STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY,)

)

Petitioner, )

)

vs. ) CASE NO. 90-5723

)

) EDWARD JOSEPH, JR., D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on September 16-18, 1991, and October 24, 1991, in Miami, Florida.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

Tracy Hartman, Esquire

Department of Professional Regulation Northwood Centre

1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Michael J. McNerney, Esquire

Brinkley, McNerney, Morgan and Soloman Post Office Box 522

Fort Lauderdale, Florida 33302-0522 STATEMENT OF THE ISSUES

At issue in this proceeding is whether respondent, a licensed dentist in the State of Florida, did, during the course of treatment, utter offensive remarks to patients and induce or attempt to induce sexual activity with patients, such that he is guilty of sexual or other misconduct in the practice of dentistry.

PRELIMINARY STATEMENT

By administrative complaint dated June 20, 1990, petitioner charged that respondent had uttered offensive remarks to, or induced or attempted to induce sexual activity with, five separate patients (Counts I through V of the Administrative Complaint), and further charged that such conduct constituted repeat violations of Florida law as proscribed by Section 466.028(1)(bb), Florida Statutes (Count VI of the Administrative Complaint). At hearing,

petitioner dismissed Count I of the Administrative Complaint dealing with the patient designated as C.B. and those provisions of Count VI that were related to said patient.

Respondent filed an election of rights which disputed the facts upon which the agency proposed to take action, and requested a formal hearing. Thereafter, on September 7, 1990, the matter was referred to the Division of Administrative Hearings to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes.

At hearing, petitioner called as witnesses: E.B., M.J.M., B.L., and F.R., the patients referenced in Counts II through V of the Administrative Complaint, as well as Susan Dombrowsky, William Lee Hearn, and Manuel Alverez. The respondent testified on his own behalf and offered the testimony of the following additional witnesses: Margaret Kapinska, Ernestine Funk, John Westine, Katherine O'Neal, Judy Paz, Marie Mauder, Kristine Snellgrove, Christy Kelley Jenkins, Irene Lofberg, and Jerry Zimmerman. Petitioner's exhibits 1-5,

7 and 8, and respondent's exhibits 1-9, were received into evidence.

The last volume of the transcript of hearing was filed November 12, 1991, and the parties were granted leave, at their request, until December 2, 1991, to file proposed findings of fact. Consequently, the parties waived the requirement that a recommended order be rendered within thirty days after the transcript is filed. Rule 22I-6.031, Florida Administrative Code. The parties' proposals have been addressed in the appendix to this recommended order.

FINDINGS OF FACT

1. Petitioner, Department of Professional Regulation (Department), is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute administrative complaints relating to the practice of dentistry pursuant to the laws of the State of Florida, in particular Section 20.30, Florida Statutes, Chapters 120, 455, and 466, Florida Statutes, and the rules promulgated pursuant thereto.

   
   

2. Respondent, Edward A. Joseph, is now and was at all times material hereto a licensed dentist in the State of Florida, having been issued license number DN 0002556. The respondent's office address is 9345 N.E. Sixth Avenue, Miami Shores, Florida 33138.

   
   

3. The respondent has been licensed to practice dentistry in the State of Florida since 1959, and specializes in oral and maxillofacial surgery. He enjoys an excellent personal and professional reputation in the community and, but for the charges raised by the administrative complaint at issue in these proceedings, has not been the subject of any disciplinary proceeding.

   
   

   Patient E.B. (Count II of the Administrative Complaint)

   
   

4. On August 25, 1971, E.B., age 50, was referred to respondent for oral surgery. Following consultation on August 25, 1971, respondent scheduled E.B. for oral surgery, a root canal with apicoectomy on the lower left molar, at his office for August 27, 1971.

   
   

5. On August 27, 1971, E.B. was attended by respondent and Irene Lofberg, respondent's surgical assistant. After being seated in the dental chair, and in preparation for surgery, a pulsimeter was placed around the index finger of E.B.'s left hand, and a blood pressure cuff was placed on her upper right arm.

   Thereafter, the cord at the bottom of E.B.'s blouse was loosened, her blouse unbuttoned, and a precordial stethoscope taped under her left breast. The patient was then administered a general anesthetic, Brevital, intravenously and a local anesthetic, Xylocaine with epinephrine, and the surgical procedure was successfully performed. Ms. Lofberg was in attendance during the entire course of the surgical procedure.

   
   

6. Although the surgical procedure was apparently uneventful, E.B. did become hyperactive ("light") under the effects of the general anesthetic and subsequently experienced "hot flashes." As a consequence, following her surgery and removal to the recovery room, Ms. Lofberg did, at respondent's direction, administer cold towels to E.B.'s head and chest area to relieve her discomfort. Upon awakening, E.B. observed that her blouse was unbuttoned, although her brassiere was undisturbed, and that the respondent was seated on the recovery couch next to her, where he remained until she was ready to be discharged to her husband's care.

   
   

7. While E.B. was apparently disconcerted about finding her blouse unbuttoned in respondent's presence following her recovery from the anesthetic, she did not attach any impropriety to such condition. Indeed, under the circumstances of this case, it was necessary for her blouse to have been unbuttoned and loosened so the stethoscope could be attached to monitor E.B. during surgery, and no impropriety is attached to respondent's practice in this regard. Moreover, no impropriety is attached to any failure to re-button her blouse following surgery since E.B. was being administered cold towels by

   Ms. Lofberg to relieve her discomfort, and there is no proof that respondent acted in any manner that could be characterized as unprofessional on this occasion. 1/

   
   

8. Following her surgery, E.B. was treated by respondent on two occasions, September 1 and 3, 1971, without incident. Thereafter, on at least three dates between September 8, 1971, and December 27, 1971, E.B. was treated by respondent without an assistant present and during the course of each visit, respondent's groin area would push against her hip, and she could feel respondent achieve an erection as he aggressively worked in her mouth. E.B. found such contact, which was persistent and repetitive, to be offensive and unnerving. Respondent did not, however, rub against E.B. in a provocative manner, or otherwise act, by word or deed, in an improper fashion. 2/

   
   

9. While respondent's groin area did rest against E.B.'s hip at times during his courses of treatment, respondent averred that such was a consequence of the exigencies of the situation, and was not sexually motivated. In this regard, the proof demonstrates that E.B. was a difficult patient who, notwithstanding the pain involved, refused any anesthetic during the course of these treatments. As a consequence of the pain she experienced during treatment, E.B. would move her head and upper body to the left and away from respondent, who was working on her right, such that respondent was compelled to lean across her to continue his work. When so extended, respondent's groin area pressed against E.B.'s right hip. Accordingly, respondent contends there was no impropriety in this contact.

   
   

10. While there may well be circumstances, such as those addressed by respondent, that would bring his groin area in contact with a patient's hip and would not, under such circumstances, be improper, such is not the case where the dentist repeatedly, and on three separate days, presses his erect penis against a patient's body. Such conduct is patently offensive and improper. 3/

    Patient M.J.M. (Count III of the Administrative Complaint)

    
    

11. On June 6, 1989, M.J.M., age 36, had her first visit to respondent's office. Following consultation with respondent on this date, M.J.M. was scheduled for oral surgery, the removal of her upper right wisdom tooth and an impacted lower right cuspid, at his office for June 9, 1989.

    
    

12. On June 9, 1989, M.J.M. was attended by respondent and Margaret Kapinska, who was respondent's surgical assistant as well as a friend of M.J.M.'s. After M.J.M. was seated in the dental chair, but prior to the administration of any anesthetic, respondent, while speaking with her and in the presence of Ms. Kapinska, brushed her hair aside and gave her a kiss on the forehead. Such conduct was, according to respondent, intended to quell any anxiety M.J.M. may have felt regarding the upcoming procedures, and, although she felt no anxiety at the time, was so interpreted by M.J.M. M.J.M. was thereafter anesthetized and the surgical procedure was successfully performed. Ms. Kapinska was in attendance during the entire course of the surgical procedures, and then took M.J.M. back to her (Ms. Kapinska's) residence for her recovery after surgery.

    
    

13. On June 16, 1989, M.J.M. had an appointment with respondent as a follow-up to her recent surgery. Such appointment occurred at or about 4:45 p.m., and Ms. Kapinska was not present in the office that day; however, a temporary receptionist did admit M.J.M. and seat her in the dental chair, although she did not remain in the room during M.J.M.'s treatment. During the course of such visit the following occurred: while M.J.M. was in the dental chair, respondent was discussing with her the limitations on the foods she could eat until she had healed from the surgery and stated "I'd ask to out to dinner but I don't know what you could eat," or words to like effect. At hearing, respondent averred that such comment was intended as a joke and it was, although considered an odd statement, initially so interpreted by M.J.M. However, following such statement and the completion of his work on M.J.M. that day, respondent seated himself on a stool at her right side and began to discuss M.J.M.'s dental problems. Then, according to M.J.M., whose testimony is credited, as she turned herself sideways in the dental chair in preparation for rising to leave, respondent positioned the stool on which he was seated in such a way that her right knee was up against his crotch. M.J.M. attempted to withdraw her knee, but since the back of her leg was close to the edge of the chair she was unable to withdraw very far. Then a few minutes later respondent rose, still speaking to M.J.M. regarding her dental problems, and seated himself on the dental chair at her left with his right leg against her leg. M.J.M. attempted to move to the right, away from respondent, but the back of the dental chair prevented such movement. A few minutes later, their conversation apparently ended, respondent went to his office, and M.J.M. went to the receptionist and inquired as to how much her bill for the surgery would be. The receptionist then went to inquire of respondent and returned to inform M.J.M. that there would be no charge. M.J.M. found that unusual and went to respondent's office to inquire directly of him and to which inquiry he replied "Nothing; I'll take it out in trade." At hearing, respondent averred that such comment was a joke; however, considering his prior conduct that day and his conduct on subsequent visits, respondent's testimony is not credited in this regard.

    
    

14. On June 22, 1989, at about 4:15 p.m., M.J.M. had another follow-up visit with respondent. Again, Ms. Kapinska was not in the office, and the receptionist seated M.J.M. and then left her to be treated by respondent. Shortly after respondent entered the room, while standing to M.J.M.'s left, he

    ran his hand along her left side and touched the left side of her breast, and then took her hips in his hands and moved them from side to side, without explanation. At that time, there was no reasonable basis for respondent to have had any physical contact with M.J.M. Though unusual conduct, M.J.M. said nothing to respondent, she being surprised and embarrassed by his actions.

    Thereafter, following his examination, respondent noticed some "saline pockets" and expressed his desire to cleanup any possible infection that was there.

    Accordingly, although it was now approximately 5:30 p.m. and all his staff had left for the day, respondent sedated M.J.M. with nitrous oxide, and performed what procedures were necessary. Upon coming out of the anesthesia, M.J.M. recalls respondent commenting about her earring being out of her ear and that in the process of looking for it respondent lifted the front of her T-shirt up and, looking down it, jiggled it. M.J.M. told him to stop, that she'd take care of it. Finally, at about 7:30 p.m., M.J.M., being recovered from the anesthetic, left respondent's office.

    
    

15. When returning home from her visit of June 22, 1989, M.J.M. felt very uncomfortable about her experience with respondent, and called Ms. Kapinska and advised her of such feelings. Accordingly, she changed her next appointment to coincide with a time Ms. Kapinska would be in respondent's office.

    
    

16. On June 29, 1989, M.J.M. last visited respondent's office. At that time, she accused respondent of having made unwanted physical advances toward her and told him that she wanted him to treat her in a professional manner. Thereafter, while using an ultrasonic on her teeth, water ran down the middle of M.J.M.'s chest, and respondent patted it dry. Respondent's action in patting the water dry was most probably warranted, but not appreciated by M.J.M. On leaving the office that day, respondent winked at M.J.M., and said good-bye "in a provocative kind of way."

    
    

17. Overall, the proof demonstrates that respondent's conduct toward

    M.J.M. constituted sexual misconduct in the practice of dentistry, and that his efforts to foist himself upon her were offensive and improper.

    
    

    Patient B.L. (Count IV of the Administrative Complaint)

    
    

18. On August 28, 1989, B.L., age 28, had her first visit to respondent's office. Following consultation with respondent on that date, B.L. was scheduled for oral surgery, the removal of a broken tooth, at his office for August 31, 1989.

    
    

19. On August 31, 1989, B.L. was attended by respondent and Ms. Kapinska. After being seated in the dental chair, and in preparation for surgery, a blood pressure cuff was placed on her upper right arm, and EKG leads were attached above her right breast and below her left and right breast. The patient was then administered IV sedation, Surital; a local anesthetic, Xylocaine with epinephrine; and Nitrous Oxide and Oxygen. The surgery was successful and uneventful. Thereafter, B.L. saw respondent on September 9, 1989, to have her sutures removed, and on September 14, 1989, for a follow-up visit. Each of these appointments were uneventful.

    
    

20. On November 1, 1989, B.L. visited respondent complaining of pain she was experiencing in another tooth. Upon consultation, B.L. was scheduled for oral surgery, a root canal with apicoectomy, at his office for November 8, 1989.

21. On November 8, 1989, B.L. was again attended by respondent and Ms. Kapinska, and the blood pressure cuff and EKG leads were attached as they had been during B.L.'s first surgery. The patient was again administered IV sedation, Surital, and a local anesthetic, Xylocaine with epinephrine, but no Nitrous Oxide or Oxygen. The surgery was successful, although B.L. did become light during the procedure and had to be restrained. Thereafter, B.L. saw respondent on November 14, 1989, to have her sutures removed, and on November 22, 1989, for a follow-up visit. Each of these appointments were uneventful.

    
    

22. On December 6, 1989, B.L. visited respondent's office for the purpose of having the temporary filling in the tooth upon which the root canal had been performed removed, and replaced with a permanent filling. B.L. was admitted by Ms. Kapinska who seated her in the dental chair, and who laid out the instruments respondent would need.

    
    

23. During the course of treatment on December 6, 1989, B.L. became very nervous while respondent was removing the temporary filling, and despite reassurances from respondent that there would be no pain, because there was no nerve in the tooth, continued to express apprehension. In the face of such apprehension, respondent offered to give her something to ease her anxiety. Following this point, the proof is contradictory as to what occurred.

    
    

24. According to B.L., respondent told her he would give her some Valium to help her relax, and thereafter injected her in the left arm with a syringe that purported to contain Valium. Following such injection, B.L. fell into a deep sleep and when she began to awaken felt the respondent rubbing the inside of her mouth with his left hand and rubbing her breasts and vagina with his other hand. B.L. further averred that she observed respondent take her hand, put it on the outside of his pants, and rub it around on top of his erect penis. Then, according to B.L., respondent walked to the foot of the chair, lifted her T-shirt, and stared underneath. Respondent then moved to her left, removed the syringe, threw it in the garbage can, and left the room. Two days following her appointment with respondent, B.L. went to the Jackson Memorial Hospital Rape Treatment Center, where a sample of her blood and urine was taken. Subsequent analyses of those samples found evidence of Valium in concentrations consistent with it having been introduced into B.L.'s body on or about December 6, 1989, as well as the presence of phentermine, an appetite suppressor. B.L. concedes she was taking an appetite suppressor at or about the date in question, which would account for the presence of phentermine in her system, but denies having taken any Valium during the year 1989. 4/

    
    

25. Notwithstanding B.L.'s denial, the proof is not convincing that she was administered Valium at respondent's office on December 6, 1989, or that anything untoward occurred to her during her visit on that date. 5/ Contrasted with B.L.'s recollections, the proof demonstrates that B.L. was very apprehensive regarding her treatment that day, and came close to fainting prior to treatment, which resulted in the administration of oxygen. Once settled down, B.L. was given a local anesthetic, Xylocaine with epinephrine, following which the treatment was performed without incident. Ms. Kapinska was in attendance until after the local anesthetic was administered, following which she returned to the room occasionally or was at her desk which, although located outside the room in which B.L. was seated, was within earshot and close proximity. At no time while respondent treated B.L. that day was the door to the room closed, and Ms. Kapinska could have seen or heard what transpired therein without difficulty. In this regard, she neither saw nor heard anything

    out of the ordinary, and respondent's denial of having committed any of the improprieties of which B.L. has accused him is, under the circumstances, credited.

    
    

26. While the proof is not convincing that B.L. suffered any improprieties at respondent's hand on December 6, 1989, such does not compel the conclusion that her recollection of the events of that date is a simple fabrication. Rather, the more likely explanation, based on the expert opinions rendered in this case, is that the presence of Valium and phentermine (an "upper and downer") in her system at that time or her having suffered some depravation of oxygen to the brain and having almost fainted, or some combination thereof, may have caused her to fantasize or hallucinate. Such is a more reasonable explanation of B.L.'s recollections, given the circumstances of this case, than respondent having committed the sexual improprieties B.L. ascribes to him.

    
    

    Patient F.R. (Count V of the Administrative Complaint)

    
    

27. On September 12, 1988, F.R., age 42, was referred to respondent's office on an emergency basis for the removal of a wisdom tooth. After consultation with F.R., including the taking and examination of x-rays, respondent scheduled her for immediate oral surgery.

    
    

28. During oral surgery on September 12, 1988, F.R. was attended by respondent and Ms. Kapinska. After being seated in the dental chair, and in preparation for surgery, a blood pressure cuff was placed on her upper right arm, and EKG leads were attached above her right breast and below her left and right breast. The patient was then administered VI sedation, Surital; a local anesthetic, Xylocaine with epinephrine; and Nitrous Oxide and Oxygen. The surgical procedure was successfully performed although, as discussed infra, F.R. reacted excitedly to the anesthetic. Ms. Kapinska was in attendance during the entire course of the surgical procedure and post surgery recovery.

    
    

29. At hearing, F.R. averred that following surgery her first recollection was being in the recovery room, and that while she was there respondent put his hand up her shorts and rubbed the upper part of her hip. In response, F.R. recalled she pushed his hand away, and went back to sleep. F.R. next recalled being back in the dental chair and feeling respondent's hand in her mouth massaging her tongue while pressing against her right breast with his erect penis. According to F.R., she then put her hand up to push him away, and respondent took her arm and put it around his back and moved closer. Then, when respondent apparently realized she was awaking, he ceased such activity, and shortly thereafter she got out of the chair and walked to the reception area to pay her bill.

    
    

30. Contrasted with F.R.'s recollection, the more persuasive proof fails to support the conclusion that respondent committed any impropriety upon F.R. Rather, it demonstrates that F.R. reacted in an excited fashion to the anesthetic, and exhibited body movements consistent with having experienced a sexual fantasy or dream while sedated. To control her, more anesthetic was administered, and Ms. Kapinska physically restrained F.R.'s left arm, which contained the needle for the IV sedation, and respondent restrained her right arm by placing it behind his back. Following surgery, F.R. was taken to the recovery room by respondent and Ms. Kapinska, where she remained until she had recovered from the anesthetic and respondent had cleaned the site of the extraction. At no time was F.R. returned to the dental chair after she was placed in the recovery room.

31. Expert testimony offered in this proceeding, and which stands uncontradicted, addressed the potential of IV sedation and Nitrous Oxide to produce dreams or fantasies that are later recalled with vivid recollection, and which the patient is convinced actually transpired. Considering the proof in this case, such is a more likely explanation of F.R.'s recollections than respondent having committed the sexual improprieties F.R. ascribes to him.

    
    

    CONCLUSIONS OF LAW

    
    

32. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Sections 120.57(1) and 120.60(7), Florida Statutes.

    
    

33. Where, as here, the Department proposes to take disciplinary action against a professional license, it bears the burden of proving its charges by clear and convincing evidence. See, Ferris v. Turlington, 510 So.2d 292 (Fla. 1987). The nature of clear and convincing evidence has been described in Slomowitz v. Walker, 429 So.2d 797, 800 (Fla. 4th DCA 1983), as follows:

    
    

    We therefore hold that clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witness must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.

    
    

    See also, Smith v. Department of Health and Rehabilitative Services, 522 So.2d 956 (Fla. 1st DCA 1988), which quotes with approval the above-quoted language from Slomowitz.

    
    

34. In establishing the foregoing standard, the court in Ferris v. Turlington, supra, noted at page 293:

    
    

    . . . the revocation of a professional license is of sufficient gravity and magnitude to warrant a standard of proof greater than a mere preponderance of the evidence . . . The correct standard for the revocation of a professional license such as that of a lawyer, real estate broker, or, as in this instance, a teacher, is that the evidence must be clear and convincing. We agree with the district court in Reid

    v. Florida Real Estate Commission, 188 So.2d 846, 851 (Fla. 2d DCA 1966), that:

    The power to revoke a license should be exercised with no less careful circum-spection than the original granting of it. And the penal sanctions should be directed only toward those who by their conduct have forfeited their right to the privilege, and then only upon clear and convincing proof of substantial causes justifying the forfeiture.

35. Pertinent to the charges regarding E.B. (Count II of the Administrative Complaint), Section 466.24(2)(a), Florida Statutes (1971), 6/ authorized the Board of Dentistry to suspend or revoke the license of any dentist when it was established that he was guilty of:

    
    

    1. Misconduct either in his business or in his personal affairs which would bring discredit upon the dental profession. . . .

       
       

       Such provision has been continuously re-enacted in substantially the same form, and in Section 466.028(1)(u), Florida Statutes (1989), authorizes the Board of Dentistry to take disciplinary action against the license of a dentist when it has been established that he is guilty of:

       
       

       (u)Fraud, deceit, or misconduct in the practice of dentistry. . . .

       
       

       Accordingly, respondent is subject to prosecution for his conduct toward E.B., which occurred in 1971. See, Solloway v. Department of Professional Regulation,

       421 So.2d 573 (Fla. 3d DCA 1982). ["An amendment and re-enactment of a statute constitutes a continuation of those provisions which are carried into the new act and permits a prosecution under the original act irrespective of its nominal repeal."]

       
       

36. "Misconduct" justifying suspension or revocation of a professional license was found by the court in Richardson v. Florida State Board of Dentistry, 326 So.2d 231, 233 (Fla. 1st DCA 1976), to include:

    
    

    . . . acts done in persistent disregard of the law, those which are malum in se . . ., and those which offend generally accepted standards of conduct within the profession, thereby jeopardizing the interests of the profession and the public it serves.

    
    

37. The provisions of Section 466.028(1)(u), Florida Statutes (1989), discussed supra, are likewise pertinent to the charges regarding M.J.M., B.L., and F.R. (Counts III, IV, and V of the Administrative Complaint), as well as the provisions of Section 466.208(1)(bb), Florida Statutes (1989), which authorize the Board of Dentistry to take disciplinary action against the license of a dentist when it has been established that he is guilty of:

    
    

    (bb)The violation or the repeated violation of this chapter. . . .

    
    

    And, Section 466.027, Florida Statutes (1989), which provides:

    
    

    The dentist-patient relationship is founded on mutual trust. Sexual misconduct in the practice of dentistry means violation of the dentist-patient relationship through which the dentist uses said relationship to induce or attempt to induce the patient to engage, or to engage or attempt to engage the patient, in sexual activity outside the scope of the practice or the scope of generally accepted examination or treatment of the patient. Sexual misconduct in the practice of dentistry is prohibited.

38. Here, the proof demonstrates that respondent's conduct in persistently and repetitively pressing his erect penis against E.B. during treatment constituted misconduct in the practice of dentistry as proscribed by Section 466.028(1)(u), Florida Statutes (1989), formerly Section 466.24(2)(a), Florida Statutes (1971). The proof further demonstrates that respondent's conduct toward M.J.M. constituted misconduct in the practice of dentistry as proscribed by Section 466.028(1)(u), Florida Statutes (1989), as well as sexual misconduct in the practice of dentistry as proscribed by section 466.027, Florida Statutes (1989), and therefore Section 466.028(1)(bb), Florida Statutes (1989). See Department of Professional Regulation v. Wagner, 405 So.2d 471 (Fla. 1st DCA 1981). The proof was not, however, convincing that respondent committed any offense upon the persons of B.L. and F.R.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be rendered finding respondent guilty of

Counts II, III and VI of the Administrative Complaint and not guilty of Counts

IV and V of the Administrative Complaint. It is further recommended that such final order imposes an administrative fine of $6,000.00 against respondent, and suspend his license for a term of two (2) years, followed by a term of probation of eight (8) years, subject to such terms and conditions as the board may specify, including the requirement that respondent be personally attended by a third person at all times he is treating female patients.

DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of January 1992.

WILLIAM J. KENDRICK

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 21st day of January 1992.

ENDNOTES

1/ While petitioner elicited the testimony from E.B. regarding her surgery of August 27, 1971, and her recovering to find her blouse unbuttoned in respondent's presence, it, likewise, apparently found no impropriety in respondent's conduct on this occasion since it proposed not findings of fact regarding this incident in its proposed recommended order.

2/ E.B. variously described respondent's physical state as a "climax," "erection," or his "male organ getting hard," and used such terms interchangeably. Based on the proof offered in this case, the most that can be

concluded is that E.B. felt respondent's erection when he leaned against her hip during treatment, but there is no persuasive proof that he ever achieved an orgasm as a consequence of such contact.

3/ In evaluating the charges brought against respondent, concerning E.B., M.J.M., B.L., and F.R., the testimony of Manuel Alvarez, an expert in psychology with emphasis on sexually deviant behavior, has not been relied upon, but, rather, has been rejected as unpersuasive for a number of reasons. First, Dr.

Alvarez rendered an opinion that assuming the truth of the matters testified to by E.B., M.J.M., B.L., and F.R., in their deposition that he would have "grave concern" of a serious paraphilia of sexual deviancies. The depositions of E.B., M.J.M., B.L., and F.R., which form the basis of Dr. Alverez's opinion, are not of record in this proceeding. Second, according to Dr. Alvarez, paraphilias occur in clusters and, based on the depositions of the four patients, he found evidence that respondent may exhibit three disorders: sexual sadism, voyeurism and flotteurism (fondling). Sexual sadism, according to Dr. Alvarez, increases in frequency with age, and voyeurism and flotteurism decrease with age. Here, the only evidence of sexual sadism Dr. Alvarez found in the depositions related to E.B., which occurred over 20 years ago, while voyeurism and flotteurism related to M.J.M., B.L., and F.R., which supposedly occurred in 1988 and 1989.

Accordingly, based on Dr. Alvarez's own testimony, the assumed facts of this care are not consistent with respondent suffering a paraphilia of sexual deviancies. Third, the testimony of the patients in this proceeding has not been found to be factually accurate in all respects. Finally, Dr. Alvarez rendered no opinion that respondent suffered a paraphilia of sexual deviancies, but simply expressed "concerns." Overall, Dr. Alvarez's testimony is unpersuasive and of no value in resolving the issues in this proceeding.

4/ B.L. conceded she had taken Valium in the past couple of years preceding 1989, but denied having done so in the year 1989. She further admitted to having taken Valium that was not prescribed, but given to her by friends.

5/ In reaching this conclusion, consideration has been given to the matters addressed in paragraph 25 as well as the proof which demonstrates that the Valium could not have reasonably been administered to B.L. in the manner she described.

6/ Count II of the Administrative Complaint, which related to the charges concerning E.B., concluded that the factual allegations constituted a violation of Section 466.028(1)(bb), Florida Statutes (1989), because such actions on respondent's part violated the provisions of Section 466.028(1)(u). These statutory provisions codified in the 1989 Florida Statutes are identical to those codified in the 1987 Florida Statutes, and are certainly pertinent to the charges regarding M.J.M., B.L., and F.R. However, the charges relating to E.B. occurred in 1971, and the Florida Statutes in effect at that time contained no provision comparable to Section 466.027, Florida Statutes (1989), and therefore no basis upon which to predicate a charge against respondent for a violation of Section 466.028(1)(bb), Florida Statutes (1989), or its 1971 counterpart Section 466.24(3)(n), Florida Statutes (1971). The only provisions of the 1971 Florida Statutes comparable to the provisions of Section 466.028(1)(u), Florida Statutes (1989), of which respondent here stands charged with violating, are the provisions of Section 466.24(3)(a), Florida Statutes (1971). Petitioner's motion to amend to address the appropriate statutory authority regarding the charges relating to E.B. was granted. See, Solloway v. Department of Professional Regulation, 421 So.2d 573 (Fla. 3d DCA 1982), ["An amendment and

re-enactment of a statute constitutes a continuation of those provisions which are carried into the new act and permits a prosecution under the original act irrespective of its normal repeal."]

APPENDIX TO RECOMMENDED ORDER

The Department's proposed findings of fact are addressed as follows: 1.Addressed in paragraph 1.

2.Addressed in paragraph 8 and footnote 2. 3.Addressed in paragraphs 11-14.

4.Addressed in paragraphs 18-26. 5.Addressed in paragraphs 27-31.

6.Rejected as unpersuasive. See footnote 3.

The respondent's proposed findings of fact are addressed as follows: 1.Addressed in paragraph 1.

2.Addressed in paragraph 2.

3-5.Addressed in paragraph 3, otherwise subordinate or unnecessary detail.

6 and 7.Addressed in detail with regard to each patient. As a general finding of fact, paragraphs 6 and 7 lend nothing to the resolution of the issues raised and are therefore rejected.

8-14.Addressed in paragraphs 3, 26 and 31. Otherwise, such proposals constitute a recitation of testimony or unnecessary detail.

15.Addressed in the preliminary statement.

16 and 17.Rejected as not a finding of fact.

18-27.Addressed in paragraphs 4-10. Otherwise, rejected as comment on the evidence, unnecessary detail, or contrary to the facts as found.

28 and 29.Rejected as not a finding of fact.

30-33.Addressed in paragraphs 11-17. Otherwise, rejected as comment on the evidence, unnecessary detail, or contrary to the facts as found.

34 and 35.Rejected as not a finding of fact.

36-41.Addressed in paragraphs 18-26. Otherwise, rejected as comment on the evidence, unnecessary detail, or contrary to the facts as found.

42 and 43.Rejected as not a finding of fact.

44-48.Addressed in paragraphs 27-31. Otherwise, rejected as comment on the evidence, unnecessary detail, or contrary to the facts as found.

COPIES FURNISHED:

Albert Peacock, Esquire Tracy Hartman, Esquire Department of Professional

Regulation Northwood Centre

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

Michael J. McNerney, Esquire Brinkley, McNerney, Morgan

and Soloman

Post Office Box 522

Fort Lauderdale, Florida 33302-0522

William Buckhalt Executive Director Board of Dentistry

Department of Professional Regulation

1940 North Monroe Street, Ste 60

Tallahassee, Florida 32399-0792

Jack McRay General Counsel

Department of Professional Regulation

1940 North Monroe Street, Ste 60

Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

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

AGENCY FINAL ORDER

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

STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION

BOARD OF DENTISTRY

DEPARTMENT OF PROFESSIONAL REGULATION,

Petitioner,

vs. CASE NO.: 61562, 89-8261,

and 90-00578

EDWARD A. JOSEPH, JR., DOAH CASE NO. 90--005723 LICENSE NO.: DN 0002556

Respondent.

/

FINAL ORDER

THIS MATTER was heard by the Board of Dentistry pursuant to Section 120.57(1), Florida Statutes, on June 5, 1992 in Gainesville, Florida, for consideration of the Hearing Officer's Recommended Order (a copy of which is

attached as Exhibit A) in the case of Department of Professional Regulation v. Edward Joseph, Jr., D.D.S., Case No. 90-5723, and was reconsidered on September 19, 1992 in Tallahassee, Florida. At the hearing, Petitioner was represented by Albert Peacock, Senior Attorney. Respondent was present and was represented by Michael J. McNerney, Esquire. Upon consideration of the Hearing Officer's Recommended Order, after review of the entire record and having been otherwise fully advised in its premises, the Board makes the following findings and conclusions.

EXCEPTIONS TO RECOMMENDED FINDINGS OF FACT

The Respondent filed Exceptions to the Hearing Officer's Recommended Findings of Fact. These exceptions were numbered 6 through 30 with numerous subparts. The numbered exceptions do not deal with individual findings and for the most part merely assert that various recommended facts are inconsistent with other evidence and testimony in the record, but not cited by the Hearing Officer. Although the Board discussed and considered each exception, because of the format in which the exceptions were filed, it was impossible for the Board to vote on each numbered exception individually. However, the Board did find that the Hearing Officer's Recommended Findings of Fact are supported by competent substantial evidence and Respondent's assertions regarding internal inconsistency and conflict with other evidence and testimony in the record do not meet the requirements of Section 120.57(1)(b)10., Florida Statutes, for rejecting the Hearing Officer's Recommended Findings of Fact. Therefore, Respondent's exceptions to the Recommended Findings of Fact are rejected.

FINDINGS OF FACT

1. The Hearing Officer's Findings of Fact are approved and adopted and are incorporated herein by reference.

   
   

2. There is competent, substantial evidence to support the Board's findings.

EXCEPTIONS TO RECOMMENDED CONCLUSIONS OF LAW

The Respondent filed an exception to the Hearing Officer's Recommended Conclusions of Law. Respondent asserted that the Hearing Officer's Findings of Fact do not support a conclusion that Respondent violated Section 466.028(1)(bb), Florida Statutes. The Board agrees with Respondent's assertion and adopts his exception as to that Recommended Conclusion of Law.

CONCLUSIONS OF LAW

1. The Board has jurisdiction of the parties and subject matter of this case pursuant to Section 120.57 and Chapter 466, Florida Statutes.

   
   

2. Paragraphs 1-6 of the Hearings Officer's Recommended Conclusions of Law are approved, adopted, and incorporated by reference herein as Conclusions of Law by the Board.

   
   

3. Paragraph 7 of the Hearing Officer's Recommended Conclusions of Law is modified to delete the words "and therefore Section 466.028(1)(bb), Florida Statutes (1989)."

4. Paragraph 7 of the Hearing Officer's Recommended Conclusions of Law, as amended above, is approved, adopted, and incorporated by reference herein as a Conclusion of Law by the Board.

   
   

5. There is competent, substantial evidence to support the Board's conclusions.

PENALTY

The Board in considering the Recommendation of the Hearing Officer adopts the recommended findings of guilt as to Counts II, III, and VI of the Administrative Complaint and the recommended finding of no guilt as to Counts IV and V of the Administrative Complaint. However, having reviewed the record and having heard the arguments of the parties, the Board finds that the relative age of these charges, the lack of repeat offenses since the charged offenses occurred, and the relative lack of actual harm to the patients are mitigating factors that justify reducing the penalty recommended by the Hearing Officer.

WHEREFORE, it is hereby ORDERED that the Respondent shall pay an administrative fine of six thousand dollars ($6,000.00). Said fine shall be paid to the Board's office within thirty (30) days of the effective date of this Final Order. Respondent shall undergo an evaluation as determined by the Physicians Resource Network (PRN) and upon completion of said evaluation Respondent shall enter into and abide by the terms of a contract with PRN. Said contract shall contain such terms as set forth by the Director of PRN. Furthermore, Respondent's license to practice dentistry shall be placed on probation for a period of two (2) years During said probation, Respondent is required to have a third person present at all times that he is examining or performing any dental procedure on a female patient.

This Final Order becomes effective upon its filing with the Clerk of the Department of Professional Regulation.

The parties are hereby notified that they may appeal this Final Order by filing one copy of a Notice of Appeal with the Clerk of the Department of Professional Regulation and by filing a filing fee and one copy of a Notice of Appeal with the District Court of Appeal within thirty (30) days of the date this Final Order is filed.

DONE AND ORDERED this 23rd day of November, 1992.

BOARD OF DENTISTRY

CHARLES L. ROSS, JR., D.D.S. CHAIRMAN

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing Final Order as been forwarded by Certified U.S. Mail this 23rd day of November, 1992, to Edward A. Joseph, Jr., c/o Michael J. McNerney, Esquire, Suite 1800, New River Center, 200 E. Las Olas Blvd., P.O. Box 522, Ft. Lauderdale, Florida 33302 and hand delivered to Albert Peacock, Senior Attorney, Department of Professional Regulation, 1940 North Monroe Street, Tallahassee, Florida 32399-0750.

WILLIAM H. BUCKHALT, C.P.M.

Executive Director Board of Dentistry

Docket for Case No: 90-005723

Orders for Case No: 90-005723