STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4159

)

1. P. DENTAL LAB, )

   )

   Respondent. )

   )

   
   

   RECOMMENDED ORDER

   
   

   Pursuant to notice, this matter came on for hearing in Crestview, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on November 28, 1990.

   
   

   APPEARANCES

   
   

   For Petitioner: Albert Peacock, Esquire

   Department of Professional Regulation 1940 North Monroe Street

   Suite 60

   Tallahassee, Florida 32399-1550 For Respondent: Wendell Cook, pro se

   STATEMENT OF THE ISSUES

   
   

   Whether Respondent's dental laboratory license should be suspended, revoked or otherwise disciplined.

   
   

   PRELIMINARY STATEMENT

   
   

   On January 18, 1990, Petitioner, Department of Professional Regulation, filed an Administrative Complaint, alleging that Respondent, W.P. Dental Lab, had violated the provisions of Chapter 466, Florida Statutes. Specifically, the Administrative Complaint alleged that Respondent's license should be disciplined for violating Section 466.028(1)(v), Florida Statutes, by failing to maintain his laboratory in a sanitary condition. The Respondent disputed the allegations of the Administrative Complaint and requested a formal administrative hearing.

   The Administrative Complaint and Respondent's request were forwarded to the Division of Administrative Hearings.

   
   

   At the formal hearing, Petitioner presented the testimony of three witnesses and offered four exhibits into evidence. The Respondent testified in his own behalf and called two witnesses. Respondent did not offer any exhibits into evidence.

   Petitioner and Respondent filed Proposed Recommended Orders on December 17, 1990, and December 4, 1990, respectively. The parties' proposed findings of fact have been considered and utilized in the preparation of this Recommended Order except where the parties' proposals were not shown by the evidence or were irrelevant, immaterial or cummulative. Specific rulings on the parties' proposed findings of fact are contained in the Appendix to this Recommended Order.

   
   

   FINDINGS OF FACT

   
   

   1. Respondent, W.P. Dental Lab, is a licensed dental laboratory in the State of Florida, holding license number DL 000936. Wendell Cook is co-owner of and operates W.P. Dental Lab. The lab is located in the backyard of Mr. Cook's residence, at 457 Cain Street, Crestview, Florida.

      
      

   2. On November 8, 1989, and February 8, 1990, the lab was inspected by DPR Investigator, Charles Wheelahan. Joan Ziel, Petitioner's expert on laboratory sanitation, accompanied Mr. Wheelahan on the February 8th inspection. The laboratory was also inspected by Doug Sims of HRS, Okaloosa County Health Unit, on November 14, 1989, and November 27, 1990. Doug Sims is also an expert in laboratory sanitation.

      
      

   3. The inspections of November 8 and 14, 1989, and February 8, 1990, revealed the following:

      
      

      1. The dental lab is operated out of a small dilapidated travel trailer. Window panes located on the front of the trailer were broken and all the window screens needed replacement. Insects and dust have ready access to the interior of the trailer. The linoleum flooring inside the trailer was not secured firmly to the floor and there were some holes in the floor.

         
         

      2. Adjacent to the trailer is Mr. Cook's aviary containing several exotic birds. The aviary is within 5 to 10 feet of the laboratory's entrance. Additionally, a large dog was allowed to run freely in the backyard where the laboratory is located. The presence of these animals adds to the already dusty conditions of the backyard.

         
         

      3. Water is supplied to the laboratory by an ordinary garden hose. There is no potable water connection and no backflow preventor. There was no running hot water in the facility. The trailer has only one sink. The sink is used for everything including sanitation and waste disposal. Waste water emptied onto the ground and was not connected to a sewer. There are no bathroom facilities in the trailer. There are bathroom facilities located in Mr. Cook's house.

         
         

      4. There was a large accumulation of trash and rubbish around the outside of the lab. Many insect and rodent harborages were present.

         
         

      5. There is no exhaust mechanism for the volume of dust particles generated by the dental lab work. The counter, chair, and floor surfaces in the facility were covered with a thick coating of bacteria harboring dust.

         
         

      6. Sterilization, sanitation, and disinfectant procedures appeared to be impossible within the trailer's environment, and

         
         

      7. Dental lab equipment was outdated, dirty, and rusty.

   4. The lack of a bathroom facility and the existence of only one sink create a condition in which contaminated items cannot be disposed of separate from uncontaminated items. Additionally, the lack of a bathroom facility and the existence of only one sink makes it impossible for an operator to cleanse either himself or his equipment after touching contaminated items and before handling uncontaminated items. Contamination control is important in the dental laboratory setting because the technician handles impressions form dental patients which have residue from the patient's saliva on them. The potential for transmission of disease is apparent.

      
      

   5. The inadequate exhaust mechanism allows bacteria-harboring dust to coat everything in the facility. Therefore, appropriate sterilization, sanitation and disinfectant procedures are almost impossible without an exhaust system that will handle the dust particles generated by the dental equipment. Additionally, the proximity of the bird aviary and dog creates a condition where bird and dog dander, mites, and bird droppings can easily access the trailer environment when adequate screening is not present. The possibility that airborne contaminants and contaminants in the dust can ultimately come in contact with a patient if proper sterile procedures or sanitary or disinfectant procedures are not followed exists and poses a real danger to the public.

      
      

   6. The only methods of sterilization used by Mr. Cook in his lab work consists of boiling the dental product in a pressure cooker and then placing the product in a plastic bag with an amount of listerine. Such sterilization procedures are not considered adequate infection control methods. The failure to use proper disinfectants and sterilization procedures constitutes a health hazard since such disinfectants are the only method which eliminates bacteria and prevents the potential for bacteria to be transmitted to someone else.

      
      

   7. The inspections of W.P. Dental Lab in November, 1989, and February, 1990, clearly demonstrated that W. P. Dental Lab was not maintained in a sanitary condition.

      
      

   8. An inspection of W.P. Dental Lab on November 27, 1990, one year after the first inspection, revealed that Mr. Cook had made some minor repairs to the trailer. However, the facility still falls significantly below the common standard for reasonable sanitation. Among other things, there was still no hot water under pressure, the boiler, stove and pressure cooker were all in need of cleaning, there was still no restroom facility, several pieces of the dental equipment were rusty making cleaning difficult and the vinyl flooring had been stapled together making cleaning very difficult. Additionally, the presence of animals in the yard continues to draw flies which are a carrier of bacteria. Also, numerous brushes and other sanding devices used in dental laboratory work were caked with powder. A view of the laboratory at the conclusion of the hearing demonstrated that the surface areas of the lab had been cleaned. Grit could still be felt on the surfaces of the counter tops and there were obvious signs of mildew and a distinct musty odor. In essence, the laboratory was clean, but not sanitary.

      
      

   9. Of greatest concern in this case, was the obvious lack of knowledge on Mr. Cook's part of current methods of sanitation including the appropriate products, equipment and procedures. Such products and equipment are presently available and in use in the community. Because of this lack of knowledge, the laboratory poses a potentially dangerous health hazard to the public with no assurance that the hazard will be corrected or eliminated. Therefore, Respondent's license should be revoked.

      CONCLUSIONS OF LAW

      
      

   10. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Sections 120.57, Florida Statutes.

       
       

   11. Section 466.031(1), Florida Statutes, defines a dental laboratory as any person, firm, or corporation who performs for a fee of any kind, gratuitously, or otherwise, directly or through an agent or employee, by any means or method, or who in any way supplies or manufactures artificial substitutes for the natural teeth, or who furnishes, supplies, constructs, or reproduces or repairs any prosthetic denture, bridge, or appliance to be worn in the human mouth or who in any way holds itself out as a dental laboratory.

       
       

   12. Section 466.037, Florida Statutes, authorizes the Department of Professional Regulation to suspend or revoke the certificate of any dental laboratory registered under Section 466.032, Florida Statutes, for failing to comply with the provisions of this chapter or rules adopted by the department under this chapter.

       
       

   13. Section 466.028(1)((v), Florida Statutes, defines as an act subject to disciplinary action the failure to provide and maintain reasonable sanitary facilities and conditions.

       
       

   14. The Administrative Complaint contains a one count indictment charging the Respondent with failing to maintain a sanitary facility in violation of Section 466.028(1)(v), Florida Statutes. The Petitioner has the burden of proving by clear and convincing evidence the charge set forth in the Administrative Complaint. Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977); and State ex rel Vining v. Florida Real Estate Commission, 281 So.2d 487 (Fla. 1973).

       
       

   15. In this case, it has been clearly and convincingly established that the Respondent, W.P. Dental Lab, is a dental laboratory as defined by Florida Statutes and is subject to regulation by the Department of Professional Regulation. Additionally, Petitioner has established by clear and convincing evidence that the facility was not maintained in a sanitary condition under any reasonable standard. For approximately one year since the Respondent was notified that the facility was in a non-sanitary condition, there has been only a minimal effort to correct the conditions. The evidence strongly supports, as asserted by the Petitioner, that the facility one day before the hearing was still substantially below the common standard for reasonable sanitation and therefore has and still does violate the provisions of Section 466.028(1)(v), Florida Statutes. An on-site visit at the request of the Respondent forces the conclusion that the facility is not capable of being altered and improved so as to be in compliance with the requirement that the facility be maintained in a reasonable sanitary condition.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is recommended that the Department enter a Final Order finding that W.P. Dental Lab has violated Section 466.028(1)(v), and therefore, because of the severity of the conditions and the unlikelihood of the facility being able to be brought within compliance, revoking the Respondent's license.

RECOMMENDED in Tallahassee, Leon County, Florida, this 6th day of January, 1991.

DIANE CLEAVINGER

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4159

1. The facts contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 9, 10, 11, 12, 13, 14 and 15 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material.

1. The facts contained in paragraph 8 of Petitioner's Proposed Findings of Fact are subordinate.

   
   

2. The facts contained in paragraph 3, 5, 6 and 7 of Respondent's Proposed Findings of Fact are subordinate.

   
   

3. The facts contained in the first sentence of paragraph 1 of Respondent's Proposed Findings of Fact are subordinate. The remainder of the paragraph was not shown by the evidence.

   
   

4. The facts contained in paragraph 4 of Respondent's Proposed Findings of Fact are immaterial.

   
   

5. The facts contained in paragraphs 2, 8 and 9 of Respondent's Proposed Findings of Fact were not shown by the evidence.

COPIES FURNISHED:

Albert Peacock, Esquire Department of Professional

Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750

William Buckhalt Executive Director

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750

Kenneth E. Easley General Counsel

Department of Professional Regulation

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0750 Wendell Cook

Docket for Case No: 90-004159

Orders for Case No: 90-004159