one s mouth if one attempts to talk or eat fail to meet minimum standards, and a dentist responsible for such dentures has failed to meet the miniumum standards of performance in diagnosis and treatment when meastired against generally prevailing peer performance.
Respondent's contention that he is not responsible for the unsuccessful dentures constructed for White and for Sudick because others were also involved in the construction and fitting of those dentures is wholly without merit. Others may also be responsible. However, Respondent was one of the two equal owners of the business known as North Dade Dental Offices; Respondent personally contracted with White and with Sudick to fabricate dentures for them; Respondent signed the laboratory authorization forms and issued instructions for the fabrication of those dentures; and Respondent personally participated in the fabrication and/or adjustment made to those dentures. No responsibility for any portion of the fabrication or fitting of either White's dentures or of Sudick's dentures can be assessed against any other person working at the North Dade Dental Offices, since there is no evidence as to what procedure may have been performed by any other person and since Respondent admits that his office records on both patients are both incomplete and erroneous. Each of those patients entered into an agreement with Respondent whereby he agreed to provide dentures in exchange for the fee he quoted to those patients. He commenced the treatment of each of those patients when he agreed to fabricate the dentures and authorized the
laboratory to do so, and Respondent was involved in the delivery of the dentures to those patients upon their completion (to White, when he finally told her to drink whiskey to ease the pain caused by the dentures; and to Sudick, when he agreed to make her a second new set of dentures when the first set made for her at North Dade Dental Offices was also unsuccessful). Even if Respondent were not the sole treating dentist, he was at least the primary treating dentist, and there is no evidence even offered to show when Respondent might have ceased being the primary treating dentist and someone else employed at North Dade Dental Offices may have taken over that responsibility. Petitioner has met its burden of proving that Respondent violated Section 466.028(1)(y), Florida Statutes (1981), as alleged in the Administrative Complaint.
Section 466.018, Florida Statutes (1981), provides as follows:
Each patient shall have a dentist of record. The dentist of record shall remain primarily responsible for all dental treatment on such patient regardless of whether the treatment is rendered by the dentist himself or by another dentist, dental hygienist, or dental auxiliary ren- dering such treatment in conjunction with, at the direction or request of, or under the supervision of such dentist of record. The purposes of this section are to dssign primary responsibility for each patient to one dentist in a multidentist prac- tice of any nature and to assign primary responsibility to the den- tist for treatment rendered by a dental hygienist or auxiliary under his supervision. . . .
Respondent is charged with violating this statutory mandate in Count Six (as to Roza White) and in Count Nine (as to Lydia Sudick) and therefore violating Section 466.028(1)(i), Florida Statutes (1981)(failing to perform any statutory or legal obligation placed upon a licensee), and Section 466.028(1)(bb), Florida Statutes (1981)(which prohibits a licensee from violating any provision contained in Chapter 466). Since Respondent's own office records fail to identify a dentist of record, and since Respondent testified that no dentist of record can be identified by reviewing those records, and since Respondent testified that a patient coming to North Dade Dental Offices could have many dentists of record since he considered that whoever performed the next step in a procedure would become the dentist of record for that step in the procedure, Petitioner has easily met its burden of proving that Respondent has committed the violations charged in Counts Six and Nine of the Administrative Complaint.
Count Eight charges Respondent with violating Sections 466.028(1)(g) and (aa), Florida Statutes (1981), which prohibit a licensee from:
(g) Aiding, assisting, procuring, or advising any unlicensed person to practice dentistry or dental
hygiene contrary to this chapter or to a rule of the departmeni or the board.
(aa) Delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified by training, experi- ence, or licensure to perform them.
Petitioner has failed to meet its burden of proving Respondent guilty of the charges contained in Count Eight of the Administra- tive Complaint. The only evidence offered in support of those allegations is that some females performed some services during some of Lydia Sudick's visits to Respondent, and that during those material time periods no female dentists were employed by or associated with North Dade Dental Offices. Since there is no competent substantial evidence to show what acts were performed by females or what licenses might have been held by those unidentified females, Count Eight of the Administrative Complaint must be dismissed.
Count Ten charges Respondent with violating Sections 466.028(1)(i)(failing to perform any statutory or legal obligation placed upon a licensee) and 466.028(1)(bb)(which pro- hibits a licensee from violating any provision contained in Chapter 466), Florida Statutes (1981), by failing to comply with Section 466.016, Florida Statutes (1981), which provides:
Every practitioner of dentistry or dental hygiene within the meaning of this chapter shall post and keep conspicuously displayed his license in the office wherein he practices, in plain sight of his patients. Any dentist or dental hygienist who prac- tices at more than one location shall be required to display a copy of his
license in each office where he practices.
When Petitioner's investigator went to North Dade Dental Offices and was unable to find licenses for the dental personnel present there, he was advised that the licenses were not there because they were being laminated or plaqued.
Subsequently, that same investigator saw Respondent's license at another location, and the license was not laminated or plaqued. Accordingly, Petitioner has presented uncontroverted evidence that the license of Respondent (and other practitioners of dentistry or dental hygiene working at North Dade Dental Offices that date) was not on display in plain sight of patients, and Respondent therefore has violated those statutory prohibitions alleged in Count Ten of the Administrative Complaint herein.
Count Eleven of the Administrative Complaint charges Respondent with violating Section 466.019, Florida Statutes (1981), which is entitled "Advertising by dentists." Petitioner has met its burden of proving that the advertisements in question fail to contain the name, address, and telephone number of the dentists and of other dentists with whom the dentist is associated [466.019(2), Florida Statutes (1981)]; failed to include a statement, no less prominent than the general text of the advertisement, that the fee advertised is the minimum fee to be charged for such service and that the actual fee may vary
depending upon the degree of complexity involved in a given case [466.019(2)(c), Florida Statutes (1981)]; advertised fees for other than routine dental services [466.019(3), Florida Statutes (1981)], thereby constituting violations of Sections 466.028(1)(d) advertising goods or services in a manner which is fraudulent, false, deceptive, or misleading in form or content or contrary to Section 466.019 or rules of the Board adopted pursuant thereto 466.028(1)(1)(making deceptive, untrue, or fraudulent representations in the practice of dentistry); 466.028(1)(u)(fraud, deceit, or misconduct in the practice of dentistry or dental hygiene); and 466.028(1)(bb)(violating Chapter
466 or any rule promulgated pursuant thereto), Florida Statutes (1981). Count Eleven further charges Respondent with violating rules promulgated by the Board pursuant to Chapter 466, Florida Statutes (1981), specifically Sections 2IG- 4.01(2) , (3)(c), and (7), Florida Administrative Code, which also require the providing of the name, address, and telephone number of all dentists associated with the dentist advertising; which also require that a statement no less prominent than the general text disclosing that the advertised fee is the minimum fee and that the actual fee may vary be included in all advertisements containing listings of fees; and delineate routine dental services that may be advertised, which listing does not include fillings and crowns as routine dental services. The advertisements clearly reveal both statutory and rule violations. Respondent's testimony that he does not recall seeing the specific ads in question in advance of publication may be true; however, that testimony does not absolve him from responsibility where the evidence is uncontroverted that each ad was approved in advance by either Respondent or his partner, that each ad ran more than one time, and that each ad was personally delivered to the North Dade Dental Offices within a day or two after publication. Respondent's testimony that he rarely looked at his ads appearing in the newspapers affords him no defense. He and his partner were equal owners of North Dade Dental Offices, his professional association paid for the advertisement, and the legal duty imposed upon Respondent is to avoid publishing false and deceptive ads rather than avoid reading them.
A primary thrust of Respondent's defense is that he and his partner in the North Dade Dental Offices have a "stormy relationship" and have always had a stormy relationship and continue to have a stormy relationship, and therefore Respondent should not be held responsible for licenses not being displayed, records being incomplete and inaccurate (or even falsified, as alleged by Respondent regarding his own records), or false, fraudulent, deceptive, and misleading advertisements being carried in the local newspaper every Sunday over a year's period of time. Respondent further contends that his "stormy relationship" with his partner resulted in his failure to be involved in the
