STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 96-4443

)

ARNOLD CLEMENT, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

On October 7, 1997, a formal administrative hearing in this case was held by telephone conference between Tallahassee and Clearwater, Florida, before Carolyn S. Holifield, Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Craig A. McCarthy, Esquire

Greg W. Files, Esquire

Agency for Health Care Administration Post Office Box 14229

Tallahassee, Florida 32317-4229 For Respondent: No appearance.

STATEMENT OF THE ISSUE

Whether Respondent failed to comply with a valid order of the Board of Dentistry and, if so, what disciplinary action should be taken against Respondent’s license to practice dentistry.

PRELIMINARY STATEMENT

On March 25, 1996, the Agency for Health Care Administration

filed an Administrative Complaint (Complaint) against Respondent, Arnold Clement, D.D.S., alleging violations of Section 466.028(1)(aa), Florida Statutes.

The Complaint alleged that Respondent violated the conditions of probation imposed by the Final Order entered in Department of Business and Professional Regulation Numbers 90- 03628, 90-04117, 0092038, and 0092039. Specifically, the Complaint alleged that Respondent failed to submit: (1) proof of the community service hours for the years ending December 31, 1994, and December 31, 1995; (2) satisfactory reports for two of the four quarters for the year ending December 31, 1994; and (3) quarterly reports for the year ending December 31, 1995.

Respondent timely challenged the allegations and requested a formal hearing. On September 27, 1996, the matter was forwarded to the Division of Administrative Hearings for assignment of an administrative law judge.

At the commencement of the hearing, Respondent’s Motion for Continuance (Motion), filed the day before the hearing, was considered. Petitioner opposed the Motion for Continuance and presented oral argument in support of its position. The Motion for Continuance was denied and the formal hearing proceeded as noticed.

At hearing, Petitioner presented the testimony of Audie B. Wilson, Sr., Program Administrator with the Department of Health. Petitioner offered and had admitted into evidence nine exhibits.

At Petitioner’s request, official recognition was taken of the statutes and rules governing the practice of dentistry in Florida that were in effect at times material to this proceeding.

Respondent failed to appear at hearing, and no evidence was presented on his behalf. A transcript of the proceeding was filed on October 14, 1997. Petitioner timely filed proposed findings of fact and conclusions of law. Respondent filed no proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner, the Department of Health, is the state agency charged with regulating the practice of dentistry pursuant to Chapters 455 and 466, Florida Statutes. However, at the time the complaint in this cause was filed, this responsibility was assigned to the Agency for Health Care Administration. At the time the Final Order which is the subject of this proceeding was entered, this responsibility was assigned to the Department of Business and Professional Regulation.

2. Respondent, Arnold G. Clement, is now and was at all times material hereto a licensed dentist in the State of Florida, having been issued license number DN 0002500. Respondent’s last known address is 1405 Lennox Road East, Palm Harbor, Florida 34683.

3. On April 22, 1993, the Department of Business and Professional Regulation, Board of Dentistry, entered a Final Order in DPR Case Nos. 90-3628, 90-4117, 0092038, and 0092039

   (Final Order), a prior disciplinary action against Respondent. The Final Order, which incorporated by reference an Order issued on February 16, 1993, and a Stipulation approved August 31, 1991, set forth the conditions of Respondent’s probation. Respondent’s signature is on the Stipulation and copies of the Order and Final Order were mailed to counsel representing Respondent in that proceeding. Respondent was aware of the Final Order and Order entered by the Department of Business and Professional Regulation.

4. The Final Order suspended Respondent’s license for six months, and after the period of suspension, placed Respondent’s license on probation for three years. As a condition of probation, Respondent was required to: (1) pay an administrative fine of $2,000; (2) perform ninety-six (96) hours of community service during each year of probation; and (3) complete sixty

   (60) hours of continuing education in removable prosthetics.

   
   

5. Prior to the end of his six-month suspension period, Respondent was required to submit for Board approval, a written practice plan that provided for supervision by a Board approved licensee and for submission to the Board of written reports by the supervising licensee. During the probationary period, Respondent’s practice was restricted to work involving removable prosthetics.

6. On or about October 23, 1993, and December 7, 1993, respectively, Respondent submitted to the Board the required

   Medical Practice Plan and Dental Practice Plan. These plans were apparently approved by the Board.

7. By letter dated February 15, 1997, the agency reiterated the terms and conditions of Respondent’s probation. That letter provided in pertinent part the following:

   Pursuant to the final order filed April 22, 1993, the “hearing” held October 23, 1993 concerning the “Dental Practice Plan”, and the subsequent receipt and review of this practice plan, please note the following:

   * * *

   Probationary Conditions - 60 hours continuing education in “Removable Prosthetics. Quarterly Written Reports from Woodrow D. Wheetley, DDS, effective March/94, and continuing on a three (3) month quarter thereafter, ending December/96.

   Submit proof of 96 hours community service, with the first report due December/94, and continuing through December each year ending in 1996. We are requesting “Proof” be in the form of a notarized affidavit from the community service organization.

   
   

   The required fee of $2,000.00 is due April 24, 1994. It is your responsibility to assure that all reports are submitted timely and as specified in the final order filed April 22, 1993. . . .

   
   

8. In the Medical Practice Plan submitted by Respondent on October 23, 1993, he agreed to:

   1. egin doing his community service work which if approved by the [B]oard would consist of seeing indigent patients at Dr. Wheetley’s office for either no fee or for the cost of the dentures only.

      
      

9. In the Dental Practice Plan that Respondent submitted to the Board, he agreed to:

   1. egin doing his community service work consisting of removable prosthetics, which if approved by the [B]oard would consist of seeing patients referred to Dr. Clement by the Department of Health and Rehabilitative Services, Pasco Community Health Agency or any other agency as directed by the Board of Dentistry. . . .

      
      

10. Respondent failed to submit the requisite proof that he performed ninety-six hours of community service hours for the years ending December 1994 and December 1995. In fact, no such proof was submitted at any time during Respondent’s during entire probationary period.

11. Respondent failed to comply with the requirements of the Final Order relative to submission of quarterly written reports. Pursuant to the terms of Respondent's probation, these reports were to be submitted quarterly beginning March 1994, and continuing thereafter on at three month intervals, with the last report due December 1996. While these quarterly reports were to be prepared by the dentist supervising Respondent, it was Respondent’s responsibility to assure that all reports were timely submitted.

12. In 1994, only two quarterly reports, not the required four, were submitted on Respondent’s behalf. The first report, due the end of March 1994, was not received by the Board until May 6, 1994. The second report was due at or near the end of June 1994, but was not submitted to the Board until November 1994. Thus, the only two quarterly reports received by the Board in 1994, were untimely submitted. Moreover, no quarterly reports

    were submitted by or on behalf of Respondent during the 1995 and 1996 calendar years.

13. If Respondent had complied with the terms of and conditions of his probation as set forth in the Final Order, his probationary status would have ended in December 1996.

14. Respondent violated the provisions of the Final Order entered in DPR Case Nos. 90-04117, 90-03628, 0092038, and 0092039 by failing to comply with the terms and conditions of his probation.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes.

16. Pursuant to Section 466.028(2), Florida Statutes, the Board of Dentistry is empowered to revoke, suspend, or otherwise discipline the dentistry license of any licensee in Florida found guilty of any act enumerated in Section 466.028(1), Florida Statutes.

17. In the Complaint, Petitioner has charged Respondent with violating Section 466.028(1)(aa), Florida Statutes, by failing to comply with the terms of the Final Order of the Board of Dentistry in a prior disciplinary action. That section provides:

    (1) The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:

    * * *

    (aa) The violation or the repeated violation of this chapter, chapter 455, or any rule promulgated pursuant to chapter 455 or this chapter; the violation of a lawful order of the board or department previously entered in a disciplinary hearing; or failure to comply with a lawfully issued subpoena of the board or department.

    
    

18. Disciplinary licensing proceedings are penal in nature. State ex rel. Vining v. Florida Real Estate Commission, 281 So. 2d 487 (Fla. 1973). Thus, in this disciplinary license case, to prevail, Petitioner must prove the facts upon which the alleged violations are based by clear and convincing evidence. Ferris v. Turlington, 570 So. 2d 292 (Fla. 1987).

19. Petitioner has met its burden in this case. The evidence established by clear and convincing evidence that Respondent failed to substantially comply with the terms of the probation imposed by the Final Order. First, Respondent submitted only two of the twelve quarterly reports required pursuant to the Final Order. Second, Respondent submitted no proof of completing the community service requirement for each of the three years he was on probation. This evidence was undisputed by Respondent. Consequently, Petitioner has proved two violations of a lawful order of the Board in violation of Section 466.028(1)(aa), Florida Statutes.

20. Having concluded that Respondent violated the provisions of the Final Order, he is thereby, subject to disciplinary action by the Board. The question remains as to what penalty is appropriate.

21. Section 466.028(2), Florida Statutes, enumerates the available penalties for such a violation. Penalties may include suspension, revocation, imposition of an administrative fine, placement of the licensee on probation, or restricting the authorized scope of practice.

22. In the previous disciplinary proceeding, the Board took actions which were designed to rehabilitate the Respondent.

These actions apparently did not accomplish their purpose in that Respondent failed to comply with the terms of the Final Order.

It is clear that the imposition of another fine would be ineffective here, as would a reprimand. Given that Respondent has been previously suspended for six months and placed on probation for three years, a more stringent penalty is required in this instance.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner, the Department of Health, Board of Dentistry, enter a Final Order finding that Respondent violated a lawful order of the Board and revoking his license to practice dentistry.

DONE AND ENTERED this 3rd day of December, 1997, in Tallahassee, Leon County, Florida.

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUMCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1997.

COPIES FURNISHED:

Craig A. McCarthy, Esquire Greg W. Files, Esquire Thomas E. Wright, Esquire

Agency for Health Care Administration Office of the General Counsel

Allied Health

Post Office Box 14229 Tallahassee, Florida 32317-4229

Arnold G. Clement, D.D.S. 1405 Lennox Road East

Palm Harbor, Florida 34683

Angela T. Hall, Agency Clerk Department of Health

1317 Winewood Boulevard Building Six

Tallahassee, Florida 32399-0700

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 96-004443

Orders for Case No: 96-004443