STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-4570

)

JOEL M. BERGER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal hearing was held in this case before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 30, 1992, in Miami, Florida.

APPEARANCES

For Petitioner: Charles Faircloth, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Max R. Price, Esquire

Solms & Price, P.A.

1550 Madruga Avenue, Suite Number 230 Coral Gables, Florida 33146

STATEMENT OF THE ISSUE

The issues for determination in this proceeding are whether Respondent violated Section 466.026(2)(a), Florida Statutes, by using the initials "D.D.S." after his name on business stationary and by testifying as an expert in administrative proceedings.

PRELIMINARY STATEMENT

Petitioner filed an Administrative Complaint against Respondent on July 1, 1992. Respondent requested a formal hearing on July 14, 1992. The matter was referred to the Division of Administrative Hearings for assignment of a hearing officer on July 28, 1992, and assigned to Hearing Officer Michael M. Parrish on August 3, 1992.

A formal hearing was scheduled for October 30, 1992, pursuant to a Notice of Hearing issued on August 31, 1992. The matter was transferred to the undersigned prior to the date of the formal hearing.

At the formal hearing, Petitioner cross examined the Respondent and submitted six exhibits for admission in evidence. Petitioner's Exhibits 1-6 are identified in the transcript of the formal hearing. Petitioner's exhibits 1, 2, and 6 were rejected pursuant to Respondent's objections. Petitioner's Exhibits 3-5 were admitted in evidence without objection. Respondent testified in his own behalf and submitted one composite exhibit which was admitted in evidence.

A transcript of the formal hearing was filed with the undersigned on November 12, 1992. Petitioner timely filed proposed findings of fact and conclusions of law on November 19, 1992. Respondent timely filed proposed findings of fact and conclusions of law on November 25, 1992. The parties' proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Petitioner is the governmental agency responsible for issuing licenses to practice dentistry and regulating licensees on behalf of the state. Respondent is not licensed in this or any other state as a dentist and is not an applicant for a license as a dentist.

   
   

2. Respondent was educated as a dentist, was formerly a licensed dentist in New York, and practiced dentistry for approximately 27 years until his license was revoked more than five years ago. Respondent also has a juris doctor ("J.D.") degree from the University of Miami Law School and, except for the ethics portion, has satisfactorily completed the Florida Bar examination.

   
   

3. Respondent is a shareholder, executive director, and consultant in Dental-Legal Advisors, Inc. ("DLA"). Respondent gives advice in the fields of dental practice management and bio- ethical issues. Respondent provides advice to government, insurance companies, attorneys, and dentists. Respondent appears regularly on television and has spoken before the Dade County Legislative Assembly and Palm Beach County Commission.

   
   

4. Respondent's specialty is dentistry. The majority of Respondent's work is comprised of giving advice to attorneys and dentists concerning the ethics, science, and law involved in dentistry and representing physicians and dentists in administrative proceedings against the Department of Professional Regulation.

   
   

5. Respondent uses the initials "D.D.S." in conjunction with the initials "J.D." on the letterhead of DLA. Respondent never uses the initials "D.D.S." without the initials "J.D." or vice versa. Respondent explains during every encounter that he is not licensed to practice dentistry in any state and does not practice dentistry. It is necessary for commercial reasons for Respondent to use his academic degrees to inform his clients of his ability to provide the advice sought. As Respondent testified:

   
   

   It's important for somebody in the profession to understand that they can talk to me. . . .

   I speak law and I speak tooth. I can explain the law to dentists in words they understand; I can explain dentistry to lawyers in words they understand. And so that says I really speak two languages and I may be able to help you.

   Transcript at 30.

   
   

6. Respondent's use of the initials "D.D.S." after his name does not represent Respondent as being able to practice dentistry within the meaning of Sections 466.03(3) and 466.026(2), Florida Statutes. 1/ The letterhead used by Respondent clearly is not the letterhead of a dental practice. The letterhead reads, "Dental- Legal Advisors, Inc." The names of three board members, including Respondent's name, appear in the upper left corner below the letterhead. Each name is followed by various initials. Respondent's name is the first name and is followed by the initials "D.D.S." and "J.D." The second board member's name is followed by the initials "D.D.S.", "J.D.", and "F.A.G.D." The third board member's name is followed by the initials "Esq." Clearly, the foregoing initials are not those customarily found on the letterhead of a dental practice. Under the circumstances, the initials represent Respondent's educational qualifications and qualifications as a consultant rather than his ability to diagnose, treat, prescribe, or operate for any disease, pain, deformity, deficiency, injury or physical condition of the teeth, jaws, or oral- maxillofacial region. 2/

   
   

7. Respondent's prior testimony as an expert witness in an administrative proceeding did not constitute the practice of dentistry. Respondent was accepted as an expert witness by Hearing Officer Stephen Menton in Department of Professional Regulation, Board of Dentistry v. Steven Rindley, D.D.S., DOAH Case No. 89-0648. Hearing Officer Menton found that the expert witnesses called by Dr. Rindley were more persuasive than those called by the Department of Professional Regulation and recommended that the charges be dismissed.

   
   

8. The issue in Rindley was whether Dr. Rindley could proceed with treatment without a contemporaneous x-ray when the patient refused the x-ray recommended by Dr. Rindley. The issue was not one of dentistry because Dr. Rindley advised the patient to take the x-ray. The issue was a bio-ethical issue of whether Dr. Rindley could proceed after the patient refused the x-ray. As an expert witness, Respondent reviewed the records, reached conclusions based on the dental records, and formed the opinion that Dr. Rindley could proceed and that the patient had the right to refuse any treatment for any reason. Respondent did not diagnose, prescribe, or treat any disease, pain, deformity, deficiency, injury or physical condition of the teeth, jaws, or oral- maxillofacial region. 3/

   
   

   CONCLUSIONS OF LAW

   
   

   Jurisdiction

   
   

9. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto. The parties were duly noticed for the formal hearing.

   
   

10. The fact that Respondent is neither a licensee nor an applicant for a license does not deprive Petitioner of authority to pursue disciplinary proceedings. Petitioner has authority under Section 455.228(1), Florida Statutes, to issue a notice to cease and desist and to impose an administrative fine against Respondent, even though Respondent is neither a licensee nor an applicant for a license, if:

    
    

    . . . the department has probable cause to believe that any person not licensed by the department or the appropriate regulatory

    board within the department has violated any provision of . . . any statute that relates to the practice of a profession regulated by the department, or any rule adopted pursuant thereto . . . .

    
    

    Section 455.228(1), Florida Statutes.

    
    

11. Respondent's legal argument that there was no finding of probable cause by either the Petitioner or the Board of Dentistry is not supported by competent and substantial evidence. Section 455.225(4), Florida Statutes, provides in relevant part:

    
    

    The determination as to whether probable cause exists shall be made by majority vote of a probable cause panel of the board, or by the department, as appropriate. Each regulatory board shall provide, by rule, that the determination of probable cause shall be made by a panel of its members or by the department.

    
    

    Florida Administrative Code Rule 21G-13.001 provides that the determination of probable cause shall be made only by a panel of the Board of Dentistry. No evidence was presented that the requisite probable cause was not made in this proceeding. Respondent's counsel filed no motion to compel production to obtain Petitioner's file, or other evidence, which would have established the absence of a finding of probable cause. 4/

    
    

12. Chapter 455, Florida Statutes, must be read in pari materia with Chapter 466 so as to give purpose to the two chapters as a whole and to accord effect to each and every statutory section. Villery v. Florida Parole and Probation Commission, 349 So.2d 150 (Fla. 1977); State v. Gale Distributors, 349 So.2d 150 (Fla. 1977); Ozark Corp. v. Pattishall, 185 So. 633 (Fla. 1933); Topeka Inn Management v. Pate, 414 So.2d 1184, 1186 (Fla. 1st DCA 1982).

    Chapter 455, therefore, relates to the practice of dentistry, dental hygiene, and dental laboratories.

    
    

13. The stated legislative intent for enacting chapter 455, in relevant part, is set forth in Section 455.201 as follows:

    
    

    1. It is the intent of the Legislature that persons desiring to engage in any lawful profession regulated by the Department of Professional Regulation shall be entitled to do so as a matter of right if otherwise qualified.

    2. The Legislature further believes that such professions shall be regulated only for the preservation of the health, safety, and welfare of the public under the police powers of the state. . . .

       
       

       (emphasis supplied)

       
       

       * * *

    3. . . . No board shall take any action which tends to create or maintain an economic condition that unreasonably

       restricts competition, except as specifically provided by law.

       
       

       The provisions of Chapter 455.201 apply to unlicensed individuals, pursuant to Section 455.228(1), whenever Petitioner has probable cause to believe that any unlicensed person has violated any provision of Chapter 455 or any statute that relates to the practice of a regulated profession.

       
       

       No Absolute Ban

       
       

14. Section 466.028(1)(bb), Florida Statutes, provides in relevant part, that a violation of either Chapters 455 or 466 is grounds for disciplinary action. Section 466.026(2)(a) prohibits the use of:

    
    

    . . . the letters "D.D.S." . . . or any other words, letters, title, or descriptive matter which in any way represents a person as being able to diagnose, treat, prescribe, or operate for any disease, pain, deformity, deficiency, injury, or physical condition of the teeth or jaws or oral-maxillofacial region unless the person has an active dentist's license issued by the department pursuant to this chapter.

    
    

15. Section 466.026(2)(a), Florida Statutes, does not create either an absolute ban against the use of the letters "D.D.S." or an irrebuttable presumption that the use of the letters "D.D.S." in any way represents a person as being able to practice dentistry in the state. The letters "D.D.S." also represent that a person has graduated from a dental school and received his or her degree in dentistry. An absolute ban against the truthful use of the letters "D.D.S." by those who have a degree in dentistry and who are engaged in a lawful professional activity other than dentistry would exceed the scope of legislative intent for Chapters 455 and 466, Florida Statutes. Legislative authority to regulate the dental profession is granted "only for the preservation of the health, safety, and welfare of the public under the police powers of the state." Section 455.201(2). The purpose of enacting chapter 466 is to, ". . . ensure that every dentist or dental hygienist practicing in this state meets minimum requirements for safe practice." Section 466.001. 5/

    
    

16. An absolute prohibition against the use of the letters "D.D.S." unless the user is licensed in the state would preclude those who have earned a degree in dentistry from using the letters "D.D.S." to represent their academic achievement in the pursuit of lawful occupations and professions other than dentistry. Such a result would frustrate the legislative intent for Section 455.201(3) by taking action which tends to, ". . . create or maintain an economic condition that unreasonably restricts competition." If the context of the statute taken literally conflicts with legislative intent by creating or maintaining such an economic condition, then the literal import must yield to the legislative intent which is ascertained by a consideration of all of the applicable statutes in pari materia. Vildibill v. Johnson, 492 So.2d 1047 (Fla. 1986); City of Boca Raton v. Gidman, 440 So.2d 1277 (Fla. 1983); Griffis v. State, 356 So.2d 297 (Fla. 1978). See also Novo v. Scott, 438 So.2d 477, 478

    (Fla. 3d DCA 1983) (holding that a statute should be construed in a manner that effectuates legislative intent).

    
    

    Constitutional Considerations

    
    

17. A statutory construction of Section 466.026(2)(a), Florida Statutes, that avoids an absolute prohibition against use of the letters "D.D.S." by one who has a degree in dentistry but who is not licensed in the state is consistent with judicial guidelines enunciated in cases arising under the first amendment. It is axiomatic that the legislature intends its enactments to be constitutional. Myers v. Hawkins, 362 So.2d 926 (Fla. 1978); State v. McDonald,

    357 So.2d 405 (Fla. 1978). As a corollary, legislative enactments should be construed so that the constitutionality of a statute is not diminished for the sake of administrative ease or administrative economy.

    
    

18. No jurisdiction exists in this proceeding to declare a statute unconstitutional. Carrolwood State Bank v. Lewis, 362 So.2d 110, 113-114 (Fla. 1st DCA 1978); Dept. of Environmental Regulation v. Leon County, 344 So.2d 298 (Fla. 1st DCA 1977). However, jurisdiction does exist to interpret applicable statutes and rules. Any ambiguity in a statute should be resolved in a manner that, not only effectuates legislative intent, but also preserves the constitutionality of the statute. Novo v. Scott, 438 So.2d at 478 (citing Myers and McDonald, supra, for the stated proposition).

    
    

19. Professional advertising and the first amendment were considered by the Supreme Court in Peel v. Attorney Registration and Disciplinary Comm'n of Illinois, 496 U.S. 91, 110 S.Ct. 2281, 110 L.Ed.2d 83 (1990). The State of Illinois challenged the advertising practice of an attorney who had been certified in trial practice and who listed himself on his letterhead as a trial specialist. Illinois recognized only patent, trademark, and admiralty as legitimate specialties. The Court held, in relevant part, that:

    
    

    . . . although a state may prohibit misleading advertising entirely, it may not place an absolute prohibition on potentially misleading information if the information may also be presented in a way that is not deceptive. . . . We are satisfied that the consuming public understands that licenses

    . . . are issued by governmental authorities and that a host of certificates-to commend job performance, to convey an educational degree-are issued by private organizations.

    
    

    Peel, 110 S.Ct. at 2289.

    
    

20. An absolute ban or irrebuttable presumption improperly assumes that the public would automatically mistake a claim of specialization or educational degree for a claim of formal recognition by the state. In Abramson v. Gonzalez, 949 F.2d 1567 (11th Cir. 1992), the court held that psychologists who were not licensed in Florida could use the title "psychologist" to represent themselves as psychologists in the state. In reaching its decision the court relied, in part, on the instructions enunciated in Peel:

    
    

    A majority of the justices rejected the 'paternalistic assumption' that the 'public would automatically mistake a claim of

    specialization for a claim of formal recognition by the State. [citation omitted] While a majority of the justices found that the particular advertising at issue in Peel was potentially misleading, five of the nine justices held that in general, the possibility that truthful advertising would be misleading to the public is insufficient to justify a categorical ban on all such speech.

    
    

21. The first amendment dictates that truthful commercial speech which is not inherently misleading may be regulated but not banned. Abramson, 949 F.2d at 1577. The public has a right to truthful information about the services available to them. More disclosure, rather than an outright ban on particular forms of advertising, "not only protects the advertiser's right to communicate, but also protects the general public's interest in receiving information." Parker v. Commonwealth of Ky, 818 F.2d 504, 509 (6th Cir. 1987). 6/

    
    

    Merits

    
    

22. Petitioner has the burden of proof in this proceeding. Petitioner must demonstrate by clear and convincing evidence that Respondent used the letters "D.D.S." after his name in a way that represents him as being able to practice dentistry within the meaning of Section 466.026(2)(a), Florida Statutes, and that Respondent's expert testimony in an administrative proceeding constitutes the practice of dentistry. Ferris v. Turlington, 510 So.2d 292 (Fla. 1987).

    
    

23. Petitioner did not show by clear and convincing evidence that Respondent used the letters "D.D.S." in a way that represents him as having the ability to practice dentistry in the state. The letterhead does not represent a dental practice. It represents a legal consulting business. Respondent uses the letters "D.D.S." in conjunction with the letters "J.D." to represent his educational qualifications. The public can distinguish between a university degree and a license issued by the state. Abramson, 949 F.2d at 1578.

    
    

24. Petitioner's interest in protecting the public from incompetent dentists is best served by more, not less disclosure. Abramson, 949 F.2d at 1578. Petitioner may assure that the public is not misled by adopting a rule requiring unlicensed persons who have a degree in dentistry to include supplemental information or a disclaimer whenever using the letters "D.D.S." Such a rule may require unlicensed individuals who use the letters "D.D.S." to include a statement that he or she is not licensed to practice or is not licensed in the state. See, Bates v. State Bar of Arizona, 433 U.S. 350, 384,

    97 S.Ct. 2691, 2709, 53 L.Ed.2d 810 (1977) (holding that states may require limited supplementation by warning or disclaimer to assure the public is not misled). 7/

    
    

25. Petitioner is directed legislatively to regulate professions only when less restrictive means of regulation are not available. Section 455.201(2)(c), Florida Statutes. There must be a reasonable fit between the government's end and the narrowly tailored means chosen by the state to accomplish its goal. Board of Trustees of the State Univ. of New York v. Fox, 492 U.S. 469, 480, 109 S.Ct. 3028, 3034, 106 L.Ed.2d 388 (1989). An absolute ban against the truthful use of the letters "D.D.S." by those with a degree in dentistry in the pursuit of a lawful professional activity is not a narrowly tailored means of achieving the government's end and does not result in the requisite "reasonable fit."

26. Petitioner did not show by clear and convincing evidence that Respondent's prior expert testimony in an administrative proceeding constituted the practice of dentistry. As an expert witness, Respondent reviewed records, reached conclusions based on dental records, and formed expert opinions. Respondent did not diagnose, prescribe, or treat any disease, pain, deformity, deficiency, injury or physical condition of the teeth, jaws, or oral- maxillofacial region within the meaning of Sections 466.003(3) and 466.026(2)(a), Florida Statutes.

    
    

27. Respondent is not required by the Florida Evidence Code or applicable rules to be licensed in the state in order to testify as an expert in either an administrative or judicial proceeding. Moreover, Respondent enjoys a privilege against civil liability as a result of his testimony as an expert witness. Section 455.225(11), Florida Statutes. 8/ A privilege against civil liability extends to an administrative disciplinary proceeding. Department of Highway Safety and Motor Vehicles v. Corbin, 527 So.2d 868, 872 (Fla. 1st DCA 1988) (holding that a privilege barring use of a statutorily mandated accident report in any civil or criminal trial extended to an administrative disciplinary proceeding against a state employee).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent not

guilty of the charges in the Administrative Complaint.

RECOMMENDED this 26th day of January, 1993, in Tallahassee, Florida.

DANIEL MANRY

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 26th day of January, 1993.

ENDNOTES

1/ Sec. 466.003(3), Fla. Stat., provides in relevant part: "Dentistry" means the healing art which is concerned with the examination, diagnosis, treatment planning, and care of conditions

within the human oral cavity and its adjacent tissues and structures. It includes the performance or attempted performance of any dental operation, or oral or oral- maxillofacial surgery and any procedures adjunct thereto, including physical

evaluation directly related to such operation or surgery pursuant to hospital rules and regulations . . . .

Sec. 466.026(2) provides in relevant part:

Each of the following acts constitutes a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083:

(a) Using . . . the letters "D.D.S." or

any other words, letters, title, or descriptive matter which in any way represents a person as being able to diagnose, treat, prescribe, or operate for any disease, pain, deformity, deficiency, injury, or physical condition of the teeth or jaws or oral-maxillofacial region unless the person has an active dentist license issued

by the department pursuant to this chapter. . . .

2/ See Sec. 466.026(2)(a), Fla. Stat. 3/ See Sec. 466.03(3)(f), Fla. Stat.

4/ Respondent argued during evidentiary objections that counsel for the parties had entered into an agreement in which counsel for Petitioner would produce Petitioner's file upon receipt of a letter requesting the file. Respondent's counsel sent a letter to Albert Peacock, Senior Attorney for Petitioner, dated September 1, 1992. See R-1. The letter stated in relevant part:

Pursuant to my telephone conversation with your office on August 11, 1992, this letter shall serve as a formal request for Dr.

Berger's file, including the findings of the probable cause panel and any other documentation or exhibits you tend (sic) to use at time of trial against Dr. Berger.

No evidence was presented establishing that Petitioner entered into the agreement referred to in the letter from Respondent's counsel. Mr. Peacock did not represent Petitioner at the formal hearing and neither Mr. Peacock's testimony, deposition, nor sworn statement was submitted at the formal hearing to establish the existence of the alleged agreement. The attorney representing Petitioner at the formal hearing had no knowledge of the alleged agreement and had not discussed it with Mr. Peacock. Counsel for Respondent is an attorney licensed to practice in Florida. He filed no motion to compel discovery during the 30 days after a response was due if the request for discovery in the letter dated September 1, 1992, is treated as sufficient under the Florida Rules of Civil Procedure. Nor was a motion for sanctions filed for failure to produce in accordance with an order compelling discovery. See Fla. Rules of Civ. Proc.

1.380.

5/ An agency has only that power which is expressly or by necessary implication granted by legislative enactment. Lewis Oil Co., Inc. v. Alachua County, 496 So.2d 184, 187 (Fla. 1st DCA 1986); Dept. of Highway Safety & Motor Vehicles v. German, 451 So.2d 1013 (Fla. 3d DCA 1984); State, Department of Environmental Regulation v. Falls Chase Special Taxing District, 424 So.2d 787, 793 (Fla. 1st DCA 1983); Fiat Motors of North America, Inc. v. Calvin, 356 So.2d 908, 909 (Fla. 1st DCA 1978); Yamaha Parts Distributors, Inc. v. Ehrman, 316 So.2d 557 (Fla. 1975). A power expressly limited by the legislature is not expanded by necessary implication. Any reasonable doubt as to the lawful existence of a

particular power should be resolved in favor of arresting the further exercise of that power. Edgerton v. International Company, 89 So.2d 488 (Fla. 1956); State v. Atlantic Coast Line R. Co., 56 Fla. 617, 47 So 969 (Fla. 1908); Fraternal Order of Police, Miami Lodge v. City of Miami, 492 So.2d 1122, 1124 (Fla. 3d DCA 1986).

6/ Unlike Ch. 466, Fla. Stat., the relevant statutes in Abramson, 949 F.2d at 1571, 1573-1574, 1577-1578, did not prohibit unlicensed psychologists from practicing psychology in Florida but merely prohibited unlicensed psychologists from using the title "psychologist." Counsel for Petitioner argued at the formal hearing that the absence of a statutory prohibition against the practice of psychology in Abramson precludes the Abramson decision from controlling this proceeding. In Abramson, for example, the court held:

. . . as long as Florida has not restricted the practice of psychology, the state may not prevent the plaintiffs from calling themselves psychologists in their commercial speech.

Abramson, 949 F.2d at 1576.

Unlike the statutes in Abramson, Sec. 466.026(1)(a) makes it a felony to practice dentistry without a license. Sec. 466.028(1)(bb) authorizes disciplinary proceedings for the violation of any provision of Ch. 466. It does not follow, however, that if Florida has restricted the practice of dentistry the state may prohibit those with a degree in dentistry from truthfully using the letters "D.D.S." in the pursuit of a lawful professional activity. In Abramson, the state attempted to distinguish the decisions in Peel, 496 U.S. 91, and Parker, 818 F.2d 504, on the grounds that the individuals in Peel and Parker were already licensed while the psychologists in Abramson were not. The court rejected such a distinction stating that the key finding in Peel and Parker was not that each practitioner had been licensed but that each was engaged in professional activity permitted under state law. Abramson, 949 F.2d at 1577.

Like the attorney in Peel, the dentist in Parker, and the psychologists in Abramson, Respondent's consulting business is a professional activity permitted under state law. Consequently, Respondent's right to disseminate truthful commercial speech may be restricted, but may not be cut off completely.

Abramson, 949 F.2d at 1578. If the information disseminated by Respondent is truthful and relates to a lawful activity, it is entitled to first amendment protection. Abramson, 949 F.2d at 1577; Parker, 818 F.2d at 510. The preferred remedy is more disclosure, not less.

7/ In Abramson, 949 So.2d at 1578, the court found:

In Parker, the court said a general dentist's advertising could avoid the potential for misleading the public by indicating that while he specialized in orthodontics, he did not hold an orthodontia specialty license.

'A disclaimer to such an effect would adequately address the state's concern.' [citation omitted] Just as Parker noted that there were separate telephone listings for 'Dentists' and 'Dentists- Orthodontists,' there could be separate listings in Florida for 'Psychologists' and 'Psychologists- Licensed.'

See also, Central Hudson Gas & Elec. Corp. v. Public Service Comm'n. of New York, 447 U.S. 557, 562, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980) (holding the

first amendment presumes that some accurate information is better than no

information at all); Pacific Gas & Elec. Co. v. Public Utils. Comm'n. of Calif., 475 U.S. 1, 8, 106 S.Ct. 903, 907, 89 L.Ed.2d 1 (1986) (holding that the first amendment protects the public's interest in receiving information); Bates, 433

U.S. at 375, 97 S.Ct. at 2704, 53 L.Ed.2d 810 (holding that the preferred remedy is more disclosure, rather than less).

8/ Sec. 455.225(11), Fla. Stat., provides, in relevant part: A privilege against civil liability is hereby granted to any . . . witness with regard to information furnished with respect to any investigation or proceeding pursuant to this

act, unless the . . . witness acted in bad faith or with malice in providing such information.

No evidence was presented to show that Respondent acted in bad faith or with malice in this or any other administrative proceeding.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3323

Petitioner's Proposed Findings Of Fact.

1. Accepted in Finding 1.

2. Accepted in Finding 2.

3. Accepted in Finding 5.

4. Accepted in Finding 7.

5. Rejected for the reasons stated in Conclusions of Law.

6. Rejected as irrelevant and immaterial Respondents' Proposed Findings Of Fact.

19.-20. Rejected for the reasons stated in Finding 5.

1. See preliminary statement

2. Accepted in Findings 6.-7.

3. Cumulative.

COPIES FURNISHED:

William Buckhalt, Executive Director Board of Dentistry

Department of Professional Regulation 1940 North Monroe Street, Suite 60

Tallahassee, Florida 32399-0792

Jack McRay, Esquire General Counsel

Department of Professional Regulation 1940 North Monroe Street

Tallahassee, FL 32399-0792

Charles Faircloth, Esquire

Department of Professional Regulation Northwood Centre, Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0792

Max R. Price, Esquire Solms & Price, P.A.

1550 Madruga Avenue, Suite #230 Coral Gables, Florida 33146

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.

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

DISTRICT COURT OPINION

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

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

JOEL M. BERGER, D.D.S., IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

Appellant, THIRD DISTRICT

JANUARY TERM, A.D. 1995

vs.

CASE NO. 93-2422

DEPARTMENT OF PROFESSIONAL DOAH CASE NO. 92-4570 REGULATION, BOARD OF

DENTISTRY,

Appellee.

/ Opinion filed April 12, 1995,

An Appeal from the Department of Professional Regulation. Solms & Price and Max R, Price, for appellant,

Kathryn L. Kasprzak for appellee.

Before JORENSON, LEVY, and GODERICH, JJ. PER CURIAM.

Joel Berger appeals from an order of the Department of Professional Regulation finding him guilty of the unauthorized practice of dentistry and ordering him to cease and desist using the initials "D,D,S," after his name on any documents, For the following reasons, we reverse.

Joel Berger holds Juris Doctor and D,D,S, academic degrees, but is not licensed to practice either law or dentistry in any state. 1/ Berger uses the initials "J.D." and "D.D.S." on the letterhead of his consulting business, "Dental-Legal Advisors, Inc.," through which he advises dentists and attorneys on the ethics, science, and law involved in dentistry. In Berger's words, "I speak law and I speak tooth. I can explain the law to dentists in words they understand; I can explain dentistry to lawyers in words they understand.

Following Berger's testimony as an expert witness in an administrative proceeding against a licensed dentist, the agency filed an administrative proceeding against Berger, charging him with the unauthorized practice of dentistry. The basis of the agency's complaint was Berger's use of the designation "D.D.S." following his name, which, the agency alleged, violated section 466.026(2)(a), Florida Statutes (1991), 2/ Berger requested a formal hearing on the complaint pursuant to Chapter 120, Florida Statutes (1991). The hearing officer recommended that Berger be found not guilty of the charges. In part, the Recommended Order provided that "the foregoing initials are not those customarily found on the letterhead of a dental practice. Under the circumstances, the initials represent [Berger's] educational qualifications and qualifications as a consultant rather than his ability to diagnose, treat, prescribe, or operate for any disease, pain, deformity, deficiency, injury or physical condition of the teeth, jaws, or oral-maxillofacial region.

The hearing officer concluded as a matter of law that section 466.026 (2)(a) does not impose a total ban on the use of the letters "D.D.S.," which indicate that a person has received an academic degree in dentistry. Instead, the legislature banned the use of that designation only when it would represent that the individual was licensed to practice dentistry. The hearing officer found that the agency had not shown by clear and convincing evidence that Berger's use of the D,D,S, designation represented to the public that he was able to practice dentistry in Florida.

In its final order, the agency rejected, as an incorrect finding of law, the hearing officer's finding of fact that Berger's use of the designation

D.D.S. on his letterhead did not represent that he was able to practice dentistry, as the letterhead for "Dental-Legal Advisors, Inc.," which included the names of board members and their academic and professional qualifications, clearly was not that of a dental practice. "An agency cannot circumvent the requirements of the statute [section 120.57(1)(b)10, Florida Statutes) by characterizing findings of fact as legal conclusions," Department of Labor & Employment Sec. v. Little, 588 So.2d 281, 22 (Fla. 1st DCA 1991); Harry's Restaurant & Lounge, Inc. v. Department of Business Reg., 456 So.2d 126 (Fla. 1st DCA 1984). A finding which involves both a factual and a legal conclusion cannot be rejected where there is substantial competent evidence to support the factual conclusion, and where the legal conclusion necearily follows, Little; 120,57(1)(b)1C, Fla. Stat. (1991) In this case, the agency impermissibly rejected the hearing officer's factual finding, which was supported by substantial competent evidence, and the legal conclusion that followed.

In sum, we reverse the agency's Final Order and remand with directions to enter an order consistent with the Recommended Order of the Hearing Officer.

ENDNOTES

1/ Berger's license to practice dentistry in the State of New York was revoked after twenty-seven years of dental practice.

2/ Section 466.026(2)(a) prohibits the use of "the letters D.D.S." or any other words, letters, title, or descriptive matter which in any way represents a person as being able to diagnose, treat, prescribe, or operate for any disease, pain, deformity, deficiency, injury, or physical condition of the teeth or jaws or oral-maxillofacial region unless the person has an active dentist's license issued by the department pursuant to this chapter." (emphasis added). On appeal, the agency abandons its earlier position that Berger's testimony as an expert witness constituted the unauthorized practice of dentistry, and contends only that Berger's use of the "D.D.S." designation is prohibited.

Docket for Case No: 92-004570

Orders for Case No: 92-004570