STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF )

DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7363

) MORLEY F. VAIL, D. D. S., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Donald R. Alexander, on April 13, 1993, in Jacksonville, Florida.

APPEARANCES

For Petitioner: Albert Peacock, Esquire

J. Ashley Peacock, Esquire

1940 North Monroe Street Suite 60

Tallahassee, Florida 32399-0792

For Respondent: Morley F. Vail, pro se

2471 Sage Court

Middleburg, Florida 32068 STATEMENT OF THE ISSUE

The issue is whether respondent's license as a dentist should be disciplined for the reasons cited in the amended administrative complaint.

PRELIMINARY STATEMENT

In a three-count administrative complaint filed on July 24, 1992, petitioner, Department of Professional Regulation, Board of Dentistry, charged that respondent, Morley F. Vail, licensed as a dentist, had violated certain provisions within Chapter 466, Florida Statutes. More specifically, the complaint alleged that in March and April 1992, two inspections of respondent's dental office revealed that respondent was maintaining unsanitary conditions in his office and had an expired Drug Enforcement Agency certificate (Count I). It goes on to allege that from May through November 1991, respondent prescribed controlled substances to a patient other than in the course of his professional practice as a dentist (Count II). The final count charges that in June and July 1992, respondent failed to provide reasonable sanitary facilities and conditions in his office, prescribed a controlled substance other than in the course of his professional practice as a dentist, operated his office in such a manner as to result in dental treatment that was below minimum acceptable standards of

performance for the community, and failed to keep dental records justifying the course of treatment of two patients (Count III). According to the complaint, this conduct constituted a violation of Subsections 466.028(1)(m), 466.028(1)(q), 466.028(1)(v), 466.028(1)(bb), and 466.028(1)(gg), Florida

Statutes.

Respondent disputed the above allegations and requested a formal hearing pursuant to Subsection 120.57(1), Florida Statutes, to contest the proposed agency action. The matter was referred by petitioner to the Division of Administrative Hearings on December 9, 1992, with a request that a Hearing Officer be assigned to conduct a hearing. By notice of hearing dated January 11, 1993, a final hearing was scheduled on April 13, 1993, in Jacksonville, Florida.

On April 2, 1993, petitioner was given leave to file an amended complaint.

The amendment deleted three paragraphs from the original complaint.

At final hearing, petitioner presented the testimony of K. D. Gray, a former City of Jacksonville inspector; Charles C. Coats, III, a DPR investigator; S. H. S., a former patient; Russ Huling, a DPR investigator; Richard E. Poland, William G. Smith, Darwin Stiles and Kamel Batteh, all Jacksonville pharmacists; Latoyle J. Levister, Kenneth R. Fox, and Ronald Norse, all detectives with the Jacksonville Sheriff's Office; Lee P. Strickland, a Tallahassee pharmacist and accepted as an expert in pharmacy; and Dr. Rupert P. Bliss, a Jacksonville dentist and accepted as an expert in general dentistry.

Also, it offered petitioner's exhibits 1-17. All exhibits were received in evidence. Respondent testified on his own behalf and presented the testimony of Linda Nygren, his office manager. Also, he offered respondent's exhibit 1 which was received into evidence.

The transcript of hearing (two volumes) was filed on May 10, 1993.

Proposed findings of fact and conclusions of law were filed by the petitioner on May 25, 1993. A ruling on each proposed finding is set forth in the Appendix attached to this Recommended Order.

FINDINGS OF FACT

Based upon all the evidence, the following findings of fact are determined:

1. Background

   
   

   1. Respondent, Morley F. Vail, is a licensed dentist having been issued license number DN 0003030 by petitioner, Department of Professional Regulation (DPR), Board of Dentistry (Board). When the events herein occurred, respondent operated the Atlantic Denture Clinic at 1052 University Boulevard North, Jacksonville, Florida. He now resides at 2471 Sage Court, Middleburg, Florida. Respondent has been practicing dentistry for over thirty years, having been licensed by the state in 1960. Except for this proceeding, there is no evidence that he has ever been the subject of disciplinary action in connection with his license.

      
      

   2. Respondent rented his office space and equipment from another local dentist, Dr. Holloway, in an "as is" condition. The building in which the space was located was antiquated and, among other things, was in need of roof repairs. In addition, all of the equipment was old but still functional. Although the building had a number of rooms, respondent leased only a portion of the building. This included a room used as a reception area, two small cubicles

      used as patient examination rooms and a room behind the examination rooms which was used as a laboratory to make dentures. The remainder of the building was not used for dental purposes. However, respondent's office manager used a part of the unleased portion of the building as a storage area for her furniture and other personal items. At this point in respondent's career, his practice was limited to extractions and making dentures.

      
      

2. Count I

   
   

   1. Count I alleges that inspections of respondent's office on March 26, 1992, and April 8, 1992, revealed he failed "to provide and maintain reasonable sanitary facilities and conditions" and that he violated Subsection 466.028(1)(bb), Florida Statutes, by violating Chapter 21G-25, Florida Administrative Code. Although not specifically stated in the complaint, this latter charge is presumably based upon the allegation that "Dr. Vail's Drug Enforcement Agency certificate expired on or about May 31, 1991".

      
      

   2. On an undisclosed date in March 1992, a City of Jacksonville deputy field inspector for the tax collector's office inspected respondent's office to determine if respondent had a city occupational license for the year 1991-92. Finding that the occupant of the building had no license, the inspector left a notice advising respondent that he needed a license. When no response was promptly received, the inspector returned to respondent's office on March 26, 1992. At that time, respondent paid for a new license. During the course of the visit, the inspector entered the premises and said he was not "impressed" with the conditions of the waiting room because it "wasn't what (he) was used to". Because the inspector desired to ascertain if more than one business was being conducted on the premises, he went to a "back room" and observed uncovered "utensils and pans" and concluded the room was a dental laboratory.

      
      

   3. Based upon an anonymous complaint, and a "referral" by the City of Jacksonville inspector, on April 8, 1992, a DPR investigator, Charles C. Coats, III, made an unannounced visit to respondent's office. According to Coats, the office had considerable dust, aged equipment, a leaky roof which had caused water damage to the panels of one room and "bleeding" paint from moisture, and a "cluttered" examination room. Photographs of the office taken by Coats have been received in evidence as petitioner's exhibits 2A and 2B. Coats also noted that respondent's Drug Enforcement Agency (DEA) certificate had expired on May 31, 1991, or almost a year earlier. Such a certificate is required from the DEA in order to prescribe controlled substances. After discussing these matters with respondent, Coats advised respondent that he would be required to turn the results of his investigation over to the Board for possible action. Although respondent's office was not a model of cleanliness in March and April 1992, it is found that it was not in such a deplorable condition as to constitute "unreasonable" sanitary facilities and conditions.

      
      

3. Count II

1. Count II alleges that from July 1991 through November 1991 respondent "violated Section 466.028(1)(q), Florida Statutes, by prescribing, procuring, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the professional practice of the dentist". This charge stems from respondent's treatment in 1991 of a female patient identified as S. H. S. The facts underlying this charge are extremely confusing since the copy of the patient records offered into evidence is only partially legible, the abbreviations and medical jargon contained in the records were not translated by any witness, the dates in the complaint do not

   correlate in all respects to the dates in the patient records, many of the prescriptions are not recorded in the records, the testimony of the patient was confusing and contradictory, and most of the prescriptions offered into evidence were in the names of someone other than S. H. S. In addition, a large number of the prescriptions had been telephoned into the pharmacies by unknown persons or did not bear respondent's signature.

   
   

2. In judging the credibility of S. H. S.'s version of events, the undersigned has considered the contradictions in her testimony, her inability to recall specific dates and times, and the fact that she has been arrested at least once for fraudulently obtaining drugs. In addition, the patient had a lengthy history of abusing drugs and did not relate this fact to respondent when she requested treatment. She also admitted that during the relevant time period, she used aliases to obtain drugs, and she would telephone various pharmacies, identify herself as respondent's assistant, and then authorize a prescription to be filled under her name or an alias. Finally, when she was arrested in 1992, it can be inferred from her testimony that she quickly volunteered respondent's name to authorities in a less than favorable light in an effort to obtain a lighter sentence. This disclosure led in part to an investigation of respondent by law enforcement authorities. Given these considerations, the undersigned has not accepted her testimony as being credible.

   
   

3. Although the complaint alleges that respondent began treating S. H. S. in May 1991, the patient records reflect she first visited his office on April 15, 1991. Among other things, the patient desired to have all of her upper teeth extracted and replaced with a full plate denture. She also presented a complaint about her lower teeth which were causing pain. On the first visit, S.

   H. S. says respondent did an impression and took x-rays and on the second visit, which was "two or three days" later, he extracted fourteen teeth. However, the records indicate that the teeth were not extracted until her fourth visit, or on May 4, 1991. In any event, the records show that on visits made on April 15 and 20, 1991, the patient was given prescriptions for fifteen and twenty lortab 7.5 tablets, respectively, a schedule III controlled substance. This was presumably in response to a notation in the records that "pt. has pain." The records contrast with the patient's recollection that she received prescriptions for percodan and valium on her first and second visits. However, her recollection is partially confirmed by respondent's acknowledgement that when the teeth were extracted, he gave the patient valium because she was extremely nervous and jittery. The prescription for valium is not noted in the records. Although the patient says she next visited respondent's office in July 1991 when she broke her temporary plate, the records reflect that she returned to respondent's office on May 12, 1991. At that time, the records note that she asked for a refill of a prescription but she was "reminded still had Rx". However, on May 18, 1991, she was apparently given another prescription for eighteen lortab 7.5 tablets. The notes pertaining to the reasons why the prescription was given are not legible. On June 1, 1991, the records indicate S. H. S. "called on phone for Rx" but she was told she "needed to come in for exam."

   
   

4. On June 5, 1991, the patient made another office visit. The word "healing" is legible but most of the remaining notes are not. The records do indicate that she was given a prescription for eighteen lortab 7.5 tablets that day. On July 5, 1991, or four weeks later, the patient returned to respondent's office for a visit. On that day, the records note that she was "still in pain" and was given a prescription for eighteen more lortab 7.5 tablets.

5. S. H. S. next visited respondent's office on August 8, 1991, or more than a month later. The notes reflect that the "upper (illegible) healing slowly". She was given another prescription for eighteen lortab 7.5 tablets. There is a subsequent undated notation in the records that "pt. called on phone wanting Rx, pt. told required office visit." The final notation relevant to this complaint was made on December 6, 1991, and stated that "pt. has painful lower teeth, told to get (illegible)."

   
   

6. The amended complaint alleges that "from approximately May 1991 through November 1991, Dr. Vail prescribed Lortab 7.5 to patient S. H. S." and "routinely provide(d) (her) access to controlled substances including Lortab 7.5 and Percodan, without the benefit of an evaluation, examination or proper diagnosis and treatment planning." To substantiate these allegations, a large number of prescription forms allegedly written or authorized by respondent were offered into evidence. In addition, S. H. S. attempted to bolster this allegation by stating that beginning in July 1991 she visited respondent's office up to three times a week and telephoned his office the same number of times, for a total of six personal or telephonic contacts per week, all for the purpose of obtaining prescriptions for drugs. As to this assertion, the patient's testimony is rejected as not being credible.

   
   

7. Testimony was offered by four Jacksonville pharmacists who filled prescriptions for S. H. S., or an alias, or for a male who had the same last name. Since the undersigned has deemed the prescriptions in the name of someone other than S. H. S. or those written after the dates cited in the complaint to be irrelevant and having no probative value, only seven prescriptions in the name of S. H. S. have been considered. They are dated July 30, 1991 (fourteen lortab 7.5 tablets), August 1, 1991 (sixteen lortab 7.5 tablets), September 24, 1991 (sixteen percodan tablets), September 27, 1991 (eighteen percodan tablets), October 10, 1991 (fifteen percodan tablets), October 10, 1991 (ten lortab 7.5 tablets), and October 14, 1991 (twelve percodan tablets). Of these seven, prescription number 501738 filled on October 14, 1991, for ten lortab 7.5 tablets was apparently telephoned in by an unnamed person and has been disregarded given the testimony of the patient that she would telephone in prescriptions while posing as respondent's assistant. It is noted that none of these six prescriptions are found in the patient records and all were written after respondent's DEA certificate had expired.

   
   

8. Controlled substances are classified into five schedules, with Schedule I drugs (e.g., heroin) having no medical value and the greatest abuse potential. Percodan is a Schedule II controlled substance having a high potential for abuse and addiction, and misuse may lead to severe psychological or physical dependence. It is noted that a Schedule II prescription cannot be telephoned in by a physician. Instead, a written prescription must be personally presented by the patient to the pharmacist. Lortab 7.5 is a Schedule III controlled substance and has a potential for abuse. Misuse of the substance may lead to moderate or low physical dependence or high psychological dependence. Finally, valium is a Schedule IV drug having a lower potential for abuse.

   
   

9. It may be reasonably inferred from the evidence that the patient required percodan or lortab for a reasonable period of time after having fourteen teeth extracted, given the fact that she was a slow healer. In addition, the patient's lower teeth were in need of treatment, and the records reflect she continued to experience pain until December 1991. Even so, the dispensing of six prescriptions for schedule II or III controlled substances from July 30 until October 14, 1991, constituted a failure to prescribe drugs in

   the course of his professional practice, especially since the patient exhibited an unhealthy pattern of continually requesting refills.

   
   

   1. Count III

      
      

10. In Count III, respondent is charged with failing "to provide and maintain reasonable sanitary facilities and conditions" during a July 1992 inspection, prescribing a legend drug to an undercover police officer other than in the course of his professional practice, operating a dental office in such a manner as to result in dental treatment below the minimum acceptable standards of performance for the community, and failing to keep written records and medical history justifying the course of treatment of a patient.

    
    

    1. Improper prescribing of a drug

       
       

11. On June 15, 1992, Latoyle A. Levister, a detective with the Jacksonville Sheriff's Office, visited respondent's office in an undercover capacity. Using the name of "Nikki Lewis", and posing as a "go-go dancer just off the plane from Chicago", the detective told respondent that two fillings had just fallen out, she was in pain, and she needed advice as to what treatment was appropriate. This complaint turned out to be true since Levister had just lost fillings from two teeth. After Levister was taken to an examination room, and she gave a brief patient history, respondent examined her mouth with what Levister recalls was a "mirrow-type instrument". He did not take any X-rays. Respondent confirmed the fillings were missing and, according to Levister, suggested as a course of treatment that she either have an extraction, which he could perform, or a root canal, which would have to be performed by another dentist. He also suggested that to ease her pain until she made a decision, she take a prescription drug and offered her one of four drugs, including percodan. He also asked if she was allergic to aspirin. Levister selected percodan and thereafter received a prescription for eighteen percodan tablets and twenty-five ampicillin tablets, the latter being an antibiotic. The prescription for percodan was filled at a nearby drug store.

    
    

12. On June 17, 1992, Levister telephoned respondent's office and asked for a refill of her percodan prescription. She was told it could not be done by telephone and she must make an office visit. Accordingly, she visited his office that afternoon. After Levister was seated in the examination room, Dr. Vail entered the room, asked her what she needed, and she responded "percodan". He then had her open her mouth, briefly checked her teeth, and wrote her a prescription for eighteen percodan tablets. Before she left, respondent asked her to advise him if she had any problems.

    
    

13. On June 23, 1992, Levister again telephoned respondent's office and asked for a refill of her percodan prescription. She was told she needed to make an office visit. That afternoon, she visited respondent's office but did not see Dr. Vail. Instead, she spoke to his office manager who then went to the laboratory and returned with a prescription for twenty percodan tablets written by Dr. Vail.

    
    

14. On June 26, 1992, Levister returned to respondent's office without an appointment. This was because respondent's telephone line had been busy and she was unable to secure an appointment by telephone. After being seated in the examination room, Levister told Dr. Vail that she wanted a refill of the percodan. Respondent reminded her that she had already received three prescriptions and cautioned her that the drug was "highly addictive". After briefly examining her teeth, he again advised her to either have an extraction

    or a root canal. Again, no X-rays were taken. Levister told respondent that she had difficulty in filling the last prescription, could not afford to have it filled in her own name, and asked if a prescription for percodan could be written in her mother's name, "Nancy Baker", who had dental insurance.

    Respondent then wrote a prescription for twenty percodan tablets in the name of "Nancy Baker". He readily acknowledges that this was "poor judgment" but his "intention was to provide (Levister) relief from pain, which the patient had complained of on previous visits."

    
    

15. By prescribing a Schedule II controlled substance in the name of someone other than a patient, and by prescibing the same drug on June 23, 1992, without actually examining the patient, respondent prescribed a drug other than in the course of his professional practice.

    
    

    1. Failure to provide sanitary facilities

       
       

16. After Levister's undercover work was completed, on July 7, 1992, the Jacksonville Sheriff's Office executed and served on respondent's office a search warrant and subpoena for certain patient records. A DPR investigator accompanied the detectives. Respondent was not present on the premises that day.

    
    

17. As a result of his inspection, one detective characterized the premises as "deplorable", "very nasty" and "dirty", and he observed rust and blood on instruments. Levister was also present and observed a suction device in a patient examination room lying on the floor. She also saw dirty (rusted or bloodied) instuments and ants crawling across the counter in one of the rooms. Although she found a back room clogged with "all kinds of junk and furniture" and a refrigerator with mold and mildew, this room was not a part of the dental office but rather was used as a storage area by the office manager.

    
    

18. According to the DPR investigator, the office was in a "little bit more deteriorated" condition than in April 1992, and no visible improvements or corrections had been made since his last visit. More specifically, he observed "exposed" dental instruments that appeared to be "corroded or rusted", a used pair of rubber gloves on a countertop and exposed hypodermic needles. When asked to compare the office with others he had inspected, Coats says he inspected only those offices that he suspected might be below standards, and respondent's office "could be worse or better" than others he had seen. He added that the office was "mighty close" to being classified as unsanitary.

    
    

19. Petitioner's expert reviewed the photographs taken of respondent's office in April 1992 and heard the testimony given by the detectives and the DPR investigator. Based on the photographs and testimony, he opined that by respondent having "dirty or rusty" instruments throughout the office, and by failing to repair "wet, leaky walls", respondent had maintained his office in an unsanitary condition. This is because moisture and bacteria are easily carried from one room to another by the ventilation system, drills and compressed air from vacuums. Further, dirty or used instruments left unattended have the potential for injuring employees and luring bugs and rodents onto the premises. Accordingly, it is found that the office was maintained in an unsanitary condition during the July 7, 1992, inspection.

    
    

    1. Operating a dental office below acceptable standards

       
       

20. During their inspection of the premises on July 7, 1992, the detectives did not find any patient records for "Nikki Lewis". Indeed, the only

    records found were file cards, and these were in disarray. By failing to maintain complete patient records and good sanitary conditions, writing a prescription for a ficticious patient, and using what appeared to be substandard materials or equipment, petitioner's expert opined that respondent was operating a dental office in such a manner as to result in dental treatment that is below minimum acceptable standards of performance for the community. This opinion has been accepted by the undersigned.

    
    

    1. Adequacy of written records

    
    

21. Since the detectives could find no records of "Nikki Lewis" during their search of the premises on July 7, 1992, it can be reasonably inferred that none were maintained for this patient. As to patient S. H. S., her records were offered into evidence but are partially illegible. Even so, there are no entries in the records concerning the six prescriptions given to the patient between July 30 and October 14, 1991, nor for the valium prescription which respondent says he gave her in May 1991. As to those seven prescriptions, and the ones given to "Nikki Lewis", it is found that the records did not justify the course of treatment of those patients.

    
    

    1. Mitigation

    
    

22. After the execution of the search warrant, respondent and his office manager were arrested on July 8, 1992. On January 28, 1993, all charges were dropped against them in return for respondent agreeing not to practice dentistry for eighteen months retroactive to his date of arrest and to never prescribe any medication in the future. Accordingly, by the terms of this agreement, respondent cannot practice dentistry until on or about January 8, 1994, and he will never again be able to prescribe "medications." Although not stated on the record, exhibit 17 suggests that respondent's license to practice dentistry was suspended by the Board on the date of his arrest and will remain suspended pending the outcome of this proceeding.

    
    

23. Except for these offenses, respondent has never been disciplined by the Board during his lengthy tenure as a dentist. Further, the matter of his competence is not in issue. Respondent has not practiced dentistry since this matter arose, and he has been financially devastated to the extent he was unable to hire counsel to represent him in this proceeding. The practice of dentistry is respondent's only livelihood. In recent years, respondent's practice has been restricted to a limited area (extractions and dentures), and he has focused on serving the lower-income, uninsurable segment of the community, or in respondent's words, "the bottom of the barrel" type of dental patients. He denies he ran a "prescription mill" as alleged in the complaint, and this is partially confirmed by entries in S. H. S.'s records, which show respondent would not give her a prescription on several occasions unless she visited the office, and his twice refusing to write a prescription for "Nikki Lewis" without an office visit. It should also be noted that respondent assisted the Jacksonville Sheriff's Office in having S. H. S. arrested for fraudulently obtaining drugs. As to the unsanitary conditions in his office, respondent pointed out that he used a Pelton autoclave on a daily basis to sterilize all instruments. He also says that Dr. Holloway (the lessor) refused to make any repairs and he (respondent) had insufficient funds to correct any of the building's deficiencies. Further, it may be inferred that financial limitations prevented respondent from upgrading the old equipment leased from Dr. Holloway. As to his failure to obtain a current DEA license, respondent acknowledges that the license had expired through inadvertence, but he instructed his office manager to renew it after the DPR investigator brought this to his attention.

    For some reason she placed the money order and application in a file drawer and neglected to sent them to the DEA regional office in Miami. While conceding he did not run an "ivory-tower practice", respondent says his clinic was providing a low-cost service to members of the public who could not afford expensive dental treatment. Finally, he recognizes that he may never again be able to practice dentistry on his own, but he does wish to practice in some capacity in the future, perhaps in an institution under another dentist's direct supervision.

    
    

    CONCLUSIONS OF LAW

    
    

24. The Division of Administrative Hearings has jurisdiction of the subject matter and the parties hereto pursuant to Subsection 120.57(1), Florida Statutes.

    
    

25. Because respondent's dental license is at risk, petitioner is obligated to prove the allegations in the complaint by clear and convincing evidence. See, e. g., Ramsey v. Department of Professional Regulation, Division of Real Estate, 574 So.2d 291 (Fla. 5th DCA 1991).

    
    

26. Respondent is charged in Count I with violating Subsections 466.028(1)(v) and (1)(bb), Florida Statutes, by failing to provide and maintain sanitary facilities and conditions at his office in March and April 1992 and by violating a provision within Chapter 21G-25, Florida Administrative Code. In Count II, he is charged with prescribing controlled substances to S. H. S. other than in the course of his professional practice as a dentist. Count III alleges that respondent again violated Subsection 466.028(1)(v), Florida Statutes, by maintaining an unsanitary office in July 1992, violated Subsection 466.028(1)(q), Florida Statutes, by prescribing a controlled substance to "Nikki Lewis" other than in the course of his professional practice, violated Subsection 466.028(1)(gg), Florida Statutes, by operating his office in such a manner as to result in dental treatment that is below acceptable standards of performance for the community, and violated Subsection 466.028(1)(m), Florida Statutes, by failing to keep dental records on S. H. S. and "Nikki Lewis" that justified the course of treatment rendered to those patients.

    
    

27. As to Count I, the evidence is less than clear and convincing that respondent violated Subsection 466.028(1)(v), Florida Statutes, by maintaining his office in an unsanitary condition on March 26, 1992, and April 8, 1992. Similarly, the charge that respondent violated Subsection 466.028(1)(bb), Florida Statutes, by violating a Board rule must also fail. The specific rule allegedly violated is not cited in the amended complaint but reference is made to "Rule 21G-25, Florida Administrative Code." That chapter relates to sterilization and disinfection procedures to be followed in the practice of dentistry. Since there was no testimony as to which, if any, section of the chapter was violated, this portion of the complaint should be dismissed. In so ruling, the undersigned notes that in its proposed order, petitioner contends for the first time that by having an unexpired DEA certificate, respondent violated Subsections 466.017(1) and 893.04(1)(c)2., Florida Statutes. However, respondent was never given notice that he was charged with violating those statutes, and petitioner's effort to do so after the record has closed is obviously untimely. Cf. Wray v. Department of Professional Regu-lation, Board of Medicine, 435 So.2d 312, 315 (Fla. 1st DCA 1983)(finding a licensee guilty of an offense for which he was not charged is a violation of due process).

    
    

28. As to Count II, petitioner has established by clear and convincing evidence that respondent violated Subsection 466.028(1)(q), Florida Statutes, by

    prescribing a legend drug other than in the course of his professional practice. However, this violation is restricted to the seven prescriptions referred to in finding of fact 26.

    
    

29. By clear and convincing evidence, petitioner has also established that respondent failed to maintain his office in a sanitary condition on July 7, 1992, in violation of Subsection 466.028(1)(v), Florida Statutes, dispensed legend drugs to patient "Nikki Lewis" other than in the course of his professional practice in violation of Subsection 466.028(1)(q), Florida Statutes, operated a dental office in such a manner as to result in dental treatment that is below minimum acceptable standards of performance for the community as proscribed by Subsection 466.028(1)(gg), Florida Statutes, and failed to keep written dental records and medical history records justifying the course of treatment of patients S. H. S. and "Nikki Lewis" in violation of Subsection 466.028(1)(m), Florida Statutes. Therefore, the allegations in Count III have been sustained.

    
    

30. Rule 21G-13.005(4), Florida Administrative Code, provides disciplinary guidelines to be used in assessing a penalty against a licensee. For prescribing a legend drug other than in the course of one's professional practice, subsection (3)(t) of the rule states that "the usual action of the Board shall be to impose a period of probation, restriction of practice, suspension and/or revocation." For failing to provide and maintain reasonable sanitary facilities and conditions, subsection (3)(y) of the rule provides that "the usual action of the Board is to impose a period of probation and/or suspension." For failing to keep written dental records justifying the course of treatment of the patient, subsection (3)(p) provides that "the usual action of the Board shall be to impose a period of probation." Finally, for operating a dental office in such a manner as to result in dental treatment that is below minimum acceptable standards of performance, subsection (3)(mm) of the rule states that "the usual action of the Board shall be to impose a period of probation and/or suspension." Also relevant is language in section (1) of the rule which provides that "unless relevant mitigating factors are demonstrated the Board shall always impose a reprimand and an administrative fine not to exceed $3,000 per count or offense when disciplining a licensee for any of the grounds" listed above. At the same time, section (4) of the rule enumerates aggravating or mitigating factors which the Board may consider. They include:

    
    

    1. The severity of the offense;

    2. The danger to the public;

    3. The number of repetitions of offenses or number of patients involved;

    4. The length of time since the violation;

    5. The number of times the licensee has been previously disciplined by the Board;

    6. The length of time the licensee has practiced;

    7. The actual damage, physical or otherwise, caused by the violation and the reversibility of the damage;

    8. The deterrent effect of the penalty imposed;

    9. The effect of the penalty upon the licensee's livelihood;

    10. Any efforts of rehabilitation by the licensee;

    11. The actual knowledge of the licensee

        pertaining to the violation;

    12. Attempts by the licensee to correct or stop the violation or refusal by the licensee to correct or stop violation.

    13. Related violations against the licensee in another state including findings of guilt or innocense, penalties imposed and penalties served.

    14. Penalties imposed for related offenses under sections (2) and (3) above;

    15. Any other relevant mitigating or aggravating factor under the circumstances.

        
        

31. In its proposed order, petitioner recommends that respondent be fined

$21,000 and that his license be revoked. It cites no aggravating factors that would justify this penalty. In the undersigned's judgment, this is far too harsh a penalty given the circumstances here. To begin with, respondent has practiced more than thirty years without a blemish on his record. He is financially devastated by these matters and could not even afford counsel to protect his license. Further, under the Board's own guidelines, revocation is a possible penalty for only one of the violations for which respondent has been found guilty. Given the circumstances outlined in findings of fact 27 and 28, including respondent's agreement to never again prescribe medications, it is respectfully recommended that respondent's license be suspended for one year to be followed by five years' probation subject to such conditions as the Board deems to be appropriate. Finally, given his financial circumstances, it is recommended that no administrative fine be imposed.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Board of Dentistry enter a final order finding

respondent guilty of the violations set forth in paragraphs 33 and 34,

dismissing the charges in Count I, and suspending respondent's license for one year to be followed by five years' probation under such conditions as the Board deems to be appropriate.

DONE AND ENTERED this 10th day of June, 1993, in Tallahassee, Florida.

DONALD R. ALEXANDER

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 10th day of June, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7363

Petitioner:

1. Partially adopted in finding of fact 1.

2. Partially adopted in findings of fact 4 and 5.

3. Partially adopted in finding of fact 5.

4. Partially adopted in finding of fact 23. 5-6. Partially adopted in finding of fact 8.

7. Partially adopted in findings of fact 8-12. 8-10. Partially adopted in finding of fact 13.

11-13. Rejected as not being based on credible testimony.

1. Partially adopted in finding of fact 14.

2. Rejected as not being based on credible testimony. 16-19. Partially adopted in finding of fact 16.

1. Partially adopted in finding of fact 17.

2. Partially adopted in finding of fact 18.

3. Partially adopted in finding of fact 19.

4. Partially adopted in findings of fact 14 and 20.

5. Partially adopted in finding of fact 25.

6. Partially adopted in finding of fact 24.

Note - Where a proposed finding has been partially accepted, the remainder has been rejected as being irrelevant, subordinate, not supported by the more credible evidence, a conclusion of law, or unnecessary.

COPIES FURNISHED:

William Buckhalt, Executive Director Board of Dentistry

1940 North Monroe Street Tallahassee, FL 32399-0750

Jack L. McRay, Esquire 1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Albert Peacock, Esquire 1940 North Monroe Street Suite 60

Tallahassee, FL 32399-0792

Dr. Morley F. Vail 2471 Sage Court

Middleburg, FL 32068

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.

Docket for Case No: 92-007363

Orders for Case No: 92-007363