The Issue Whether Respondent Tessler has violated Florida Statute Section 466.24(3)(a), (c) and (d) and is guilty of misconduct, malpractice, or willful negligence in the practice of dentistry. Whether Respondent is guilty of receiving compensation because of a false claim intentionally submitted. Whether Respondent has failed to treat a patient according to acceptable dental standards and procedures.
Findings Of Fact Dr. Stephen W. Tessler, the Respondent, is a dentist licensed to practice dentistry under the laws of the State of Florida, Chapter 466, Florida Statutes, engaged in the practice of dentistry in his office located at 1245 NW 190th Street, North Miami, Florida. The Petitioner, State Board of Dentistry, filed an administrative accusation against Respondent Tessler, which was sworn to and subscribed in July, 1978. The accusation contained two counts, and the Respondent requested an administrative hearing. The hearing was first scheduled for October 20, 1978, but was continued upon motion of the Petitioner to January 10, 1979, and rescheduled upon motion of the Respondent to March 8, 1979. During the months of January, 1977, through mid-June, 1977, Ms. Rachel Dixon was a dental patient of Respondent Tessler. Ms. Dixon is a 32-year-old woman with a history of severe tooth and gum problems. She had prosthetic appliances and six (6) anterior crowns placed in her mouth ten (10) to fifteen (15) years ago in Pennsylvania. She had engaged a dentist, a Dr. Snyder in Hollywood, Florida, but had not seen him for some two (2) years prior to making an appointment with the Respondent for relief from pain and gum irritation, and for cosmetic improvement. Ms. Dixon is an unhappy dental patient with an inordinate fear of dentists, and her home dental hygiene care is inadequate. At the time Ms. Dixon engaged Respondent Tessler, she was in need of dental treatment for full-mouth gross peridontal inflammation and infected root canals in tooth number 30. She employed the Respondent for the purpose of providing dental treatment for peridontal disease, endodonic care of tooth number 30, recapping to the anterior teeth, and restoration of an upper right bridge on teeth number 3, 4 and 5. Ms. Dixon was referred to Dr. Hirschfield, an orthodontist in Respondent's office, for x-rays. Costs were discussed, a payment made, and a schedule of appointments planned. Thereafter, Ms. Dixon kept numerous scheduled and unscheduled appointments with the Respondent. Respondent Tessler replaced existing crowns on six (6) anterior teeth (number 6, 7, 8, 9, 10 and 11) with six (6) anterior foil porcelain jackets. In the presence of peridontal disease, Respondent attempted to replace an upper right bridge on teeth number 3, 4 and 5. Respondent was dissatisfied with the "final restoration" but used it instead of making a temporary one. He placed it in Ms. Dixon's mouth because it was better than a temporary restoration. Respondent had told Ms. Dixon that he would satisfy her and would redo the temporary restoration on her front teeth. He did the restoration a second time. Initially, Ms. Dixon was pleased, but later she was not satisfied because she felt pain upon contact with food, drink, or air that was either hot or cold. At the time of hearing no further work had been done in this area of her mouth, and she still complained of pain. On the second or third visit, within two (2) weeks of Ms. Dixon's initial visit, Respondent treated tooth number 30 by performing three (3) root canal treatments. After a number of weeks, Ms. Dixon continued to experience pain in this tooth. Respondent treated tooth number 30 again, reopening two (2) root canals to permit drainage and prescribing an antibiotic. During the course of the endodonic treatment on tooth number 30 an existing lower right bridge on teeth number 28, 29, 30 and 31 was damaged. Ms. Dixon did not return to Respondent for treatment, although she was in pain and attempted for two (2) or three (3) days to reach Respondent by telephone calls to his office. Thereafter, a week or ten (10) days later, Ms. Dixon sought the services of Dr. Marvin Levinson. She indicated to Dr. Levinson that she was not going to return to Respondent Tessler, that she suffered from pain, and that she was concerned about her appearance. Dr. Levinson examined her and referred her to Dr. Satovsky, an endodontist, for immediate relief of pain for a dental abscess, and to Dr. Garfinkle, a peridontist, for a complete peridontal work-up. It was Dr. Garfinkle's opinion that the caps placed by Respondent Tessler in the mouth of Ms. Dixon were placed in the presence of peridontal disease or that the caps caused the disease. He could not determine which came first. Dr. Garfinkle stated that Ms. Dixon was prone to peridontal disease and that she was an unhappy dental patient. Dr. Garfinkle could not comment on the condition of Ms. Dixon's mouth at the time of the treatment given by Respondent, inasmuch as he had not seen her until some eight (8) months had passed. Dr. Satovsky stated that on tooth number 30, which he treated subsequent to the root canal treatment done by Respondent Tessler, the canals were inadequately cleaned and enlarged. He stated that there were three (3) canals on the tooth, two (2) of which had the rods removed, and that he removed the third. He retreated the three (3) canals and alleviated the pain of Ms. Dixon. Dr. Satovsky could not state whether he thought the work of Respondent was negligent, inasmuch as he could not state what the tooth looked like when Respondent first saw it. Dr. Marshall Brothers, the Secretary/Treasurer of the State Board of Dentistry, found that the permanent type of restoration was adequate but not good for a temporary restoration. Upon his examination of Ms. Dixon's mouth, he found her general peridontal condition to be poor. Dr. Brothers could not determine whether her condition was a result of the restoration or existed prior to the restoration. He assumed the condition to be the one or the other because of the recency of the restoration. Respondent Tessler is a licensed dentist and a general practitioner, and is licensed to perform the dental work involved in this case. His charges for this work were substantial, but there was no evidence submitted that said charges were excessive or that Ms. Dixon misunderstood them. Alternative methods of treatment were discussed. The testimony and the evidence in this case show that Respondent worked within his ability as an average dentist. There was no showing of willful negligence, although Respondent's judgment may have been poor, and probably he should have referred Ms. Dixon to specialists. Affixing a bridge and crown work in the presence of gum disease is not the acceptable standard of care within the dental profession, and Respondent admits to that fact; however, he felt that it would improve the overall condition, and he had not released Ms. Dixon as a patient. Ms. Dixon was not pleased with Respondent's work or his charges ad, after attempting to make an appointment, left Respondent Tessler for another dentist. Ms. Dixon was insured through her husband's employer by a policy issued by Aetna Casualty and Surety Company. On January 31, 1977, Respondent Tessler submitted a pre-treatment estimate for work to be done consisting of porcelain-to-gold restorations on anterior teeth number 7, 8, 9, 10 and 11, and for a fixed bridge on teeth number 28, 29, 30 and 31, plus additional treatment in the amount of $2,420.00. The insurance company refused to pay for all treatment except for the fixed bridge on teeth number 28 through 31. On April 27, 1977, Respondent submitted the customary insurance treatment form to Aetna certifying that the bridgework had been performed and completed on April 27, 1977. Based on Respondent's representation, Aetna paid Respondent $649.50. The bridgework had in fact not been done, nor were the anterior crowns porcelain-to-gold restorations. Approximately one year later, Respondent refunded the overage to Aetna upon the request of the insurance company. Both parties submitted proposed findings of fact and memoranda of law, and Respondent submitted a proposed order. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order, they have been specifically rejected as being irrelevant or not having boon supported by the evidence.
Recommendation Based upon the violation as established, it is recommended that the license of Stephen W. Tessler, D.D.S., be suspended for a period of time not exceeding one year from the date of the Final Order. DONE and ORDERED this 12th day of June, 1979, in Tallahassee, Leon County, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor, Esquire 2516 Gulf Life Tower Jacksonville, Florida 32207 Stephen Mechanic, Esquire Suite 200 1125 NE 125th Street North Miami, Florida 33161
The Issue The issue for consideration in this matter is whether Petitioner, Cecelia Diaz, is qualified for licensure as a dentist in Florida.
Findings Of Fact At all times pertinent to the issues herein, the Board of Dentistry was the state agency in Florida responsible for the licensing of dentists in this state and the regulation of the dental profession. Petitioner is not licensed as a dentist in Florida. Petitioner was awarded a degree in General Dentistry at the University of Santiago de Cuba in October 1973. Thereafter, for almost fifteen years, she practiced dentistry in Cuba. In 1981 her husband was forced to leave Cuba for political reasons but, because of her advanced schooling, she was denied permission by the Cuban government to leave with him. In 1987, Petitioner was permitted to leave Cuba for the United States with her two daughters. In February 1991, for reasons not relevant to the issues here, Petitioner and her husband were divorced. She was forced to provide for her two daughters with no financial help from their father. At the time she was both working and studying to prepare for her dental licensing examinations. In May 1991, Petitioner sat for and passed Parts I and II of the National Examination. The following November, she presented her documents for the mannequin examination, the third part of the examination and the last one to be offered in Florida. Initially, Petitioner was denied permission to take the mannequin examination because, it was alleged, she did not have the requisite educational credentials. However, one week before the mannequin examination was to be given, she appeared before the Board of Dentistry and convinced the members to allow her to take the mannequin examination with the understanding her results would be withheld pending receipt of appropriate documentation from Cuba. Petitioner did not pass the mannequin examination, and, she contends, between 1991 and 1995, there was no way for a foreign dentist to be licensed as a dentist in Florida, upon testing by a mannequin examination. Only New York and California administered a mannequin examination, and Petitioner went to California to take a course to prepare herself for taking the mannequin examination in California. After taking the course, she returned to Florida to prepare to take the examination, and in March 1994, in furtherance of that aim, searched for patients who met the criteria needed for the examination to practice on. She admits this was a mistake. As a result of her actions, on April 1, 1994, she was charged in Circuit Court in Hillsborough County with practicing dentistry without a license. Her attorney recommended she accept a plea bargain with pre-trial intervention. Based on her successful completion of the pre- trial intervention program, the matter was closed without Petitioner having a conviction on her record. In 1995, Florida initiated a program for the licensing of foreign dentists and Petitioner was selected to participate in January 1996. She was in the program for two years at the University of Florida, assisting full time. In June 1998, Petitioner took the State of Florida Dentistry examination. She passed the written part of the examination and was given high passing grades on the clinical portion by two of the three examiners. The third clinical examiner, however, gave her a grade low enough to cause her to fail the clinical portion. Petitioner went to appear before a review panel in Tallahassee where, she claims, the examiner who did the review agreed with her on the discrepancy. The review examiner recommended, however, that though she could request a hearing, the hearing would be held after the next examination, and he felt, from looking at her work, that she could pass the examination. Therefore, she did not request a rehearing. Petitioner took the clinical portion of the dental examination in December 1998. She did not pass, though she feels she did well on all questions except that relating to what she referred to as the RCT, not otherwise defined. This one question caused her to fail the examination by .007 of a point. Petitioner considers it unusual that in the past, everyone who took the review course for foreign dentists at the University of Florida, the one she took, passed the exam. She did not. Ms. Diaz requested a review of the procedure for which she did not obtain a passing grade and found that the reviewer assigned to her was the same individual who had conducted the review of her prior effort. The reviewer began examining her work in a way which she did not consider fair, and when she tried to explain her procedure, he accused her of screaming at him. She requested the review be terminated and she left the office in tears. After that review, Petitioner filed an application for formal hearing, but before the hearing could be held, in May 1999 she received notification from the Board that she had passed and the hearing was not necessary. However, before a license was issued, in August 1999, Petitioner was again arrested in Hillsborough County and charged with practicing dentistry without a license. Petitioner admits that at the time alleged in 1999 she practiced dentistry without a license, and that in 1994 she also practiced dentistry without a license. Petitioner contends that she only began seeing patients in both instances when people from Cuba, who knew she was a dentist and who had no money for dental care, asked her for help. She claims to have taken little money for the work she did - only a small amount to pay for the supplies it was necessary for her to buy. A search of Petitioner’s home was conducted on July 28, 1999, pursuant to a search warrant. The investigator conducting the search found an appointment book, dental records, books and papers, in addition to a dental chair with a basin, as well as an x-ray machine and cabinets of dental equipment and supplies. Taped to some cabinets were before and after pictures of patients. Petitioner contends that at the time of the search she had all that equipment, which she had been given without pay by the custodian of a mall in which a dentist’s office had closed. The custodian was told by the landlord to get rid of the equipment, and he remembered Petitioner who had come into the mall earlier in search of a site for a dental office when she opened. At the time, the space had been rented to another tenant. However, the custodian remembered Petitioner and called her to ask if she wanted the equipment. She did, and he helped her transport it to her home. At no time did he take any money from Petitioner, nor did she do any dental work for him. Nonetheless, Petitioner was again convicted of practicing dentistry without a license. At its meeting in Tampa on January 8, 2000, the Board of Dentistry considered Petitioner’s application for licensure and voted to deny it based on her implication in two incidents of practicing dentistry without a license. Even though no adjudication of guilt was entered in either case, it was the official action which constituted being found guilty of those offenses regardless of adjudication which supported the Board action. Petitioner is currently working as a receptionist in an office making $300 per week working nine-hour days. Her current financial obligations for school loans and other debt exceeds $42,000. No evidence of any malpractice or inappropriate treatment was forthcoming.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry issue a license to practice dentistry in Florida to the Petitioner, Cecelia C. Diaz, such license being placed on probation for a period of five years under such conditions as the Board may specify. DONE AND ENTERED this 23rd day of June, 2000. In Tallahassee, Leon County, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 23rd day of June, 2000. COPIES FURNISHED: Edwin A. Bayo, Esquire Office of the Attorney General Department of Legal Affairs, The Capital, Plaza Level 01 Tallahassee, Florida 32399-1050 Dominic J. Baccarella, Esquire Baccarella & Baccarella, P.A. 4144 North Armenia Avenue Suite 300 Tampa, Florida 33607 William H. Buckhalt, Executive Director Board of Dentistry Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
Findings Of Fact The parties stipulated to certain facts as follows: Dr. Emory T. Cain is currently licensed as a dentist in Florida holding License No. 4260. Dr. Cain is subject to the juris- diction of the Florida State Board of Dentistry under Chapter 466, Florida Statutes, and the rules and regulations promulgated thereunder. Dr. Cain was served a copy of the Accusation filed by the Florida State Board of Dentistry and the Explanation of Rights and Election of Rights form in accordance with Chapters 120 and 466, Florida Statutes. Dr. Cain answered the allegations contained in the Accusation by indicating on the Election of Rights form that the alle- gations contained disputed issues of material fact and that he elected to have a formal hearing before a hearing officer appointed by the Division of Administrative Hearings. Dr. Cain does not wish to contest the allegations set forth in the Accusation and for the purposes of this hearing, said allegations shall be deemed as true. Additionally, there are further facts which are relevant to this proceeding. On or about October, 1975, Dr. Cain had in his employ, Ms. Charlotte Reavis, whose duties were to serve the normal function of a dental hygienist in the office. Ms. Reavis was not a dental hygienist and Dr. Cain was aware of this fact, having utilized Ms. Reavis as a dental assistant for some time prior to October, 1975. Ms. Reavis, in the performance of her duties, frequently scaled patients' teeth although she performed no deep scaling. The scaling included the re- moval of calculus deposits, accretions and stains from the exposed surfaces of the teeth and the gingival sulcus of patients. This practice continued from approximately October, 1975, until the date of receipt of the Accusation by Dr. Cain, except as noted below. This work was performed under the supervision and control of Dr. Cain who had knowledge of same and allowed sane to be per- formed in violation of Sections 466.02 and 466.24, Florida Statutes, and Chapter 21G-9, Rules of the Florida State Board of Dentistry. On or about November, 1975, Dr. Cain was notified by Harold Ritter, D.D.S. of Tallahassee, that there was some concern re- garding Dr. Cain's use of unauthorized per- sonnel to scale teeth in his office. Dr. Cain discussed this telephone conversation with his associate, Tom Delopez, D.D.S. and for approximately a month the manner in which Ms. Reavis performed her duties was altered. Also, Dr. Cain initiated efforts to locate a dental hygienist during this time. However, Ms. Reavis thereafter began scaling patients' teeth again. In January, 1976, Dr. Delopez initiated a discussion with Dr. Cain regarding the con- tinued use of Ms. Reavis to scale teeth. Dr. Delopez informed Dr. Cain that this practice was prohibited by law and expressed his opinion that it should be discontinued. Dr. Cain informed Dr. Delopez that Dr. Delopez could scale the teeth of the patients he treated but that Ms. Reavis would continue to clean and scale the teeth of other patients. After approximately one month, Ms. Reavis resumed scaling the teeth of patients treated by Dr. Delopez. Dr. Delopez's association with Dr. Cain terminated during September, 1976. On or about September, 1976, Carl Daffin, D.D.S. became employed by Dr. Cain as an associate. Dr. Cain did not disclose to Dr. Daffin that Ms. Reavis was not a dental hygienist and Ms. Reavis continued to perform the same duties, including the scaling of the teeth of patients, until Dr. Cain's receipt of the Accusation filed in this cause. The facts set forth above do show a vio- lation of Sections 466.02(4) and 466.24(e), Florida Statutes, and Chapter 21G-9, Rules of the Florida State Board of Dentistry. The Hearing Officer further finds: The Respondent Dr. Emory Cain enjoys a good reputation among his colleagues and among the medical community in Tallahassee. The consensus of the numerous witnesses produced by the Respondent is that Dr. Cain enjoys a high professional reputation. Dr. Cain also enjoys a reputation as an unselfish contributor to the civic well being of the community. There has been no complaint from the patients of the Respondent that the work done by Charlotte Reavis, a dental assistant employed by the Respondent, that Charlotte Reavis caused injury to a patient. The work done by a dental assistant and the training received by a dental assistant does not equal the work licensed to be done by a dental hygienist and does not equal the amount of training required of a dental hygienist. A deposition of Louis Pesce, D.D.S., taken on behalf of the Florida State Board of Dentistry was received and considered by the Hearing Officer subsequent to the hearing and depositions of Shelley Register, Jo Ann Barnes, and Elizabeth Barber taken at the incident of the Respondent Dr. Emory T. Cain were received subsequent to the hearing. The Respondent Dr. Cain made a minimum effort to find a dental hygienist to work in his office but was satisfied with the work done by the dental assistant, Charlotte Reavis, and continued to use her to perform a procedure lawfully relegated to a dental hygienist, that is the scaling of teeth. The proposed orders of the Petitioner and of the Respondent have been examined and considered in this Recommended Order.
Recommendation Suspend the license of Respondent Cain for a period not to exceed thirty (30) days. DONE and ORDERED this 30th day of June, 1977, in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: J. Michael Huey, Esquire Post Office Box 1794 Tallahassee, Florida 32302 Thomas F. Woods, Esquire Felix A. Johnston, Jr., Esquire 1030 East Lafayette Street, Suite 112 Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent was licensed to practice dentistry in the State of Florida, initially receiving his license in 1952. On March 28, 1974, respondent was arrested and issued traffic citation for the offense of driving while under the influence of alcoholic beverages (DWI). He was later summoned to appear to answer an information charging him with DWI and leaving the scene of an accident. On December 6, 1974, respondent pled guilty to both charges. On the same date Judge William A. Norris, Jr. of the Polk County Court entered his order withholding adjudication of guilt and placing respondent on probation for a period of eighteen (18) months. Among the conditions of his probation were the following: to live and remain at liberty without violating any law, and to abstain from the use of all alcoholic beverages including beer. On October 24, 1975, County Judge J. Tim Strickland issued a Rule to Show Cause why respondent's probation should not be revoked and sentence be entered upon the ground that respondent had been charged with disorderly intoxication on August 26, 1975, forfeited his bond on September 11, 1975 and was convicted of DWI on October 1, 1975 in the Lakeland Municipal Court. Pursuant to the Rule to Show Cause, Judge Strickland revoked respondent's probation, adjudicated him guilty of the original charges of DWI and leaving the scene of an accident, and sentenced respondent to six (6) months in the county stockade. This order dated November 14, 1975, provided that respondent was "to receive all necessary medication and regular checks of any medical or emotional condition he may have." While incarcerated in the Polk County Jail, respondent was permitted, by Order of Judge Strickland, to leave the jail for appointments and treatments by Dr. Edgar B. Hodge. On March 9, 1976, after respondent had served more than three months of his six-month sentence, Judge Strickland suspended the balance of respondent's sentence upon the conditions of good conduct, no future violations of law nor use of alcohol or drugs and continuance of psychiatric treatment as needed. Respondent is currently under the care and treatment of Dr. Edgar Hodge, a physician and psychiatrist. Dr. Hodge first saw respondent in 1965 in consultation for another doctor who was respondent's physician at the time. Dr. Hodge then diagnosed respondent's illness as manic-depressive psychosis -- a psychotic illness with mood swings from states of depression to states of manic behavior. Dr. Hodge did not become respondent's physician until October of 1975. It is Dr. Hodge's opinion that respondent's use of alcohol and prior violations of the law were results of the manic phase of his illness and that respondent is not an alcoholic. It was further felt that while respondent was knowledgeable of his actions while in the manic-depressive state, he was not, in the medical sense, responsible for his actions due to his illness. Dr. Hodge felt that prior to October of 1975, respondent had been deprived of adequate medical treatment. Now, it is Dr. Hodge's opinion that with the continued use of the medication lithium and continued medical treatment and supervision, respondent's illness can be kept under control and respondent can operate normally and competently as a member of the dental profession. Two witnesses who were dental patients of respondent were called to the stand to testify in his behalf. One witness stated that she was aware of respondent's conviction and incarceration, but had never been dissatisfied with his professional services as a dentist. The other witness was unaware of respondent's recent incarceration until the date of the hearing, but testified that he would continue to go to respondent as a dental patient. Neither witness had ever observed respondent in his office under the influence of narcotics or alcohol. Thereafter, thirteen witnesses adopted the testimony previously given by the two witnesses mentioned above.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the Florida State Board of Dentistry: find respondent guilty of misconduct in his personal affairs which would bring discredit upon the dental profession, in violation of F.S. s. 466.24(3)(a); and issue a public reprimand censuring respondent's acts of misconduct; and place respondent on probationary status for a period of three (3) years, with the condition that he continue to obtain medical and/or psychiatric treatment for his illness. Respectfully submitted and entered this 11th day of October, 1976, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: L. Haldane Taylor 605 Florida Theatre Building 128 East Forsyth Street Jacksonville, Florida 32202 Jack T. Edmund and John C. Wilkins, III Edmund and Wilkins P.O. Box 226 Bartow, Florida 33830
Findings Of Fact The Board had charged the Petitioner, Dr. Jules Klein, with violations of Sections 466.27(2) and 466.24(3)(g)(k) and (m), Florida Statutes. Dr. Alvin H. Savage was called by the Board to testify that he had seen Dr. Klein in the early spring of 1974. At that time Dr. Savage mentioned to Dr. Klein a sign on the side of the building in which Dr. Klein maintained his professional office. Dr. Savage identified Exhibits 1, 2, and 3 as photographs of said building and the signs at the building as they existed at the time. Dr. Savage testified that the sign bearing Dr. Klein's name was not objectionable and that he had received no complaints regarding said sign. Dr. Savage testified that he had received complaints about the sign as it existed on Dr. Klein's building at that time. The wording of that sign was "Longwood Dental Arts Center". Dr. Savage, on cross-examination, testified that Dr. Klein had invited him to his office to discuss Dr. Klein's status in the local professional association. During their discussion Dr. Savage testified that he had suggested to Dr. Klein that as Jews the community probably held them to a higher standard than other members of their profession, and that Dr. Klein should attempt to avoid even the appearance of anything questionable. Although it was suggested that Dr. Savage's comment was evidence of antisemitic discrimination, in the context of discussion as revealed by both Dr. Savage's and Dr. Klein's testimony, it would appear general advice from an older professional man who had practiced in the community for some time to a younger colleague. During this visit Dr. Savage raised the question of the sign on Dr. Klein's building and was advised by Dr. Klein that he would see the landlord of the building about altering the sign. Thereafter, Dr. Savage testified that the sign was changed, and identified Exhibit 5 and 6 as photographs of the building in which Dr. Klein's professional office was located and the amended sign which read, "Longwood Dental Bldg." Dr. Savage testified that he had received only two complaints regarding the amended sign during the preceding year and that one of the two complaints had been received shortly before the date of final hearing. On cross-examination, Dr. Savage opined that Dr. Klein's sign violated the statute by calling attention to the practice of dentistry by an individual, indicating further that if more than one dentist were practicing at Dr. Klein's office that it would not, in his opinion, be in violation of the statute. Dr. Savage based his opinion upon the Code of Ethics of the Florida Dental Association, Bearing Officer's Exhibit 10. Mr. John F. Plumb testified that he had taken the photographs introduced as Exhibits 5 and 6 on the morning of the hearing. He further testified that he visited Dr. Klein's office on March 12, 1975, April 29, 1975, and July 28, 1975. On both the March and April visits he had spoken with Dr. Klein and had found him very cooperative, although quite concerned about why his sign was an apparent violation while some of the signs in the locality, one of which was immediately across the street from his office, were not in violation. Mr. Plumb testified that he had discussed with Dr. Klein the provisions of Section 466.27(2), Florida Statutes, and the sign's apparent violation of its provisions. Mr. Plumb testified that during the March 12, 1975 visit with Dr. Klein that Dr. Klein indicated that he would modify the sign; however, during the April 29, 1975 visit, Dr. Klein indicated that he would not alter the sign on the advice of his attorney. Dr. Klein then testified in his own behalf. Dr. Klein testified that the sign, "Longwood Dental Arts Center" had been chosen originally because patients had indicated that they could not find his office. Dr. Klein testified that he had become truly concerned about the ability of persons to find his offices when dental supply salesmen reported difficulty in finding his offices. At that time Dr. Klein was practicing with his brother-in-law, Dr. Guy. Dr. Klein testified that having determined the need for a sign on the building, that he looked at the building signs on other buildings in the vicinity. Together with Dr. Guy, he determined that the building be named "Longwood Dental Arts Center" because he and Dr. Guy eventually intended to have am orthodontist in association with then. On cross- examination Dr. Klein testified that "medical arts" was not used because they had had no intention of having doctors of medicine practice there. Dr. Klein testified that he then contacted a sign maker who had dome other similar signs, who suggested the layout and size of the sign used on the building. Dr. Klein testified that after Dr. Savage's visit that he had received a visit from Dr. Franklin. Dr. Klein testified that he had the impression that the removal of the words "Arts Center" would eliminate the objection to the sign, and the sign was so modified. After the sign was changed, Dr. Klein testified that he was again contacted but that he had been unable to determine what was acceptable wording for the sign. He testified that in am effort to obtain guidance as to what was "professionally" acceptable he had contacted the American Dental Association and received a copy of their ethic advisory opinions. See Exhibit 16. This exhibit provides: "1. A building may be identified as the '...Dental Building,' except that the full name of the building cannot include the name of a participating dentist. The mane selected should not imply the practice of superior or more artful dentistry, imply any connection with any institutional or governmental unit or organization, or imply or specify the practice of any special area of dentistry. The full name selected shall be limited to the function of helping the patient locate the building. 2. A component society may determine community custom to prohibit dentists from using floodlights to draw attention to their nameplates on the outside of their private practice facilities. Component societies should be aware, futhermore, that the state dental practice acts ordinarily establish regulations on the use of office door lettering and signs." The Florida Dental Association rules would also allow the use of "Dental Building", but only where two or more dentists practice within the professional building. The basis for this distinction was explained by Dr. Savage, who stated that the provisions of Subsection k of Section 466.24(3) relating to".. calling the attention of the public to any person engaged in the practice of dentistry..." were not violated if two or more persons practiced in a building identified as a "Dental Building."
Findings Of Fact At all times pertinent to the allegations contained in the Administrative Complaint, the Board of Dentistry, (Board) was the state agency responsible for the licensing of dentists and the regulation of the dental profession in Florida. Respondent, Carl T. Panzarella, was licensed as a dentist in Florida holding license No. DN 0008948, and was in practice in Palm Beach County. Dr. Panzarella graduated from the University of Maryland Dental School in 1981 and practiced in Baltimore, Maryland for approximately 1 year after graduation. In the Spring of 1982 he moved to Florida and for several years, up through the Autumn of 1983, worked for other dentists. At that time, however, he decided to open his own office and, in the course of preparing to do this, met with a dental supplier who advised him as to the relative merits of the locations for dental offices he was considering in various areas within Palm Beach County. After consideration of several vacant offices, he ultimately opened his practice in an office building where he was the only dentist. Within a year, however, 5 or 6 other dentists had opened in competition, primarily in retail locations in the area, where they could advertise by large signs affixed to or adjacent to their buildings. Because Respondent's practice was located in a discrete office building, he was unable to do this and he found his practice was not growing as he had desired because of that inability to attract patients. As a result, he decided to advertise. In the Spring of 1989, some 5 years after he opened his practice, and being dissatisfied with the speed with which it was growing, he attended a practice-building seminar at which one of the presentations recommended starting a dental referral service after a check was first made with the Department to see what type of activity could be approved. Considering that a good idea, Dr. Panzarella contacted 2 other dentists who shared office space and who agreed to go in with him if the proposal could be approved by both the Department and their attorney. Dr. Panzarella then called the Department's office in Tallahassee at an information number listed in one of its brochures. He was advised by an unidentified individual that there were no laws in Florida which regulated dental referral services. His lawyer and the lawyer for the other 2 dentists with whom he was considering opening the service agreed. Based on what he believed was a clear path toward the opening of such a service, Dr. Panzarella then went back to the practice-building firm and retained it to design the advertisement which he then placed in the October, 1989 edition of the telephone yellow pages in his area. As soon as the advertisement came out, Dr. Panzarella began getting a number of phone calls from dentists practicing in the local area objecting to it. Some were reasonable and some were quite vituperative in nature. At his own request Dr. Panzarella subsequently went to a meeting of the North County Dental Society at which he described his service and answered all the questions put to him by the members about it. Dr. Peter A. Pullon, President of the Central County Dental Society but not a member of the North County Society, was also present at that meeting and was most aggressive in his questioning of Respondent about the advertisement. After asking numerous pointed questions and apparently not getting the answers he wanted, Dr. Pullon left the meeting before it was terminated. In substance, however, Dr. Panzarella was told, at or after the meeting, that in the opinion of the members of the North County Society, he was in violation of the Board's advertising rules and he would either have to cancel the advertisement or let all dentists practicing in the area join his referral service. After Dr. Pullon left the meeting, the members agreed to query the Department for guidance on the issue and be bound by the Board's response, but before that could be done, Dr. Pullon, on behalf of the Central County Society, filed the Complaint which culminated in this hearing. In the interim period between the North County Society's meeting and the filing of the Administrative Complaint, Dr. Panzarella and his associates attempted to get additional dentists to sign up with their service. No one wanted to do so, however, especially in light of the complaints about it that had been raised. Once the Complaint was filed, Respondent called the Department and spoke with Mr. Audie Wilson, asking him about the propriety of a dental referral service, and again was informed there were no rules of the Board of Dentistry governing dental referral services. The advertisement in issue here was placed by Dr. Panzarella and 2 other dentists who were practicing together. The telephone number listed in the advertisement rang in one of the two offices; in Respondent's office several days a week and in his associates' office several days a week. That procedure was followed for a period of time until they were able to determine the volume of the business, at which time the referrals were turned over to a commercial answering service to handle. The referral service was not organized as a separate legal entity. The 3 dentists in question got together as a group to do it, and all calls which came in were referred either to Respondent's office or to the office of the other two dentists. All three were general dentists, and if anyone called with a specialized problem beyond their degree of competence, they did not refer that person to another dentist but, instead, directed that person to call another referral service. Respondent and his associates had written procedures under which the referrals to their practices were regulated, such as: how the calls were to be answered; who was to get the referral; and how questions asked were to be answered. Nonetheless, no one was hired by Respondent or his associates to operate the service. Any calls were answered by the regular receptionist in the office which was receiving the calls on that day. They did, however, keep records as to from whom and when the calls were received and to which office of the participants they were referred. From this, it becomes clear that the service organized by Respondent and his associates was no more than an avenue to funnel patients to their respective dental practices and was not, in fact, a bona fide referral service such as is operated by the Palm Beach County Dental Association and by others who also advertise in the phone book. The advertisement complained of here indicates that all members of the referral service had been checked on through the American Dental Association, insurance carriers, dental schools, and had a number of years in practice. In reality, these checks were done by the Respondent's wife who merely verified that the participants had the credentials claimed. The inspections of offices and equipment referred to were done by Respondent visiting his associates' office and their visiting his, and references were provided to each other. Dr. Pullon attended the North County Society's meeting where Respondent explained his service and spoke with him and his associates. Dr. Pullon has been in practice in Florida for 11 years and is licensed in Florida and other states. He is a member of and accredited by numerous accrediting agencies and organizations. In his 11 years of practice he has become familiar with referral services and it is his understanding there are only two bona fide referral organization types. One charges the client for referral to any one of several dentists in various specialties who are signed up with it. The other is operated by a dental society which refers on the basis of membership in the society. Those societies are, however, open to membership by all licensed dentists in the community. One must belong to the society to be eligible for the society's referral service. The instant situation, in Pullon's opinion, was not a bona fide referral service but more an advertisement for the participants' practices. It has been so found. Dr. Pullon filed his complaint with the Department in his capacity as President of the Central County Dental Society. On the complaint form he listed several witnesses to the operation of the service, none of whom are members of the Central County Society. After attending the pertinent meeting of the North County Society, Dr. Pullon advised Dr. Krauser, the president of that society, that he intended to advise the Respondent of the problem and would ask for an opinion from the Department before asking Respondents to pull their advertisement if it was determined to be inappropriate. He noted that if they were so advised and thereafter refused to pull the advertisement, he would then file a complaint with the Department. However, after briefing the executive committee of the Central County Society after the North County Society meeting, the committee voted to report the matter to the Department immediately. This is the second complaint Dr. Pullon has filed with the Department concerning another dentist. The former was not related to dental advertising or to this Respondent. It resulted in no action being taken.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case imposing on the Respondent, Carl T. Panzarella, a reprimand and an administrative fine of $1,000.00. RECOMMENDED this 12th day of October, 1992, in Tallahassee, Florida. ARNOLD H. POLLOCK, 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 12th day of October, 1992. COPIES FURNISHED: Albert Peacock, Esquire Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 George P. Bailey, Esquire The Raquet Club Plaza 5160 Sanderlin, Suite 5 Memphis, Tennessee 38117 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792 William Buckhalt, Executive Director Department of Professional Regulation/Board of Dentistry 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered revoking respondent's license. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 16th day of May, 1988. WILLIAM J. KENDRICK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 1988. COPIES FURNISHED: Bill O'Neil, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Harold Braxton, Esquire 9100 South Dadeland Boulevard #406 Miami, Florida 33156 Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue Whether the Petitioner earned a passing grade on the clinical portion of the June, 1986 dental examination?
Findings Of Fact The Petitioner is a licensed dentist in the State of Louisiana. Her business address is 1006 Surrey Street, Lafayette, LA. The Petitioner attended Boston University and received a Bachelor of Arts degree in 1973. The Petitioner attended MaHerry Medical College and received a dental degree in 1978. The Petitioner received post-graduate training in dentistry during a residency at Sidham Hospital and received a Post-Graduate Certificate from Sidham Hospital in 1979. The Petitioner has taken approximately 200 hours of post-graduate courses in endodontics. From 1979 until 1982, the Petitioner practiced dentistry in the Bronx, New York. In 1982 the Petitioner relocated her practice to Louisiana. The Petitioner has passed the Northeast Regional Boards and the Louisiana State Board Exam. She is licensed to practice in approximately 20 states in the northeast United States and in Louisiana. The Petitioner has been an applicant for licensure in dentistry in the State of Florida. The Petitioner took the June, 1986 Dental Examination. The Petitioner was notified that she had been awarded an overall score for the clinical portion of the examination of 2.88. A score of 3.00 is the minimum passing score for the clinical portion of the examination. The Petitioner timely requested a review of her grade, filed objections and timely requested a formal administrative hearing. The procedures tested during the examination and the Petitioner's scores for the procedures are as follows: Amalgam Cavity Prep 2.33 Amalgam Final Restoration 2.66 Denture 2.87 Periodontal 3.66 Posterior Endodontics 2.66 Anterior Endodontics 2.00 Cast Class II Only Prep 3.00 Cast Class II Wax-Up 3.33 Pin Amalgam Prep 3.00 Pin Amalgam Final 2.00 Each procedure was graded by 3 different examiners. Each examiner graded a procedure independently. One of the following grades was assigned to each procedure by each examiner: - Complete failure; - Unacceptable Dental Procedure; - Below Minimal Acceptable Dental Procedure; - Minimally Acceptable Dental Procedure; - Better than Minimally Acceptable Dental Procedure; - Outstanding Dental Procedure. The procedures were graded in a holistic manner. A failing grade must include a "comment" justifying the grade of the examiner's grade sheets. The three examiners' grades for a procedure were averaged to determine the score for the procedure. The procedure scores were then individually weighted and the weighted scores were added to provide an overall clinical grade. This overall clinical grade must be at least 3.00 to constitute a passing grade. Examiners are experienced Florida dentists selected by the Board of Dentistry. They must have at least 5 years of experience as a dentist. Potential examiners attended a standardization course. The standardization course consisted of 8 to 12 hours of training, including a review of the criteria by which each procedure is required by rule to be judged. Some of the dentists who took part in the standardization exercise were designated as examiners and some were designated as monitors. Monitors were present during the examination with the candidates. They were instructed not to assist candidates during the examination. Subsequent to receiving notice that she had not received a passing grade on the June, 1986 examination, the Petitioner challenged the correctness of the scores she received on procedures 1, 2, 5, 6, 9 and 10. After receiving notice that her license application was being denied because the Petitioner did not receive a passing grade on the clinical portion of the June, 1986 dental examination, the Petitioner attended a review session with Dr. Simkin on September 10, 1986. The session was scheduled to last for 30 minutes. The session actually lasted longer than that. The session was recorded with a tape recorder. At the conclusion of the session the tape recorder was turned off. The discussion continued after the tape recorder was turned off, however. In total, the session and the continued discussion lasted for approximately 45 to 50 minutes. Procedure 1 Procedure 1 is an "Amalgam Cavity Preparation." It involves preparation of a tooth for a filling. This procedure is performed on an actual patient as opposed to a model tooth. The three examiners who graded the Petitioner's performance on procedure 1 awarded the Petitioner the following scores and made the following comments: Examiner 136 3 Outline form & unsupported enamel Examiner 129 2 Unsupported enamel Examiner 83 2 Outline form & depth prep. The primary problem with the tooth the Petitioner performed procedure 1 on and the reason for the failing grades of two of the graders was the failure of the Petitioner to insure that the amalgam base or floor was in dentin and not enamel. Whether the base or floor of the preparation is dentin can be determined by the color, dullness or feel of the dentin. It cannot be determined by x-rays. If an amalgam filling rests on enamel instead of dentin, the filling may be more sensitive to the patient, the enamel can crack and/or the filling may also crack. When the cracking of the enamel or filling may occur cannot be predicted. The Petitioner testified that the depth of the preparation was sufficient and has argued that such a finding is supported by notes which were exchanged between a monitor and the examiners. Petitioner's reliance on the notes which were passed between the monitor and examiners is misplaced. The first note was a note from the Petitioner to the examiners noting conditions she wanted the examiners to be aware of which were unrelated to whether the preparation was into the dentin. The monitor did not "approve" what the Petitioner wrote in her note; the monitor merely noted that the Petitioner had written the note. The other note was a note from one of the examiners to the Petitioner. That note indicated that the Petitioner needed to "lower pulpal floor into dentin." This note is consistent with the examiners' findings. If the note had been followed by the Petitioner and the pulpal floor had been lowered, the patient would have been protected from a potential hazard consistent with the Board's duty to protect patients being used in examinations. When the monitor instructed the Petitioner to "proceed" the monitor was not actually telling the Petitioner what steps she should take or showing any agreement or disagreement with the examiner's note. No regrade of procedure 1 is possible because the procedure was performed on a patient. If the grades the Petitioner received for this procedure had been improper, the Petitioner would have to take this portion of the test over. There is not justification for allowing the Petitioner to take procedure 1 over. The grades the Petitioner received were justified by the comments of the examiners and the difference in the grades of the 3 examiners is insignificant. Procedure 2 Procedure 2 is an "Amalgam Final Restoration." This procedure involves the filling of the tooth prepared in procedure 1 and the shaping of the surface of the filling to the natural surface of the tooth. The three examiners who graded the Petitioner's performance on procedure 2 awarded the following scores and made the following comments: Examiner 138 2 Functional anatomy, proximal contour & gingival overhang Examiner 150 3 Functional anatomy Examiner 48 3 Functional anatomy & margin Although gingival overhang can often be detected with x-rays, it is not always possible to detect with x-rays. In light of the score of 2 given by the examiner which noted "gingival overhang" as one of the examiner's comments, the overhang was probably very slight. It is therefore not unusual that the other two examiners did not note the existence of an overhang. Additionally, a slight gingival overhang could also be noted as "margin." Therefore, it is possible that examiner 48 noted the same problem with the tooth when the comment "margin" was marked that examiner 138 noted when examiner 138 marked the comment "gingival overhang." This procedure was performed on a patient and therefore could not be reviewed. The comments given by the examiners, however, are sufficient to justify the grades given, especially the failing grade. The grades the Petitioner received on procedure 2 were justified by the comments of the examiners and there was no discrepancy in the grades awarded sufficient to order a re-examination of this procedure. No regrade is possible or warranted. Procedure 5 Procedure 5 is a "Posterior Endodontics." This procedure involved the preparation of a molar tooth for a root canal. The procedure is performed on a model tooth and not on the tooth of a patient. The three examiners who graded the Petitioner's performance on procedure 5 awarded the following scores and made the following comments: Examiner 133 3 Overextension Examiner 129 3 Outline form & overextension Examiner 153 2 Outline form, underextension & pulp horns removed Over extension and outline form can indicate the same problem. According to Dr. Simkin, "As soon as you have pulp horns, you have underextension and the outline form is improper ..." It is not inconsistent for examiners to determine that a tooth has an overextension and an underextension. Both conditions can occur on the same tooth as a result of the same procedure. The tooth procedure 5 was performed on by the Petitioner did in fact have an overextension, as even Dr. Webber and Dr. Morrison, witnesses of the Petitioner, agreed. The tooth procedure 5 was performed on by the Petitioner also had pulp horns an underextension. The Petitioner's performance on procedure 5 was not graded according to an outdated technique. The Petitioner's testimony that she was looking for a possible fourth canal is rejected the area of over extension was too large and it was in the wrong area to be justified by a search for a fourth canal. The evidence also failed to prove that any of the examiners graded the Petitioner's performance on procedure 5 according to an outdated technique or that they did not take into account the need to search for a fourth canal. The grades the Petitioner received on procedure 5 were justified by the comments of the examiners and there was no significant discrepancy in the grades they awarded. Their comments and grades were supported by review of the model tooth. No regrade or change in score is justified. Procedure 6 Procedure 6 is an "Anterior Endodontics. " This procedure involves the preparation of an anterior, or front, tooth for a root canal. It is performed on a model tooth and not on the tooth of the patient. The three examiners who graded the Petitioner's performance on procedure 6 awarded the following scores and made the following comments: Examiner 153 2 Outlining form, underextension, & pulp horns removed Examiner 129 2 Outline form - too far incisally did not remove entire roof of chamber Examiner 133 2 Outline form & gouges The tooth that the Petitioner performed procedure 6 on has pulp horns (underextension), is overextended (bevelling of the entrance too severely) and has gouges. The grades the Petitioner received on procedure 6 were justified by the comments of the examiners and there was no discrepancy in the grades they awarded. The comments and the grades were supported by review of the model tooth. No regrade or change in score is justified. Procedure 9 Procedure 9 is a "Pin Amalgam Prep." This procedure involves preparation of an ivory model tooth for restoration. The tooth includes an area of damage or decay which is so extensive that a large portion of the tooth must be removed and the amalgam filling must be supported with a pin. The examiners who graded the Petitioner's performance on procedure 9 awarded the following scores and made the following comments: Examiner 153 3 Outlining form & pin placement Examiner 109 3 Retention form & unsupported enamel Examiner 133 3 Outline form & pin placement Although the Petitioner received a passing grade from all 3 examiners, she contended that she was entitled to a higher score of 4. The grades the Petitioner received on Procedure 9 were justified by the comments of the examiners and there was no discrepancy in the grades they awarded. The comments and grades were Supported by review of the model tooth. No regrade or change in score is justified. Procedure 10 Procedure 10 is a "Pin Amalgam Final." This procedure is the final step of the procedure begun in procedure 9. A different model tooth, one already prepared, is used for this procedure. The three examiners who graded the Petitioner's performance on procedure 10 awarded the following scores and made the following comments: Examiner 153 2 Proximal contour & margin Examiner 129 2 Functional anatomy & proximal contour Examiner 133 2 Functional anatomy & proximal contour Proximal contour involves the shape of the amalgam - it should follow the natural contour of the tooth. In this case, the tooth used by the Petitioner had a ledge area, where food can be trapped, and a slight overhang. Margin is where the filling meets the tooth. It should be smooth and it was not on the Petitioner's tooth. Functional anatomy primarily involves the occlusal portion of the tooth. The Petitioner failed to build up the lingual cusp, which was the cusp that had been removed. The grades the Petitioner received on Procedure 9 were justified by the comments of the graders and there was no discrepancy in the grades they awarded or their comments. The comments and grades were supported by review of the model tooth. No regrade or change in score is justified.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry issue a final order concluding that the Petitioner's grade on the clinical portion of the June, 1986, dental examination was a failing grade. DONE and ENTERED this 2nd day of September, 1987, in Tallahassee, Florida. LARRY J. SARTIN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of September, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4838 The parties have timely filed proposed recommended orders containing proposed findings of fact. It has been noted below which proposed finding of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Petitioners Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1-7. 4 and 7. This proposed finding of fact is generally irrelevant. The issue in this proceeding is whether the Petitioner successfully passed an examination. It is accepted, however, to the extent that it is relevant as to the weight which should be given to the Petitioner's testimony. The first two sentences are accepted in 9, 11 and 12 except to the extent that the proposed findings of fact pertain to the December, 1985 examination. The last sentence is rejected as irrelevant. The time for challenging the results of the December, 1985 examination had passed at the time of this proceeding and the Petitioner did not attempt to amend its Petition until the formal hearing had commenced. 5 12 and 14. 6 13-15. 7 10. 8-9 These proposed "findings of fact" are statements of issues or argument and not findings of fact. To the extent that any finding of fact is suggested, it is not Supported by the weight of the evidence. 10 12 and 19. This proposed finding of fact is irrelevant. See the discussion of proposed finding of fact 3, supra. 20. The Petitioner's score of 2.88 was not an "alleged" score and more than 30 minutes of the review session was recorded. 13-15 Irrelevant, unnecessary or not supported by the weight of the evidence. Not supported by the weight of the evidence. Irrelevant or not supported by the weight of the evidence. 18-20 Not supported by the weight of the evidence. Irrelevant. The first 3 sentences are accepted in 21 and 22. The rest of the proposed fact is not supported by the weight of the evidence. Irrelevant. 25. The monitor did not indicate agreement with the Petitioner's note. The monitor did take the note and the patient to where an examiner looked at the patient and an examiner did give a note to the monitor. See 25. The rest of the proposed fact is not supported by the weight of the evidence. 26 22. Not supported by the weight of the evidence. The first sentence is accepted in 25. The rest of the proposed fact is not supported by the weight of the evidence. Not supported by the weight of the evidence. 30 27. Not supported by the weight of the evidence. The first 3 sentences are hereby accepted. The rest of the proposed fact is not supported by the weight of the evidence. 29 and 30. The last sentence is irrelevant. 34-35 Not supported by the weight of the evidence. The first sentence is accepted in 33. The rest of the proposed fact is not supported by the weight of the evidence. Irrelevant and too broad. The first sentence is accepted in 34. The fourth and fifth sentences are accepted in 35. The rest of the proposed facts are not supported by the weight of the evidence. Not supported by the weight of the evidence. Irrelevant and not supported by the weight of the evidence. The first two sentences are accepted in 40 and 41. The rest of the proposed fact is not supported by the weight of the evidence. 42 44. 43 The first sentence is accepted in 45. The rest of the proposed fact is not supported by the weight of the evidence. 44 48. 45 The first sentence is accepted in 49. The rest of the proposed fact is not supported by the weight of the evidence. 46-47 Not supported by the weight of the evidence or irrelevant. Respondent's Proposed Findings of Fact 1 8-11. 2 12. 3 13 and 16-17. 4 18. 5-8 Hereby accepted. 9 13-14. 10 15. 11 19. 12-14 Unnecessary. Irrelevant. Argument. 15 21. 16 22. 17-19 Summary Of testimony. See 23-28. 20 29. 21 30. 22-25 Summary of testimony. See 31-33. 26 34. 27 35-36. 28-29 35. 30 Summary of testimony. See 36-39. 31 40. 32 41. 33-34 Summary of testimony. See 42-43. 35 44. 36 45. 37 Summary Of testimony. See 46-47. 38 48. 39 49. 40 Summary of testimony. See 50-53. 41-43 Unnecessary. Argument as to the weight of the evidence. COPIES FURNISHED: Pat Guilford, Executive Director Board of Dentistry Department of Professional Regulation Old Courthouse Square Building 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Chester G. Senf, Esquire Deputy General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida. 0750 Rex D. Ware, Esquire Fuller & Johnson, P.A. Ill North Calhoun Street Tallahassee, Florida 32302 =================================================================
The Issue The issues are whether Respondent owes a penalty for failing to obtain workers' compensation insurance for its employees and, if so, the amount of the penalty, pursuant to sections 440.10 and 440.107, Florida Statutes.
Findings Of Fact Respondent is a corporation that operated a dental practice at 16940 Southwest 94th Court, Miami, Florida, during the period in question, which is January 30, 2010, through January 30, 2013. The corporation became effective on October 25, 2007, and, as stipulated by the parties, became inactive on September 27, 2013. At all material times, Dr. Ronia Baker, a dentist licensed to practice in Florida, was an officer and shareholder of Respondent. Her brother, now deceased, served as the corporation's business manager during the period in question. Petitioner's investigator conducted a site visit on January 30, 2013. During the visit, the investigator asked Dr. Baker if Respondent maintained workers' compensation insurance on its employees. She replied that she thought so, but called the company's insurance agent to make sure. The agent informed Dr. Baker that Respondent did not have workers' compensation insurance. Dr. Baker promptly informed the investigator of this fact and apologized for this oversight. Respondent purchased workers' compensation insurance later the same day. After confirming that, based on the number of its employees, Respondent was required to have workers' compensation insurance, the investigator issued a Stop Work Order during the January 30, 2013, site visit. Cooperating fully with the investigation, Dr. Baker provided Petitioner with all Respondent's records covering employees from January 30, 2010, through January 30, 2013. From this information, Petitioner prepared the above-described Penalty Assessment, which determined a total gross payroll of $625,919.81. Respondent contends that it is not required to obtain workers' compensation insurance for two classes of employees listed on the Penalty Assessment: independent contractors and employees secured by Dental Staffing Service, which is a provider of dental office employees on a temporary or permanent basis. According to Respondent, two employees were independent contractors: Juan Morffi and Nelson Fleites. In terms of gross payroll, Respondent paid Mr. Morffi a total of $3721.67 during 2010 and 2011 and Mr. Fleites a total of $510.60 during 2011. The record is better developed as to Mr. Morffi's duties, but it appears that Mr. Fleites performed the same services under the same conditions of employment as Mr. Morffi. Mr. Morffi and Mr. Fleites worked as dental technicians who made dentures for Respondent's patients. At the start of the period in question, Respondent paid these dental technicians about $25 per hour for their services. Although Respondent later paid these technicians by the piece, Dr. Baker was unsure of when this change in compensation took place, so she could not say whether any of the above identified payments to these dental technicians constituted payments by the piece, rather than by the hour. Mr. Morffi and Mr. Fleites both had fulltime jobs, so they worked for Respondent as time permitted. Respondent gave Mr. Morffi and Mr. Fleites keys to the office, so they could work hours of their choosing, including while the office was closed. Mr. Morffi and Mr. Fleites did not see Respondent's patients. Their workplace was not visible to patients, so they wore clothes of their choosing, even if working during normal business hours. Mr. Morffi and Mr. Fleites provided their own tools, but also used Respondent's equipment in fabricating dentures. Dr. Baker did not dictate to these dental technicians how to make dentures, but insisted that their final products met her quality standards. According to Respondent, 12 employees were provided by Dental Staffing Services: Marilia Mareno, Rosana Perez, Tatiana Marrero, Soraya Mejia, Carmen Louima, Emmashea Telemaque, Jeannette Joe, Milessa Marquez, Vanessa Herrera, Zaidis Campos, Mercedes Paternina, and Gisela Robson. In terms of gross payroll, Respondent paid these employees a total of $25,348.15. Respondent's service agreement with Dental Staffing Service provides that the persons referred to Respondent "are not employees of" Dental Staffing Service, and Respondent shall pay these persons directly at the rates set by Dental Staffing Service. Respondent also holds Dental Staffing Service harmless from any liability that may arise under the agreement for persons referred pursuant to the agreement.
Recommendation It is RECOMMENDED that the Department of Financial Services enter a final order determining that Respondent is guilty of failing to secure the payment of workers' compensation and imposing a penalty of $3802.93. DONE AND ENTERED this 24th day of June, 2015, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE 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 24th day of June, 2015. COPIES FURNISHED: Alexander Brick, Esquire Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-6502 (eServed) Ronia Baker Beautiful Smiles South Miami, P.A. 15801 South Dixie Highway, Suite B Palmetto Bay, Florida 33157 Julie Jones, CP, FRP, Agency Clerk Division of Legal Services Department of Financial Services 200 East Gaines Street Tallahassee, Florida 32399-0390 (eServed)
