STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEPARTMENT OF HEALTH, BOARD OF DENTISTRY,
Petitioner,
vs.
GUSTAVO B. BORGES, D.D.S.,
Respondent.
/
Case No. 12-0005PL
RECOMMENDED ORDER ON REMAND
Pursuant to notice, a final hearing was held in this case on December 12, 2012, in Tallahassee, Florida, before Todd P. Resavage, an Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Adrienne C. Rodgers, Esquire
Tari Anne Rossitto-Van Winkle, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265
For Respondent: Randall M. Shochet, Esquire
Shochet Law Group 4897 Jog Road
Greenacres, Florida 33467
STATEMENT OF THE ISSUES
The issues in this case are whether Respondent's plea and adjudication of guilt to knowingly receiving child pornography, in violation of Title 18, United States Code, section 2252A(a)(2)(A), relates to Respondent's practice or ability to practice dentistry, violating section 466.028(1)(ll), Florida Statutes, by violating 456.072(1)(c), Florida Statutes, and if so, the penalty that should be imposed.
PRELIMINARY STATEMENT
On or about July 29, 2008, the Board of Dentistry issued an Administrative Complaint charging Respondent with violating section 466.028(1)(ll), Florida Statutes, by violating section 456.072(1)(c), Florida Statutes, by his plea and adjudication of guilt to knowingly receiving child pornography, in violation of Title 18, United States Code, section 2252A(a)(2)(A). Respondent timely requested a formal hearing to contest the allegations, and, on January 3, 2012, Petitioner Department of Health referred the matter to the Division of Administrative Hearings ("DOAH"), where it was assigned to Administrative Law Judge John G. Van Laningham.
The final hearing initially was set for March 13, 2012; however, Respondent, who was incarcerated, filed an Unopposed Motion to Continue. The same was granted and the final hearing was re-scheduled for June 6, 2012.
On May 2, 2012, Respondent filed a Motion to Continue the final hearing until July 9, 2012. Respondent's continuance was granted and the cause was re-scheduled for final hearing on July 9, 2012. Respondent requested another continuance of the matter on June 19, 2012, and the same was granted re-scheduling the final hearing for December 12, 2012. This case was subsequently transferred to the undersigned for all further proceedings.
The final hearing was held on December 12, 2012. Petitioner presented the testimony of Respondent, and Petitioner's Exhibit 1 was admitted, together with Joint Exhibits numbered J1-J13.
Respondent testified on his own behalf, and Respondent's Exhibits 1 and 3 were admitted, over objection. The admitted facts contained within the parties' previously filed Joint Pre- Hearing Stipulation were admitted into evidence.
The final hearing transcript was filed with DOAH on
January 16, 2013. On January 25, 2013, the parties filed a Joint Motion for an Extension of Time to File and Serve Proposed Recommended Orders to February 18, 2013, and the same was granted. Both Parties timely submitted Proposed Recommended Orders, which the undersigned has considered in the preparation of this Recommended Order on Remand. Unless otherwise indicated, citations to the Florida Statutes refer to the 2007 Florida Statutes.
FINDINGS OF FACT
At all times relevant to this case, Respondent Gustavo Borges, D.D.S., was licensed to practice dentistry in the state of Florida, having been issued license number DN 14716.
Petitioner Department of Health, Board of Dentistry (the "Department") has regulatory jurisdiction over licensed dentists such as Dr. Borges. In particular, the Department is authorized to file and prosecute an administrative complaint against a dentist, as it has done in this instance, when a panel of the Board of Dentistry has found that probable cause exists to suspect the dentist has committed a disciplinable offense.
On May 17, 2007, the United States Attorney for the Southern District of Florida filed a one-count Information against Respondent, alleging that, on or about April 29, 2006, Respondent "did knowingly receive child pornography, as defined in Title 18, United States Code, Section 2256(8)(A), that had been mailed, shipped, and transported in interstate and foreign commerce by any means, including by computer, in violation of Title 18, United States Code, Section 2252A(a)(2)(A)." The case was filed in the Miami Division of the United States District Court, Southern District of Florida, and docketed as Case No. 07-20396-CR-MGC.1/
On December 19, 2007, Respondent tendered a plea of guilty and was adjudicated guilty of one count of knowingly receiving child pornography in violation of 18 United States Code,
section 2252A(a)(2)(A). Respondent was sentenced to serve 71 months in the United States Bureau of Prisons, followed by five years of supervised release, and a $5,000.00 fine.2/
On or about August 7, 2008, Petitioner served Respondent with an Administrative Complaint charging that Respondent, by his plea and adjudication of guilt to knowingly receiving child pornography, in violation of Title 18, United States Code, section 2252A(a)(2)(A), violated section 466.028(1)(ll), Florida Statutes, by violating section 456.072(1)(c), Florida Statutes.
Respondent was released from prison on November 27, 2012.
Pursuant to the terms of Respondent's supervised release, he is precluded from committing any crime; unlawfully possessing controlled substances; possessing a firearm, destructive device, or any other dangerous weapon; and must comply with numerous other standard conditions.
In addition to the standard conditions of supervision, Respondent is mandated to comply with certain special conditions of supervision that are tailored to the crime for which he was adjudicated guilty. In general, he is mandated to have no unsupervised contact with minors; required to participate in a sex offender treatment program; restricted from the possession of sexually explicit materials; required to maintain a daily log of his computer activity; directed to refrain from accessing via computer any material that relates to the activity in which he was
engaged in committing his offense; and is required to maintain full-time, legitimate employment, subject to certain exceptions.
Moreover, as a result of his conviction, Respondent is classified as a sexual offender under section 943.0435(1)(a)1.a., Florida Statutes. As such, Respondent has registered as a sexual offender with the Florida Department of Law Enforcement, as required by section 943.0435(11), and must maintain such registration, subject to certain exceptions, for the duration of his life.
EXPERTS
Pursuant to the parties' Joint Pre-Hearing Stipulation, the parties stipulated the written report, dated November 19, 2012, and curriculum vitae (CV) of Amy Swan, Psy.D. The report and CV were stipulated into evidence by the parties as expert opinion in lieu of deposition or trial testimony. Dr. Swan is a Florida licensed psychologist.
Dr. Swan's report provides that Dr. Swan reviewed information provided to her by the Department of Health, met with Alexis Carpinteri, Federal Bureau of Investigation, and was telephonically present for Respondent's deposition. Dr. Swan's report sets forth her qualifications to review the complaint to include 10 years of service on a regulatory board [Board of Psychology] in the State of Florida and her current position as Chairman of the Probable Cause Panel of that board. Moreover, the
report provides that Dr. Swan has 24 years of experience working with sexual offenders, including child pornography offenders.
After providing a case summary, and a risk assessment section, Dr. Swan's conclusion is set forth in its entirety as follows:
It appears that Dr. G.B. has violated FSS 466.028(1)(c) as he has been found guilty of a crime related to the practice of dentistry.
If Dr. G.B. had not viewed child pornography in his office, it would be difficult to arrive at the conclusion that his crime was related to the practice of Dentistry. However, he did indeed, view these sexually deviant materials involving children on the computer at the office where he saw clients, including child clients. Dr. G.B. appears to have led an exemplary life in most areas, and it appears that he had excellent skills in dentistry.
However, the public safety is an issue of concern. There is no indication of any kind that Dr. G.B. is a risk to his adult patients. However, there are concerns about his child clients. Dr. G.B. is a mandated reporter of child abuse. Yet, he purchased and viewed these materials about minor children and failed to report that children were being abused.
Available records do not indicate that
Dr. G.B. has ever been convicted of a contact sexual offense. Moreover, Dr. G.B. denied ever having committed a contact sexual offense. Thus, his history resembles that of the non-contact Internet pornography sample. Therefore, his risk to commit a contact sexual offense is considered to be 2%, a non-contact sexual offense is 6%, and a child pornography offense is 3.4% between 1.5 and 6 years.
Dr. G.B.'s risk for a new offense of any kind is low. His risk for violating his probation after his release is low, at approximately 12% for being in the presence of children or
accessing a computer. Child pornography offenders are typically responsive to treatment and comply with the terms of their supervision and treatment both while incarcerated and in the community.
Research indicates that his risk to engage in a contact offense against a child is low and the risk to engage in future acts of child pornography is low. However, research by Michael Seto (2005) has indicated that possessing child pornography is diagnostic of pedophilia. While his risk for future deviant acts is low, the fact that he was viewing child pornography in his office where he also saw child patients, makes this an unacceptably high risk.
Dr. G.B. will have significant limitations on his practice by virtue of the special conditions of his practice, including no "unsupervised" contact with children.
However, in a busy practice, there are concerns for a lapse in supervision.
Moreover, when his probation ends there will be nothing to mandate the no unsupervised contact with children provision. Thus, while he does not pose a threat to adult clients, Dr. G.B. should be restricted from seeing child patients in his practice.
Pursuant to the parties' Joint Pre-Hearing Stipulation, the parties stipulated to the written report of Eric A. Imhof, Psy.D., dated November 19, 2012, and CV of Eric A. Imhof, Psy.D. The report and CV were stipulated into evidence by the parties as an expert opinion in lieu of deposition or trial testimony.
Dr. Imhof is a Florida licensed psychologist. Dr. Imhof did not personally examine Respondent. His report is based on a review of the records provided to him by Respondent's counsel. Dr. Imhof's
report provides a summary of the underlying criminal case, his review of Respondent's prior criminality, and an assessment of potential recidivism.
Dr. Imhof's report provides the following conclusion, which is set forth in full as follows:
Available information suggests Dr. Borges is a low risk to commit future sexual offenses, either a contact or child pornography offense. Although a diagnosis is deferred pending further evaluation, Dr. Borges presents without antisocial orientation or poor general self-management and has a supportive social system in the community, all of which suggest a reduced risk to commit sexual offenses in the future. Dr. Borges presents as amendable to mental health treatment based on available information and will benefit from treatment with a provider qualified by experience and training in the area of internet pornography offenders. Research indicates that those individuals who participate in community supervision in conjunction with mental health treatment focused on sex offense issues recidivate at lower rates than those who do not participate in such programs. Further, research indicates that those who complete a comprehensive treatment program are up to thirty-seven percent less likely to commit a sexual offense in the future. Given
Dr. Borges' low risk for future sexual offenses, his stability in the community, amenability for treatment, and demonstrated ability to comply with the stipulations placed upon him, he presents as a good candidate to engage in a closely supervised dental practice which is restricted to serving adult clients.
As the parties stipulated to the facts contained within the reports of Dr. Swan and Dr. Imhof, the facts contained therein are credited. While the facts contained in the above reports have
relevance to a recommended disposition or penalty, neither report is probative to whether the crime to which Respondent pled guilty relates to the practice of dentistry or to the ability to practice dentistry.
Pursuant to the parties' Joint Pre-Hearing Stipulation, the parties stipulated to the admissibility of the deposition of Dr. Hal Haering, D.M.D., as an expert, in lieu of live trial testimony pursuant to Florida Rules of Civil Procedure 1.390; but for the limited purpose of establishing whether the alleged violation is related to the practice of dentistry.
Dr. Haering has been engaged in the active practice of dentistry for 30 years. Dr. Haering opined that the crime of knowingly receiving child pornography "directly affects his ability to practice dentistry." Dr. Haering opined as follows:
That it's contrary, it's 180 degrees diametrically opposed in one room to purchase
– to use purchased materials of real people being abused, of children being abused, while trying to go in another room and now make ethical decisions involving your patients, whether it be during just your initial examination, all the way through treatment, your character and honesty. I don't see how one cannot affect the other. It speaks to the heart of integrity, honesty, good judgment, all of which are involved in the practice of dentistry.
Dr. Haering further opined that a lack of good character would render someone unable to practice dentistry. As an example, Dr. Haering noted that a dentist has a responsibility during
examination and diagnosis of a patient to look for any pathology, including signs of abuse. Dr. Haering opined that he could not comprehend how an individual could purchase images of people being abused and simultaneously look for patients exhibiting signs of abuse and refer them to the "appropriate agencies or caregivers." Dr. Haering's testimony that sets forth facts that are probative to the practice of dentistry are credited and admissible; however, to the extent that his testimony seeks to apply a legal standard or provide a legal interpretation of Florida law, said testimony is excluded.
LAY WITNESSES
William Montes, D.M.D., graduated from dental school in 1991, and has been a practicing endodontist for 19 years.
Dr. Montes has known Respondent, on a solely professional basis, since approximately 1995. Respondent referred patients to
Dr. Montes for root canal procedures. In his limited dealings with Respondent, Dr. Montes credibly testified that Respondent exhibited good character and honesty and found him to be a reliable dentist.
Maria Vidal Osorio worked with Respondent for approximately 12 years. She was employed as the office manager. Ms. Osorio testified that, in her opinion, Respondent was a great dentist, and very attentive to Respondent's patients. Ms. Osorio explained that the office contained three computers and all staff
had access to the computers. She never observed anything inappropriate on the office computers and noted that Respondent was never inappropriate with the office staff. She did not receive any complaints of inappropriate behavior concerning Respondent from his patients.
Leyla Irias-Sarduy worked with Respondent for approximately five years as a dental assistant. She credibly testified that Respondent was well-liked by his patients and that she never observed any inappropriate acts by Respondent. Despite lacking knowledge of the specific details of Respondent's criminality, Ms. Irias-Sarduy credibly testified that she would be uncomfortable allowing Respondent to perform dentistry on her own children.
Raul Alessandri has known Respondent, socially, since approximately 2003 or 2004. Mr. Alessandri and Respondent attended monthly prayer meetings and played soccer together. Mr. Alessandri conceded that his dealings with Respondent were "a little bit limited" and could offer no testimony concerning
Respondent's professional reputation. Judging from his interest in prayer group, Mr. Alessandri opined that Respondent would respect and try to strive to live by the tenets of his religion.
Martha Rodriguez worked with Respondent for approximately 10 years as a dental hygienist. During her tenure she did not witness Respondent commit any inappropriate behavior
or anything that might cause her to question Respondent's fitness to be a dentist. Addressing the issue of child pornography,
Ms. Rodriquez further opined that, "I just think that a person that thinks that way is sick and will never be cured." Nevertheless, Ms. Rodriguez opined that Respondent should be permitted to practice dentistry as long as the practice was limited to the adult population.
Jeoffrey Kiernan was Respondent's next-door neighbor.
Mr. Kiernan did not socialize frequently with Respondent and Respondent was not his dentist. Mr. Kiernan would not go to a dentist associated with child pornography; however, he believes in second chances.
Respondent has no prior disciplinary history concerning his dental license.
Respondent has provided volunteer dental services both locally and internationally, as well as local social work.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has personal and subject matter jurisdiction in this proceeding pursuant to sections 120.569 and 120.57(1), Florida Statutes.
A proceeding, such as this one, to suspend, revoke, or impose other discipline upon a license is penal in nature. State ex rel. Vining v. Fla. Real Estate Comm'n, 281 So. 2d 487, 491
(Fla. 1973). Accordingly, to impose discipline, the Department
must prove the charges against Dr. Borges by clear and convincing evidence. Dep't of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stern & Co., 670 So. 2d 932, 933-34 (Fla. 1996) (citing
Ferris v. Turlington, 510 So. 2d 292, 294-95)(Fla. 1987); Nair v. Dep't of Bus. & Prof'l Reg., Bd. Of Medicine, 654 So. 2d 205, 207
(Fla. 1st DCA 1995).
Regarding the standard of proof, in Slomowitz v. Walker,
429 So. 2d 797, 800 (Fla. 4th DCA 1983), the court developed a "workable definition of clear and convincing evidence" and found that of necessity such a definition would need to contain "both qualitative and quantitative standards." The court held that:
Clear and convincing requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Id. The Florida Supreme Court later adopted the Slomowitz court's
description of clear and convincing evidence. See In re Davey, 645 So. 2d 398, 404 (Fla. 1994). The First District Court of Appeal also has followed the Slomowitz test, adding the
interpretive comment that "[a]lthough this standard of proof may be met where the evidence is in conflict, . . . it seems to preclude evidence that is ambiguous." Westinghouse Elec. Corp. v.
Shuler Bros., Inc., 590 So. 2d 986, 988 (Fla. 1st DCA 1991), rev.
denied, 599 So. 2d 1279 (Fla. 1992)(citations omitted).
Disciplinary statutes and rules "must be construed strictly, in favor of the one against whom the penalty would be imposed." Munch v. Dep't of Prof'l Reg., Div. of Real Estate, 592
So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. Dep't of Bus.
& Prof'l Reg., 812 So. 2d 583, 583-84 (Fla. 3d DCA 2002); McClung v. Crim. Just. Stds. & Training Comm'n, 458 So. 2d 887, 888 (Fla.
5th DCA 1984)("[W]here a statute provides for revocation of a license the grounds must be strictly construed because the statute is penal in nature. No conduct is to be regarded as included within a penal statute that is not reasonably proscribed by it; if there are any ambiguities included, they must be construed in favor of the licensee."); see also Griffis v. Fish & Wildlife Conserv. Comm'n, 57 So. 3d 929 (Fla. 1st DCA 2011)(statutes
imposing a penalty must never be extended by construction).
Due process prohibits an agency from taking disciplinary actions against a licensee based on matters not specifically alleged in the charging instrument. See § 120.60(5), Fla. Stat. ("No revocation, suspension, annulment, or withdrawal of any license is lawful unless, prior to the entry of a final order, the agency has served, by personal service or certified mail, an administrative complaint which affords reasonable notice to the licensee of facts or conduct which warrant the intended action
. . . ."); see also Trevisani v. Dep't of Health, 908 So. 2d 1108,
1109 (Fla. 1st DCA 2005)("A physician may not be disciplined for an offense not charged in the complaint."); Marcelin v. Dep't of
Bus. & Prof'l Reg., 753 So. 2d 745, 746-747 (Fla. 3d DCA 2000);
Delk v. Dep't of Prof'l Reg., 595 So. 2d 966, 967 (Fla. 5th DCA
1991)("[T]he conduct proved must legally fall within the statute or rule claimed [in the administrative complaint] to have been violated.").
The Complaint alleges that Respondent "has violated Section 466.028(1)(ll), Florida Statutes (2007) by violating Section 456.072(1)(c), Florida Statutes (2007) by being convicted of Knowingly Receiving Child Pornography in Federal Court which relates to the practice of dentistry or his ability to practice dentistry."
Chapter 466 is a special statute concerned with the regulation of dentists, dental hygienists, and dental laboratories. Section 466.028 sets forth the grounds for discipline, as well as the action that may be taken by the Board of Dentistry upon a violation of a disciplinable offense.
Section 466.028(1)(ll), provides as follows:
The following acts constitute grounds for denial of a license or disciplinary action, as specified in s. 456.072(2):
* * *
(ll) Violating any provision of this chapter or chapter 456, or any rules adopted pursuant thereto.
Chapter 456 sets forth general provisions regarding regulation of health-care professionals. As noted above, the Department alleges Respondent violated section 466.028(1)(11), by a violation of section 456.072(1)(c). Section 456.072(1)(c), in turn, provides as follows:
The following acts shall constitute grounds for which the disciplinary actions specified in subsection (2) may be taken:
* * *
(c) Being convicted or found guilty of, or entering a plea of guilty or nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee's profession.
Pursuant to the findings of fact contained herein, Petitioner has adduced clear and convincing evidence that Respondent pled guilty to, and was ultimately adjudicated guilty of, one count of receiving child pornography in violation of
18 United States Code, section 2252A(a)(2)(A).
The remaining issue, therefore, is whether the crime to which Respondent pled guilty relates to the practice of dentistry or to the ability to practice dentistry. Section 2252A(a)(2)(A) of Title 18 is titled, "Certain activities relating to material
constituting or containing child pornography." This section provides in relevant part, as follows:
(a) Any person who—
* * *
(2) knowingly receives or distributes--
(A) any child pornography that has been mailed, or using any means or facility of interstate or foreign commerce shipped or transported in or affecting interstate or foreign commerce by any means, including by computer;
* * *
shall be punished as provided in subsection (b).
The practice of dentistry is defined in section 466.003, Florida Statutes, as follows:
"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.
It also includes dental service of any kind gratuitously or for any remuneration paid, or to be paid, directly or indirectly, to any person or agency. The term "dentistry" shall also include the following:
The taking of an impression of the human tooth, teeth, or jaws directly or indirectly and by any means or method.
Supplying artificial substitutes for the natural teeth or furnishing, supplying, constructing, reproducing, or repairing any prosthetic denture, bridge, appliance, or any other structure designed to be worn in the human mouth except on the written work order of a duly licensed dentist.
The placing of an appliance or structure in the human mouth or the adjusting or attempting to adjust the same.
Delivering the same to any person other than the dentist upon whose work order the work was performed.
Professing to the public by any method to furnish, supply, construct, reproduce, or repair any prosthetic denture, bridge, appliance, or other structure designed to be worn in the human mouth.
Diagnosing, prescribing, or treating or professing to diagnose, prescribe, or treat disease, pain, deformity, deficiency, injury, or physical condition of the human teeth or jaws or oral-maxillofacial region.
Extracting or attempting to extract human teeth.
Correcting or attempting to correct malformations of teeth or jaws.
Repairing or attempting to repair cavities in the human mouth.
Although the statutory definition of dentistry does not, on its face, specifically refer to acts involved in the crime of knowingly receiving child pornography, that does not conclude the analysis. Indeed, it is not necessary to evaluate Respondent's "technical ability" to practice dentistry, nor must Petitioner
necessarily demonstrate that Respondent's criminal acts are referenced in the statutory definition of dentistry. See Doll v. Dep't of Health, 969 So. 2d 1103 (Fla. 1st DCA 2007). In Doll,
the court held:
Several cases demonstrate that, although the statutory definition of a particular profession does not specifically refer to acts involved in the crime committed, the crime may nevertheless relate to the profession. In Greenwald v. Department of Professional Regulation, the court affirmed the revocation of a medical doctor's license after the doctor was convicted of solicitation to commit first- degree murder. 501 So. 2d 740 (Fla. 3d DCA 1987). The Fifth District Court of Appeal has held that although an accountant's fraudulent acts involving gambling did not relate to his technical ability to practice public accounting, the acts did justify revocation of the accountant's license for being convicted of a crime that directly relates to the practice of public accounting. Ashe v. Dep't of Prof'l Regulation, Bd. Of Accountancy, 467 So. 2d 814 (Fla. 5th DCA 1985). We held in Rush v. Department of Professional Regulation, Board of Podiatry, that a conviction for conspiracy to import marijuana is directly related to the practice or ability to practice podiatry. 448 So. 2d 26 (Fla. 1st DCA 1984). These cases demonstrate, in our view, that appellee did not err by concluding Doll's conviction was "related to" the practice of chiropractic medicine or the ability to practice chiropractic medicine. We therefore affirm appellee's actions finding appellant in violation of section 456.072(1)(c) and revoking appellant's license.
Doll, 969 So. 2d at 1106; see also Dep't of Health, Bd. of Medicine v. Carter, Case No. 12-1575, 2012 Fla. Div. Adm. Hear.
LEXIS 746 (Fla. DOAH Dec. 26, 2012)(citing Doll and concluding
that a guilty plea to possession of child pornography related to the practice or ability to practice medicine).
In analyzing whether a particular crime relates to the practice or ability to practice dentistry, the potential danger to the public is to be considered. The discussion of this concern in Rush v. Department of Professional Regulation, Board of Podiatry,
448 So. 2d 26 (Fla. 1st DCA 1984) is instructive. Specifically, the court held:
By confining the convictions upon which disciplinary action may be based to those directly related to the practice of podiatry, the Legislature has not limited the grounds for disciplinary action to only those crimes which relate to the technical ability to practice podiatry or to those which arise out of misconduct in the office setting. A conviction for a crime, such as importing marijuana, which presents a danger to the public welfare will be adequate basis for disciplinary action to be taken against a practitioner.
Rush, 448 So. 2d at 27.
Section 466.001, Florida Statutes, titled, "Legislative purpose and intent," provides in part:
It is the further legislative intent that dentists and dental hygienists who fall below minimum competency or who otherwise present a danger to the public shall be prohibited from practicing in this state. All provisions of this chapter relating to the practice of dentistry and dental hygiene shall be liberally construed to carry out such purpose and intent.
As noted above, as a result of his conviction, Respondent is classified as a sexual offender under section 943.0435(1)(a)1.a., Florida Statutes. Section 943.0435(12) addresses the potential risk sexual offenders pose to the public:
The Legislature finds that sexual offenders, especially those who have committed offenses against minors, often pose a high risk of engaging in sexual offenses even after being released from incarceration or commitment and that protection of the public from sexual offenders is a paramount government interest.
In Paroline v. U.S., 134 S. Ct. 1710 (2014), the Supreme Court acknowledged the devastating harm caused by child pornography. The Court's discussion is instructive:
Three decades ago, this Court observed that "the exploitive use of children in the production of pornography has become a serious national problem." New York v.
Ferber, 458 U. S. 747, 749, 102 S. Ct. 3348,
73 L. Ed. 2d 1113 (1982). The demand for child pornography harms children in part because it drives production, which involves child abuse. The harms caused by child pornography, however, are still more extensive because child pornography is "a permanent record" of the depicted child's abuse, and "the harm to the child is exacerbated by [its] circulation." Id., at 759, 102 S. Ct. 3348, 73 L. Ed. 2d 1113. Because child pornography is now traded with ease on the Internet, "the number of still images and videos memorializing the sexual assault and other sexual exploitation of children, many very young in age, has grown exponentially." United States Sentencing Comm'n, P. Saris et al., Federal Child
Pornography Offenses 3 (2012) (hereinafter Sentencing Comm'n Report).
Paroline, 134 S. Ct. 1710, at 1716-17.
The undersigned concludes that the crime Respondent pled guilty to, and was ultimately adjudicated guilty of—— receiving child pornography in violation of 18 United State Code, section 2252A(a)(2)(A)——relates to the practice of dentistry or to the ability to practice dentistry. Accordingly, Respondent violated section 466.028(1)(ll), by violating section 456.072(1)(c), as alleged in the Administrative Complaint.
The Board of Dentistry imposes penalties upon licensees in accordance with the disciplinary guidelines prescribed in Florida Administrative Code Rule 64B5-13.005. The disciplinary guideline for Respondent's offending conduct——a plea and adjudication of guilt to a crime that relates to the ability to practice dentistry——is set forth in rule 64B5-13.005(1)(c). The range of penalties for a first offense is a minimum penalty of a
$1,000 fine to a maximum penalty of a "denial or two years suspension, two years probation with conditions and $10,000 fine, or revocation."
Rule 64B5-13.005(2) provides direction in the application of aggravating and mitigating circumstances to the penalty guidelines, and provides in pertinent part, as follows:
(2) Based upon consideration of aggravating or mitigating factors, present in an
individual case, except for explicit statutory maximum and minimum penalty requirements, the Board may deviate from the penalties recommended in subsection (1) above and subsection (3) below. The Board shall consider as aggravating or mitigating factors the following:
The danger to the public;
The number of specific offenses, other than the offense for which the licensee is being punished;
Prior discipline that has been imposed on the licensee;
The length of time the licensee has practiced;
The actual damage, physical or otherwise, caused by the violation and the reversibility of the damage;
The deterrent effect of the penalty imposed;
The effect of the penalty upon the licensee;
Efforts by the licensee towards rehabilitation;
The actual knowledge of the licensee pertaining to the violation;
Attempts by the licensee to correct or stop the violation or refusal by the licensee to correct or stop violation;
Any other relevant mitigating or aggravating facto under the circumstances.
Having considered the potential aggravating and mitigating factors, the undersigned does not find compelling reasons to deviate from the guidelines, and, therefore, recommends
that the Board of Dentistry impose a penalty that falls within the
recommended range.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order finding Dr. Borges guilty of violating section 466.028(1)(ll), Florida Statutes, by violating section 456.072(1)(c), Florida Statutes, and revoking his license to practice dentistry.
DONE AND ENTERED this 12th day of March, 2015, in Tallahassee, Leon County, Florida.
S
TODD P. RESAVAGE
Administrative Law Judge
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Fax Filing (850) 921-6847 www.doah.state.fl.us
Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2015.
ENDNOTES
1/ Respondent's undisputed conduct that initiated the federal investigation and subsequent prosecution is contained within Exhibit J11.
2/ On September 4, 2008, Respondent's judgment was amended, nunc pro tunc to December 19, 2007, to reflect that Respondent was permitted to have supervised contact with minors.
COPIES FURNISHED:
Randall M. Shochet, Esquire Shochet Law Group
4897 Jog Road
Greenacres, Florida 33467 (eServed)
Sharmin Royette Hibbert, Esquire Department of Health
Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65
Tallahassee, Florida 32399-3265 (eServed)
Adrienne C. Rodgers, Esquire Department of Health
4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 (eServed)
Tari Anne Rossitto-Van Winkle, Esquire Department of Health
Prosecution Services Unit 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399 (eServed)
Susan Foster, Executive Director Board of Dentistry
Department of Health
4052 Bald Cypress Way, Bin C08 Tallahassee, Florida 32399-3258 (eServed)
Jennifer A. Tschetter, General Counsel Department of Health
4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
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.
| Issue Date | Document | Summary |
|---|---|---|
| Jun. 17, 2015 | Agency Final Order | |
| Jun. 16, 2015 | Agency Final Order | |
| Jun. 16, 2015 | Agency Final Order | |
| Jun. 16, 2015 | Agency Final Order | |
| Mar. 12, 2015 | Remanded from the Agency | Petitioner proved by clear and convincing evidence that Respondent violated section 466.028(1)(ll) by violating section 456.072(1)(c). |
| Aug. 29, 2014 | Mandate | |
| Aug. 13, 2014 | Opinion | |
| May 30, 2013 | Agency Final Order | |
| Mar. 11, 2013 | Recommended Order | Petitioner proved by clear and convincing evidence that Respondent violated section 466.028(1)(ll) by violating section 456.072(1)(c). |
DEPARTMENT OF HEALTH, BOARD OF MEDICINE vs CHRISTOPHER CARTER, M.D., 12-000005PL (2012)
MARK G. BOLLONE vs DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, 12-000005PL (2012)
DEPARTMENT OF HEALTH, BOARD OF PSYCHOLOGY vs ISAAC A. LEVINSKY, PH.D., 12-000005PL (2012)
DEPARTMENT OF HEALTH, BOARD OF OPTICIANRY vs DAVID A. BRESSETTE, L.D.O., 12-000005PL (2012)
