STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF BUSINESS AND ) PROFESSIONAL REGULATION, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2794

)

THOMAS M. SEDLAK, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, final hearing in the above-styled case was held in Orlando, Florida, on December 16, 1993, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

The parties were represented at the hearing as follows: For Petitioner: J. Ashley Peacock, Staff Attorney

Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

For Respondent: Michael K. Blazicek

Stephens, Lynn, Klein & McNicholas, P.A.

4350 West Cypress Street, Suite 700

Tampa, Florida 33607 STATEMENT OF THE ISSUES

The issue in this case is whether Respondent is guilty of failing to provide and maintain reasonable and sanitary facilities and conditions in his dentistry office and, if so, what penalty should be imposed.

PRELIMINARY STATEMENT

By Amended Administrative Complaint served August 23, 1993, Petitioner alleged that on June 18, 1992, Respondent's dentistry office in Inverness was dirty and unsanitary due to a musty odor, dirty and stained carpeting, food debris scattered around a play pen in the treatment area, handpieces and air/water syringes on the units with a metal tip on the air/water syringe, open cardboard boxes with exposed cotton rolls and sponges, x-ray rings and a bite apparatus in a container of cold sterilant/disinfectant, absence of records in the lab area of required monitoring of the autoclave, uncovered trays of

unbagged assorted hand instruments including scalers in drawers and undisinfected, and presence of alcohol dispensers without any surface disinfectant.

The Amended Administrative Complaint alleges that Respondent thereby violated Section 466.028(1)(v), Florida Statutes, by failing to provide and maintain reasonably sanitary facilities and conditions and Section 466.028(1)(bb), Florida Statutes, by violating Rule 21G-25.003, Florida Administrative Code, requiring the maintenance of proper sterilization and disinfection procedures.

Respondent timely requested an formal hearing.

At the hearing, Petitioner called three witnesses and offered into evidence two exhibits. Respondent called three witnesses and offered into evidence one exhibit. All exhibits were admitted.

The transcript was filed January 7, 1994. Each party filed a proposed recommended order, and rulings on the proposed findings are in the appendix.

FINDINGS OF FACT

1. Respondent is a licensed dentist in the State of Florida, holding license number DN0011363. He has been licensed in Florida since 1987.

   
   

2. In June 1992, Respondent divided his time between an office in Homosassa and an office in Inverness. He had purchased a dentistry practice in Inverness, as part of which he had obtained a considerable amount of dentistry equipment. It appears that he practiced on his own in both locations.

   
   

3. In June 1992, Respondent spent 1-2 days a week in Homosassa and the rest of the time in Inverness. About half of Respondent's practice involved Medicaid patients. Respondent's wife served as office manager.

   
   

4. On June 18, 1992, two of Petitioner's investigators and an independent consultant made an unannounced visit to Respondent's dentist office in Homosassa. The purpose of the visit was to inspect Respondent's office.

   
   

5. On June 18, Respondent, his wife, and ten-month old child were on vacation out of the country. The trip organizer had offered Respondent a last- minute opportunity to take the vacation at a reduced price. With little chance to make arrangements, Respondent had a friend come to the office to answer the phone while Respondent and his family were gone. Respondent and his family packed the car and left directly from the office.

   
   

6. The person whom Respondent had left to answer the phone met Petitioner's representatives and, at their request, allowed them to inspect the office. The condition of the office, as inspected on June 18, 1992, is the subject of the present proceeding.

   
   

7. The Homosassa office was not in operation at the time of the inspection. Respondent had been gone for at least several days before the inspection, and he remained absent for some time following the inspection. No one was seeing patients at the office on June 18, or immediately before or after that date. Further, following his return, Respondent intended to repair some equipment before the Homosassa office would return to operational status.

8. There was a musty odor in the office on June 18. However, the office had been closed and largely unoccupied for several days, so it is possible that the odor began only after Respondent had left. The ultimate source of the odor had been a faulty electronic solenoid that had allowed a vacuum line to flood the office three or four times. Respondent had solved the problem by replacing the solenoid with a manual valve.

   
   

9. Parts of the carpeting that ran through the office were discolored. However, there is no evidence that the carpeting was unsanitary or unhealthy. The carpeting was vacuumed whenever the office was open for business.

   
   

10. Respondent's infant normally stayed at the office with Respondent and his wife. The infant's playpen was kept in a snack area containing a table and chairs, refrigerator, and microwave. This area was clean when Respondent left. But the person who was answering the phone had brought her child into the office and the food debris present on June 18 was due to the mother and her child.

    
    

11. At the time of the inspection, various handpieces, which are drills, and air/water syringes were found on a counter. The handpieces and metal tips for the syringes are autoclavable. An autoclave is a device that, by heat or chemical action, kills bacteria and viruses in order to sterilize an instrument. At all times, Respondent had a working autoclave in his office and used in appropriately.

    
    

12. Due to the suddenness of his departure, coupled with the fact that Respondent had left himself ample time on his return to reset up his office, Respondent had left several handpieces and metal-tipped syringes out on the counter, rather than autoclaving them and placing them in autoclave bags. Similarly, Respondent had left x-ray rings, which are used to position the x-ray relative to the film, and related equipment in disinfectant. He intended to autoclave all of these items, as well as change the disinfectant, prior to reopening for business.

    
    

13. A large number of scalers, which scrape plaque from teeth, were in drawers at the time of the inspection. These scalers were not in autoclave bags. However, these were surplus scalers that Respondent had been required to purchase when he purchased the practice. These scalers, which were worn and dull, were not used as scalers, but were now for various mechanical tasks, for which they are well-suited. Like awls or screwdrivers, the unbagged scalers did not come into contact with patients.

    
    

14. Open cardboard boxes containing cotton rolls and sponges were present in the office at the time of the inspection. However, such items are delivered in this manner and are not maintained in sterile condition prior to receipt by the dentist. There is no problem leaving such items in the cardboard box until they are stored somewhere else.

    
    

15. Respondent always used an appropriate surface disinfectant. An alcohol dispenser was present at the time of the inspection because Respondent used alcohol for purposes other than to disinfect surfaces. For instance, he used alcohol for removing cement from instruments and making surfaces non- sticky.

    
    

16. Respondent maintained a log for the autoclave. The log was nearby the autoclave, although not beside it. There is no evidence that the log was inadequately maintained.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties. Section 120.57(1), Florida Statutes. (All references to Sections are to Florida Statutes.)

    
    

18. Section 466.028(1)(u) provides that the Board of Dentistry may take disciplinary action for the "Failure to provide and maintain reasonable sanitary facilities and conditions."

    
    

19. Section 466.028(1)(aa) provides that the Board of Dentistry make take disciplinary action for the violation of any rule promulgated under Chapter 455 or 466.

    
    

20. Rule 21G-25.003 sets forth the required sterilization and disinfection procedures.

    
    

21. Petitioner must prove the material allegations against Respondent by clear and convincing evidence. Ferris v. Turlington, 510 So. 2d 292 (Fla. 1987).

    
    

22. Petitioner has failed to prove the material allegations of the Amended Administrative Complaint.

RECOMMENDATION

Based on the foregoing, it is hereby

RECOMMENDED that the Board of Dentistry dismiss the Amended Administrative Complaint.

ENTERED on January 25, 1994, in Tallahassee, Florida.

ROBERT E. MEALE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings on January 25, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2794

Rulings on Petitioner's Proposed Findings

1-2: adopted or adopted in substance. 3-5: rejected as irrelevant.

6: adopted or adopted in substance.

7: to the extent contrary to the findings of fact, rejected as unsupported by the appropriate weight of the evidence.

8-11: rejected as recitation of evidence.

12: rejected as unsupported by the appropriate weight of the evidence. 13-15: rejected as recitation of evidence.

Rulings on Respondent's Proposed Findings

1-3 (except last two sentences): adopted or adopted in substance.

3 (last two sentences): rejected as irrelevant.

4-6 (except last sentence): adopted or adopted in substance.

6 (last sentence)-7: rejected as irrelevant. 8-9: adopted or adopted in substance.

10: rejected as subordinate.

11-16: adopted or adopted in substance. 17-18: rejected as subordinate.

19-38: adopted or adopted in substance. 39-42: rejected as subordinate.

COPIES FURNISHED:

William Buckhalt Executive Director Board of Dentistry

1940 North Monroe Street Tallahassee, Florida 32399-0792

J. Ashley Peacock, Staff Attorney Department of Business and

Professional Regulation Northwood Centre

1940 North Monroe Street Tallahassee, Florida 32399-0792

Michael K. Blazicek

Stephens, Lynn, Klein & McNicholas, P.A. 4350 West Cypress Street, Suite 700

Tampa, Florida 33607

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.

Docket for Case No: 93-002794

Orders for Case No: 93-002794