Findings Of Fact At all times pertinent to the issues herein, the Florida Department of Management Services, succeeded by the Governor's Commission on Minority Economic and Business Development, was the state agency responsible for the certification of minority or women owned businesses for various state agencies in Florida. Test Lab, Inc. was started in 1972 by Mrs. Cornwell and her husband with another couple, the Orofinos. Initially, Mrs. Cornwell was the treasurer of the corporation. Her duties included opening the office and laboratory, maintaining all files, billing, typing reports and doing some of the actual tests. In short, she did anything which needed to be done. Over the years, the Cornwells bought out the Orofinos. From the date of the formation of the corporation in 1972, the 400 shares of stock owned by the Cornwells were in Mr. Cornwell's name as agent for Mrs. Cornwell and himself. In 1976, the Cornwells purchased an additional 350 shares of the corporation which gave them a 750 share interest - equal to that of the Orofinos. The money for this purchase came from an inheritance Mrs. Cornwell received from a longtime friend. When the Orofinos retired in 1986, the corporation purchased their 750 shares which are currently held in the corporation treasury. Before that time, however, in 1990, Mr. Cornwell became seriously ill and could no longer effectively operate the company. Because of her technical experience, knowledge of the business and her administrative abilities, Mrs. Cornwell was elected President and Chief Operating Officer of the corporation and manages it. At the present time Mrs. Cornwell owns 1159 shares of the stock of Test Lab, Inc., which constitutes 93 percent of the outstanding shares. Her daughter, Lori Giese, owns 91 shares of stock, which represents a 7 percent interest. The lease on the building currently occupied by the company, and all prior leases for the property, were signed by Mrs. Cornwell. The occupational licenses issued by the City of Tampa and Hillsborough County show Mrs. Cornwell as owner of the business. On April 24, 1991, the Cornwells loaned Test Lab $8,000 from their joint account. The source of this money, however, came from real estate commissions earned by Mrs. Cornwell and from rental income from the house she received in the estate which was left to her in the inheritance mentioned previously. Mrs. Cornwell, is the individual who purchased most of the equipment utilized by the company. Her daughter, Lori, has authorization to buy some computer eq uipment. Mrs. Cornwell makes all the insurance purchases now, but is teaching her daughter how to do it and ultimately intends to turn this aspect of the business over to her. Only Mrs. Cornwell or Lori have authorization to sign checks. Mrs. Cornwell has taken numerous courses in construction and construction management. She has reviewed all the same educational tapes that were bought to teach technicians from the laboratory, and she believes she can do most of the same tests as well as her people. One of the courses she took taught her to do estimating, and she is also certified as a concrete field testing technician by the American Concrete Institute. Test Lab, Inc., under Mrs. Cornwell, has been approved by the Florida Department of Transportation, by Hillsborough County, by the City of Tampa, by the Hillsborough County Aviation Authority, by the Hillsborough County School Board, by Orange County and by the City of Orlando as a disadvantaged business enterprise. The evidence presented at the hearing indicates that Mrs. Cornwell runs the business. She is the individual who sets the salaries for all employees. She does all the hiring and firing, and determines those among the employees who will be promoted. Only 10 percent of the work done by Test Lab requires licensed engineers. Most of the work done by the company is the preparation of reports of facts: technical results which do not require the signature of a professional engineer. Approximately 80 percent of the business is repeat business. Most of the work done for these companies does not require the preparation of a contract or the submittal of a proposal. The business is secured by a phone call from a customer soliciting Test Lab, Inc., and the work is done, or a purchase order is telefaxed to Test Lab by the soliciting company. Mrs. Cornwell handles the major clients and makes the final decision as to what bids are submitted. She often turns work down because of its distance from their location or for reasons based on her concern that Test Lab doesn't have the equipment to do the job properly. She is the individual who prepared all the manuals which are used by employees in the conduct of the company's business. Tech Lab, Inc. is licensed as a registered engineering firm by the Florida Department of Business and Professional Regulation. In order for this to occur, a professional engineer is required to be on staff to sign that documentation which requires the certification and signature of a professional engineer. Admittedly, Mrs. Cornwell is not an engineer. At this time, she has two registered engineers employed, Mr. Rose and Mr. Knauss. Over the years, on several occasions, Tech Lab has had to borrow money. Ms. Harrelson, the Vice President and Branch Manager of the Central Bank of Tampa, has known Mrs. Cornwell since August 1982, when Mrs. Cornwell was looking for a line of credit for her business. Mrs. Cornwell at that time indicated she was owner and financial officer of the corporation, and was seeking $75,000 which she and Mr. Cornwell, as an individual, guaranteed. Mrs. Cornwell guaranteed as president of the company and as an individual. The line of credit was issued in the amount requested and since that time has been increased to $100,000. In setting up the line of credit, Ms. Harrelson dealt only with Mrs. Cornwell. Documents on file at the bank, and offered into evidence at the hearing, show Mrs. Cornwell as President, principal stockholder, and one of the founders of the corporation. Mrs. Cornwell also purchased vehicles for Test Lab valued at $84,000, in 1994, which she financed at Central Bank. On this loan, she signed as President of the corporation and guaranteed the loan individually as well. On this occasion, she was the only guarantor. As of the date of the hearing, the loan commitments signed by Mrs. Cornwell on behalf of Test Lab stand at $180,000. Mr. Cornwell was never involved in any of the negotiations for this credit. Ms. Harrelson has no doubt that Mrs. Cornwell is chief operating officer of the company based on the dealings she has had with her. Mr. Rodriguez, a CPA, has worked for the company for approximately 4 to 5 years. He was initially retained by Mrs. Cornwell and does the quarterly financial statements, the year- end tax returns and is a consultant to the company on financial matters. He has, at times, represented the company at IRS audits, and at these audits only Mrs. Cornwell, her daughter and a female employee were present with him and the auditor. Whenever he consults on company business, he deals with Mrs. Cornwell. He sees her approximately 2 or 3 times a quarter on a professional basis. When he receives a request for audit from the IRS, and when he prepares the tax returns, he seeks out Mrs. Cornwell for the information and has always dealt with her. The current proposal for the pension plan for the company was initiated by Mrs. Cornwell. All decisions on the pension plan details were made by Mrs. Cornwell and her daughter, and Mrs. Cornwell is the administrator of the plan and signed all the documents necessary to implement it. On all matters with which Mr. Rodriguez has dealt with Mrs. Cornwell, she has consistently demonstrated her knowledge of the business operations. She is fully familiar with them and their technical aspects, and in his opinion, she is clearly in control of the company. Martha Replogle, the marketing representative for the Department of Labor's Job Service Division in the Tampa area, works with leading employers in the community. She has been doing this since 1989, and as a part of her routine work, deals with Test Lab. The relationship was initiated by Mrs. Cornwell in 1989 or 1990, when Ms. Replogle was solicited for assistance in filling some positions available at the company. All references for job placement are sent to Mrs. Cornwell who interviews and who does the hiring. Mrs. Cornwell also sits on the advisory board of the Job Service office in Tampa made up of owners and managers of local businesses. Ms. Replogle has no doubt that Mrs. Cornwell makes the hiring decisions for Test Lab. Whenever hirings were anticipated, Mrs. Cornwell would call with the list of requirements and would follow up with a report of the specific strengths or faults of those candidates sent over. All dealings that Ms. Replogle had with Test Lab were with Mrs. Cornwell. All decisions on hiring and firing had to be made by Mrs. Cornwell and inquiries to others at the firm were met with referrals to Mrs. Cornwell. Mrs. Cornwell kept regular working hours and was there whenever Ms. Replogle would stop by. Even Mr. Cornwell and the engineers with whom she talked would refer Ms. Replogle to Mrs. Cornwell for hiring and firing decisions. Charles W. Kristech owns Pinellas Scale Service and repairs, calibrates and certifies weighing instruments. He has been in this business for approximately 8 years and Test Lab has been one of his clients since January 1993. Mr. Kristech was initially contacted by Mrs. Cornwell who wanted him to check all their equipment and bring it up to state standards. He went to Test Lab's facility and evaluated all the company's scales. Some were beyond repair, some were repairable, and some were OK. He did what he could and gave Mrs. Cornwell the certificates. Mrs. Cornwell is the one who showed him what scales to look at. She seemed to know what equipment she had and what tolerances she needed. She corrected the tolerances he originally used and clearly had a technical knowledge of the scales used in the laboratory. She appeared familiar with their proposed use, their capacity and their tolerances, and was quite specific in her requirements and explanations. He never got any technical information from any of the engineers. Since then he has calibrated the company's scales twice a year. Coincidentally, when he purchased a used truck from Test Lab, he negotiated the deal with Mrs. Cornwell, and any dealings he has had with the company have been with her. Decisions on repair or discarding equipment were made by Mrs. Cornwell alone, and she did not have to ask anyone else for permission to do so. Mark Scime, Vice-president of Hammer and Howell Commercial Builders, has done business with Test Lab for about 8 1/2 years and has known Mrs. Cornwell very well for at least 5 of those years. To his knowledge, she is the President and owner of the company which does tests of concrete and soils for design and construction products of his firm. Whenever there is a question on a report done by Test Lab, he deals with Mrs. Cornwell or she refers him to an engineer in the company. She can deal with his engineers on a technical basis and he has seen her in problem resolution situations. On those occasions, it was very clear to him that Mrs. Cornwell was in charge. He also dealt with the prior management of Test Lab, and the difference in management when Mrs. Cornwell took over was significant and evident. He has been to Test Lab's facility 5 or 6 times, and there is no doubt in his mind that Mrs. Cornwell runs the operation. All the employees with whom he has dealt refer decision-making to her. By the same token, Mr. Ward, the District Test Lab Coordinator for the Florida Department of Transportation, has observed Mrs. Cornwell as an MBE subcontractor on FDOT contracts. To insure that the subcontractors are qualified to do the work awarded his office goes to Test Lab's laboratory twice a year to inspect for technical competence and compliance. When Mr. Ward debriefs, at the end of the week long inspection, Mrs. Cornwell is always there and appears to know what is going on. Mr. Ward has been doing this since the 1992 start of the master contract, but he dealt with Mrs. Cornwell on other matters for several years before that. He has always assumed that Mrs. Cornwell was in charge at Test Lab. Whenever he needed to speak with someone there he would call and ask for her, and whenever he did this, she was present to answer the phone. He found her familiar with the technical aspects of laboratory procedures and determined that she seemed to know enough of the technical aspects of her business to satisfy his engineers. The company meets all requirements imposed by the Department of Transportation. Mr. Gallagher, an engineer for the City of Tampa and an independent general contractor has used Test Lab for do work for him for at least 6 years. This involves the testing of materials, density tests, the coring of concrete and the like for the city and he has also dealt with Mrs. Cornwell in his own business. He also taught her a course in contracting. At that time, she told him she was the owner of Test Lab. Through his contacts with her he found she had a working knowledge of what was going on in her business. She knew the terminology related to specific tests and what the tests were designed to disclose, and she has provided him with standards information from her library. In his dealing with Test Lab, Mr. Gallagher can generally get what he wants from the office manager and the laboratory supervisor, but if he runs into any problem, he goes to Mrs. Cornwell for resolution and has to go no further. David Carron has worked at Test Lab since it was started in 1972. He is a materials engineer but is not registered. At Test Lab, his job is to meet with clients, write proposals, review plans and specifications for specific projects, estimate and do special testing. When Test Lab was started, Mr. Cornwell and Mr. Orofino managed the business, but the wife of each was very much involved from the beginning. Today, only Mrs. Cornwell is involved. Test Lab has two almost separate divisions. One is the geo-technical division and the other is the construction materials testing division. The former provides services to property owners and other engineers prior to construction. Before the Cornwells took over, this division was run by Mr. Orofino, while Mr. Cornwell was involved in materials testing. This continued until each of the men left the business. In 1988, Mr. Cornwell began having medical problems which made him start to pull out. Mr. Orofino was gone by then and Mrs. Cornwell began to take over, after her husband pulled out entirely, and, from the inside, Mr. Carron knows she now runs the company. As to the proposal writing process, Mrs. Cornwell's participation is to identify prospective projects from a biweekly source listing of projects to bid on. She then assigns the selected project to a staff member at a weekly staff meeting she chairs to determine if the company can get involved and to report back to her. If the job is one on which the company desires to bid, Mr. Carron will write up the proposal using the standard fee schedule which is given to him by Mrs. Cornwell. The fee schedule was made up when the company started and has been adjusted over the years for rising costs and inflation. The prices on the current schedule were set by Mrs. Cornwell. This process can be used because of the lack of intangibles in the nature of Test Lab's work. If the amount of the proposal is under $1,500 the engineer is authorized to send it out on his own. Proposals of this size constitute between 20 and 40 percent of the company's business. If the proposal is for over $1,500, it must be approved and signed by Mrs. Cornwell. Mrs. Cornwell has generated a list of subcontractors that the company uses. Before she took over, there was more latitude in choosing subcontractors, but Mrs. Cornwell put the selection process on a more businesslike basis. Mrs. Cornwell arranges for all businesses used by the company, such as attorneys, CPA's and the like. She is the company business manager and she hires and fires all employees. She interviews all prospective employees and introduces a candidate to the operational supervisor for an evaluation of his or her technical capabilities. The ultimate decision to hire or fire, however, is up to her. Mrs. Cornwell is the one who instituted a bonus program and a profit- sharing program which never existed before she took over. Mr. Carron is satisfied that Mrs. Cornwell knows exactly what she is doing both from a business and a technical standpoint, and that she runs the company. She is there during all regular business hours and beyond. Historically, the engineering technicians were trained on the job. This practice has changed now. During the first few days of employment, the new technician is put in the video library which Mrs. Cornwell set up to review technical tapes before the start of on-the-job training. More experienced people, whose qualifications are known, need not do the classroom work. Whereas there was at one time only one registered engineer at Test Labs, now there are two. Neither can purchase equipment without Mrs. Cornwell's approval. She can fire both registered engineers as well as Mr. Thompson, the laboratory supervisor. All vehicles for the past 5 years have been purchased by her, and the same is true for test equipment, computers and office equipment. Mr. Carron is authorized to make relatively small purchases, of no more than $25.00 - $35.00, without Mrs. Cornwell's permission but only on an emergency basis, out on a job, when she is not available. This is to insure the work will not be delayed Terry Posner, the Technical Services Manager for Keys Concrete Industries, sells ready-mix concrete and concrete blocks. His company has done business with Test Lab for 14 years. They have block as well as ready-mix concrete tested. In his current dealings with Test Labs he deals only with Mrs. Cornwell. She runs the business, a fact which he has noticed over the past 3 or 4 years. Mr. Posner visits the company at least once a month and each time he is there he sees her. He has noted that she directs all employees and delegates responsibility. Regina Yorty has worked at Test Lab for almost 14 years. Initially she was hired as a general office clerk but now is the company's bookkeeper, Mrs. Cornwell's administrative assistant, and Secretary/Treasurer of the corporation. Since Mrs. Cornwell started entered full time management of the company in 1991 she has made many changes. She has pushed hard to upscale equipment and vehicles and she has updated the vehicle fleet, bought a new drill rig and purchased a new compaction hammer, scales and small equipment. She changed the prior management philosophy of just repairing and maintaining equipment. She also purchased a new copy machine and both new and used computers. Since Mrs. Cornwell assumed management, she has purchased a new accounting network system with the emphasis on job costing. This enhances the company's ability to bid on jobs and to bill receivables. Mrs. Cornwell believes in continuing education for all employees. She insists that all technicians become certified. In fact, Mrs. Cornwell is accredited by the American Concrete Industry and by Troxler Corporation for use of the nuclear densometer. Mrs. Cornwell bases the raises personnel receive on their certification level to encourage advanced and multiple certification. Salaries have gone up since Mrs. Cornwell took over and the company's salaries have become more competitive. This has resulted in the ability to retain qualified personnel. Test Lab now has workers compensation, medical, life, umbrella, professional liability, general liability and auto insurance. All policies were selected by Mrs. Cornwell who started price shopping. Professional liability insurance is a new coverage for the company. Prior management did not believe in it. Mrs. Cornwell has also implemented a plan for a drug-free workplace. New employees must sign an affidavit of non-use and be screened, and work related accidents result in a drug test. The results of this has been a saving on workers compensation insurance costs. Whereas prior management took money out of the company and paid themselves, Mrs. Cornwell leaves money in the company to promote its growth. Though Ms. Yorty writes out the checks to pay the bills, Mrs. Cornwell signs them. When funds are tight, it is Mrs. Cornwell who decides who to pay and how much is to be paid. The biweekly payroll at Test Lab is approximately $28,000 to $30,000. This is a substantial increase over what it used to be. Ms. Yorty used to open all incoming mail and route it. Mrs. Cornwell decided this would be a good way to learn about the business, so now she opens and routes it. Training programs are now in place for technicians and clerical personnel, enhanced by Mrs. Cornwell. In hiring all personnel from the professional consultants such as attorneys and accountants to cleaning personnel, Mrs. Cornwell looks for quality and price. She bears the majority financial risk if Test Lab were to fail since she owns more than 90 percent of the company stock. When finances were tight, Mrs. Cornwell did not take a paycheck. She was subsequently paid when funds became available. Also, at times she loaned money to the company out of her personal checking account. Income figures from 1982 to 1995 show that billing for professional engineers accounts for less than 5 percent of the company's total income. Revenue has, however, doubled since Mrs. Cornwell took over management of the company. Steven Knauss is a registered professional engineer who now works for Test Lab. He has also worked for four engineering firms since getting his Master's degree in 1973. One of these firms was the 35th largest engineering firm in the United States, and the owner is not an engineer. ATEC, another company authorized to do business as an engineering firm in Florida is not owned by an engineer. PSI, an engineering firm, is not owned by a registered engineer, but is owned by a financial holding company and, formerly, a foreign company. In short, there are numerous engineering firms in Florida which are not owned by a registered engineer. Based on Mr. Knauss' experience with the company, he is convinced that Mrs. Cornwell runs the company. She hired him, set his salary and can fire him. The Commission is not satisfied that Test Lab qualifies for minority business certification. Mary S. Williams is an analyst in the Certification Office of the Commission. She makes recommendations for approval or denial of applications for certification and is the individual who reviewed Test Lab's application submitted in June, 1993. This was the second application by Test Lab. After reviewing this application Ms. Williams requested additional information from the applicant and thereafter did a telephone audit of the application. Based on the information contained in the application and the other information received by her, Ms. Williams recommended denial of Test Lab's application because, in her opinion, the company did not comply with the rule for small businesses which requires the minority owner exercise daily control. Notwithstanding the testimony and the evidence presented at hearing, all of which Ms. Williams heard, she concluded that Mrs. Cornwell does not have the requisite technical knowledge to run the business. This is because, she claims, even if Mrs. Cornwell had the requisite technical knowledge in a few areas, she does not exercise control. The Commission requires that the owner/manager actually be involved in the technical aspects of the business and in this case, according to Ms. Williams, Mrs. Cornwell relys on technicians and engineers to do the work. Her certification is limited and does not cover all areas. In addition, according to Ms. Williams, in 1995 the law was changed to require minority owners of technical businesses to actually hold the required license. In this case, since Test Lab is registered as an engineer in this state, though two registered engineers are employed by the company and sign those documents requiring their signature, the Commission's position is that since Mrs. Cornwell is not an engineer, she cannot be classified as a minority engineering business enterprise. The Commission's rules on MBE certification are tighter than those of DOT or other state agencies, Ms. Williams contends. She got the impression from talking with Mrs. Cornwell that Mrs. Cornwell relied to a great degree on the input from her engineers. Ms. Williams claims she does not agree with her supervisor that the purpose behind the regulations on minority certification is to control fraud. She contends the rules are to prevent non-minorities from getting minority treatment. This would appear to be the same thing said differently. Ms. Williams believes that Mrs. Cornwell needs no technical knowledge to run Tech Lab profitably and well. Though neither she nor anyone else from the Commission has ever observed Mrs. Cornwell at work or the Test Lab operation, she concludes that because Mrs. Cornwell is not a certified technician in all areas with which the business is concerned, she is dependent upon the abilities of the technicians working in those areas and, therefore, cannot be considered as the controlling manager of the business. In substance, the basis for Ms. William's recommendation for denial was not the statute on registration of the owner, but the lack of Mrs. Cornwell's knowledge and control of the business. In her deposition taken prior to the hearing, Ms. Williams stated she did not know certain pertinent facts which bore on the issue of certification. At hearing, she claimed she could not remember what she had said. Ms. Williams admits that Mrs. Cornwell exercises dominant control over the company and runs it. Her testimony was inconsistent in that on the one hand she claims the only observable deficiency in Petitioner's application is that Mrs. Cornwell is not a registered engineer or a broadly certified technician, yet on the other hand claims the denial was on the basis of a lack of Mrs. Cornwell's knowledge.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Petitioner, Test Lab, Inc.'s application for MBE certification be denied. RECOMMENDED this 8th day of September, 1995, 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 8th day of September, 1995. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: - 4. Accepted and incorporated herein. Accepted. & 7. Accepted and incorporated except that 7 is more a stipulation to a point of fact rather than a finding. - 10. Accepted and incorporated herein. More a restatement of evidence than a Finding of Fact. Accepted. & 14. Accepted and incorporated herein. 15. - 21. Accepted as statement of Respondent's position. 22. - 39. Accepted and incorporated herein. 40. - 43. A statement of agency position on legal issues. 44. & 45. Accepted and incorporated herein. 46. Accepted. 47. - 49. Accepted. 50. Accepted and incorporated herein. 51. Accepted. 53. & 52. 54. More a statement of agency position rather than a finding of fact. Accepted. 55. & 56. Rejected as argument by the Petitioner rather than a finding of fact. 57. - 115. Accepted and incorporated herein. 116. Accepted. 117. - 188. Accepted and incorporated herein. FOR THE RESPONDENT: - 12. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. Rejected as not consistent with the weight of the evidence. & 16. Accepted. COPIES FURNISHED: Joe M. Gonzalez, Esquire, P.A. 500 North Westshore Boulevard, #700 Tampa, Florida 33609 Susan P. Stephens, Esquire Office of the Attorney General The Capitol - Suite PL-01 Tallahassee, Florida 32399-1050 Crandall Jones Executive Administrator Commission on Minority Economic and Business Development Collins Building - Suite 201 107 West Gaines Street Tallahassee, Florida 32399-2000 Joseph Shields Attorney Commission on Minority Economic and Business Development Collins Building - Suite 201 107 West Gaines Street Tallahassee, Florida 32399-2000
The Issue The issue for determination is whether a proposed amendment to existing Rule 54Q-16.001(1), Florida Administrative Code, constitutes an invalid exercise of delegated legislative authority.
Findings Of Fact Standing Of The Parties Petitioners Roshkind and Payne are each dentists, licensed to practice in the State of Florida and regulated by the Board of Dentistry. Both Roshkind and Payne utilize dental lasers in their practice of dentistry. Petitioners Roshkind and Payne both own laser dental equipment and employ dental hygienists in their respective practices who perform or have performed, under supervision, a task known as gingival curettage by using laser equipment. Should the rule amendment challenged in these proceedings become effective, neither Roshkind or Payne will be able to delegate the task of gingival curettage by use of laser equipment to their dental hygienists and, as a consequence, will have to perform these tasks personally. Further, in the absence of the ability to delegate performance of gingival curettage with laser equipment to dental hygienist employees, both dentists will be forced to see fewer patients if they continue the use of laser equipment for the performance of this task by themselves with a resultant increase in cost of this service to patients. Both dentists will be substantially impacted by the adoption of the rule amendment. No record testimony regarding the status of the Florida Academy of Laser Dentistry was presented during the Final Hearing by either party. Respondent Board of Dentistry is the statutory agency authorized to regulate the licensure and practice of dentistry and dental hygiene. The Respondent maintains offices at 1940 North Monroe Street, Tallahassee, Florida 32399-0765. The Proposed Rule Amendment, Statutory Basis, And The Process The existing rule, with the proposed amendment underlined, reads as follows: 59Q-16.001 Definitions of Remediable Tasks and Supervision Levels. Remediable tasks, also referred to as expanded functions of dental assistants, are those intro-oral tasks which do not create unalterable changes in the oral cavity or contiguous structures, are reversible and do not expose a patient to increased risk. The use of a laser or laser device of any type is not a remediable task. Section 466,023, Florida Statutes, provides in pertinent part that: Dental hygienists may remove calculus deposits, accretions, and stains from the exposed surfaces of the teeth and from the gingival sulcus; perform root planning and curettage; . . . and perform all tasks delegable by the dentist in accordance with Section 466.024. Section 466.024, Florida Statutes, provides: A dentist may not delegate irremediable tasks to a dental hygienist or dental assistant, except as provided by law. A dentist may delegate remediable tasks to a dental hygienist or dental assistant when such tasks pose no risk to the patient. A dentist may only delegate remediable tasks so defined by law or rule of the board. The board shall be rule designate which tasks are remediable and delegable, except that the following are by law found to be remediable and delegable: Taking impressions for study casts but not for the purpose of fabricating any intraoral restorations or orthodontic appliances. Placing periodontal dressings. Removing periodontal or surgical dressings. Removing sutures. Placing or removing rubber dams. Placing or removing matrices. Placing or removing restorations. Placing or removing temporary restorations. Polishing amalgam restorations. Polishing clinical crowns of the teeth for the purpose of removing stains but not for changing the existing contour of the tooth. Obtaining bacteriological cytological specimens not involving cutting of the tissue. Nothing in the subsection shall be construed to limit delegable tasks to those specified herein. [Notwithstanding subsection (1), a dentist may delegate the tasks of gingival curettage and root planning to a dental hygienist but not to a dental assistant]. [emphasis supp.] The term "irremediable tasks" is defined in Section 466.003(11), Florida Statutes, as: [T]hose intraoral treatment tasks which when performed are irreversible and create unalter- able changes within the oral cavity or the contiguous structures or which cause an incr- eased risk to the patient. The term "remediable tasks" is defined in Section 466.003(12), Florida Statutes, as: [T]hose intraoral treatment tasks which are reversible and do not create unalterable changes within the oral cavity or the contiguous structures and which do not cause an increased risk to the patient. In January 1992, the issue of laser use in the practice of dentistry came to the attention of the Board of Dentistry and a committee was formed to examine the issue. The Board's laser committee held numerous meetings and considered information from several sources. One committee recommendation was the language at issue in the current rule challenge. On September 17, 1993, the Board of Dentistry filed notice of the proposed laser rule with the Secretary of State's Office and with the Joint Administrative Procedures Committee. On October 8, 1994, the Board of Dentistry held a final public hearing on the proposed laser rule. This public hearing did not resolve the issues between the parties. The legislature has designated the Department of Health and Rehabilitative Services as the government agency responsible for the promulgation of rules to protect personal health and safety of persons exposed to laser devices. Section 501.122(2), Florida Statutes. Curettage In dental practice, the task known as curettage, subgingival curettage, or gingival curettage is the removal of inflamed, infected, or diseased soft gum tissue from inside an area known as the periodontal pocket. Curettage was named after the instrument by which it was first performed, a curette; however, several other instruments or devices are now used to perform the task, including curettesm sonic devices, ultrasonic devices, piezo electric devices, and lasers. As established by testimony of Petitioners' expert witnesses, Drs. Parkins and Roshkind, and corroborated by authorities relied upon by them, there is use for gingival curettage, including performance of that task by lasers. A laser is not a task.
Conclusions Based on the foregoing, it is hereby ORDERED that the proposed amendment to Rule 59Q-16.001(1), Florida Administrative Code, is an invalid exercise of delegated legislative authority under Section 120.54(4), Florida Statutes, to the extent that it seeks to prohibit performance of gingival curettage with laser technology by dental hygienists. DONE and ORDERED this 7th day of February, 1996, in Tallahassee, Leon County, Florida. DON W. DAVIS, 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 7th day of February, 1996. APPENDIX The following constitutes my rulings, pursuant to Section 120.59, Florida Statutes, upon proposed findings of fact submitted by the parties: Petitioner's Proposed Findings. 1.-16. Adopted in substance, but not verbatim. 17.-41. Rejected, unnecessary to conclusion. 42.-50. Rejected, hearsay. 51.-54. Adopted, not verbatim. 55.-57. Rejected, unnecessary. 58.-62. Accepted, not verbatim. 63.-66. Rejected, unnecessary. 67. Adopted. 68.-73. Subordinate to HO findings. Respondent's Proposed Findings. Adopted in substance. Rejected, subordinate to HO findings. 3.-6. Adopted in substance. 7.-27. Rejected, subordinate to HO summary of these matters. Further, the statements contained in exhibits are, absent stipulation of the parties, insufficient in themselves to serve as the basis for a finding of fact. 28. Rejected, subordinate to HO findings. 29.-30. Rejected, argumentative. 31. Rejected, weight of the evidence. 32.-34. Adopted, not verbatim. 35.-36. Rejected, relevance. COPIES FURNISHED: Allen R. Grossman, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Jeffrey H. Barker, Esquire Post Office Box 1107 Tallahassee, Florida 32302 William Buckhalt, Executive Director Agency for Health Care Administration Division of Medical Quality Assurance 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Building 3 Tallahassee, Florida 32399 Richard T. Farrell, Secretary Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Liz Cloud, Chief Bureau of Administrative Code Department of State The Elliott Building Tallahassee, Florida 32399-0250 Carroll Webb, Executive Director Administrative Procedures Committee Holland Building, Room 120 Tallahassee, Florida 32399-1300
The Issue Whether Petitioner should be issued a license to practice dentistry pursuant to Chapter 466, Florida Statutes.
Findings Of Fact Petitioner Dr. Lester Altman is a licensed dentist in the State of New York who practices dentistry in Brooklyn , New York. He has been in the private practice of dentistry since 1948. (Testimony of Petitioner) Petitioner applied for licensure as a dentist in Florida on two occasions in 1976 and took the necessary examinations for such licenses. On both occasions, he failed to achieve a satisfactory grade of 75 on the clinical examinations. He applied again in March, 1978, and was examined in June, 1978. He was informed by Respondent on July 5, 1978, that he had not achieved a final grade of 75 on the clinical examination and therefore did not qualify for licensure. Petitioner thereafter filed a petition for an administrative hearing which was referred to the Division of Administrative Hearings on July 27, 1979. (Testimony of Petitioner, Case pleadings, Exhibit 13) The June, 1978, clinical examination was conducted in Gainesville, Florida, by a group of examining dentists which consisted of certain members of the Board of Dentistry and other selected Florida dentists. Approximately 75 percent of the group had served previously as examiners. The clinical examination extends for a period of two days and applicants are tested in the areas of cast gold restoration, amalgam restoration, laboratory, denture setup, periodontal evaluation, and professional evaluation. Two separate grades are given for the cast gold restoration, amalgam restoration, and laboratory portions of the examination. Each of the six major parts of the examination is weighted for grading purposes and all scores are considered in arriving at a total score for the test. Each scored portion of the examination receives a grade ranging from 0 to 5, with 5 representing 100 percent and 3 being an average grade of 75 percent. The subject matter of the examination is determined by the Board of Dentistry and the individual grades for each portion of the examination are entered by two examiners on a grading form designed by a professional testing organization in conjunction with the Board for computer scoring. In order to ensure the validity and fairness of the examination, it is necessary that grading procedures be standardized by the examiners. This process is to preclude to the extent possible widely divergent scores being assigned to a particular portion of the examination by individual examiners. Such a standardization process takes place a short time prior to the administration of the examination at which all examiners are in attendance. At that time various criteria are established and the examiners practice grading various parts of the examination using models of teeth, slides, and the like. Grades are compared among the examiners and guidelines are established so that all examiners will be grading on the same criteria. During these sessions, Department Heads and other faculty personnel of the University of Florida Dental School participate and lecture to the examiners. The "professional evaluation" portion of the examination includes grading criteria for clinical judgment, professional judgment, instruments, patient management, clinical examination, and operatory arrangement. "Clinical judgment" deals primarily with the applicant's competence in diagnosing and performing the necessary dental work required in the examination. "Professional judgment" includes considerations of the applicant's concern for and demeanor toward patients as to prevention of pain, courtesy in avoiding appointment delays, and other matters reflecting his interest in the patient. Similarly, the applicant's treatment of his dental assistants is considered in this category. The other areas of patient management, instruments, clinical examination, and operatory arrangement deals with the cleanliness and appropriateness of instruments, extent of dental knowledge and decision making, and treatment of patients. In particular, the areas of clinical judgment, professional judgment, and patient management overlap one another in varying degrees. The professional evaluation segment of the examination is standardized at the early meetings of the examiners by full discussion of the grading criteria among the participants and arrival at a consensus as to uniformity. The examiners are instructed to make notations or check marks on the grading form in cases where a below average grade is entered. The standardization procedures were employed for the June 1978 clinical examination. (Testimony of Hite, Bliss, Santin, (Deposition - Exhibit 2), Dannahower (Deposition- Exhibit 3), Mullens (Deposition - Exhibit 1), Exhibits 4, 8, 12) At the time an applicant reports for the examination, he is assigned a random number which is placed on the various examination forms to provide anonymity. He is assigned his own operatory or treatment area to work in and his own laboratory desk. Various periods of the two-day examination session are spent in the laboratory and clinic areas. Two examiners grade the laboratory work. In the clinic there is an examiner in charge and normally two other examiners who view the candidates's work after each step of the examination and independently enter a grade on the scoring form. After the second examiner has entered the grade, he notes the grade given by the first examiner and, in rare instances where there is more than one grade difference between the two, a third examiner is called in to enter an independent grade of his own. Such an instance did not occur with respect to Petitioner's examination. The "professional evaluation" grade is entered during the last clinic session based on the examiners' observations of the applicants during the cast gold and amalgam restoration and periodontal parts of the examination. The two examiners who grade professional evaluation will have graded the applicant for at least 50 percent of the clinical subjects from which the professional evaluation grade is derived. These examiners also may observe notes or deficiencies entered by other examiners for other clinical portions of the examination and may take these into consideration when entering the professional evaluation grade. Each applicant retains a check sheet throughout the examination on which each step is initialed by the examiner contemporaneously with entry of the grade on the grade sheet to ensure that the applicant has completed each successive step of the examination. The check sheets are monitored by examination assistants to verify that each section of the examination has been completed and graded. There is no place on the check sheet concerning the "professional evaluation" segment of the examination because the grade is entered by the examiners without any prior request from the applicant to be graded in that area. The examiner in charge of the clinic at the time the professional evaluation grade is entered always is one of the graders for that part because he is an experienced Board member. In the case of Petitioner, two Board members graded the professional evaluation part of the examination. (Testimony of Hite, Bliss, Santin (Deposition) Dannahower (Deposition) , Mullens (Deposition), Exhibit 11) After completion of the examination, the scores on the grade sheets are tabulated and weighted to arrive at a final grade. Various statistical studies are made concerning the grading by new examiners to determine if their grading practices produce valid results. The two Board members who graded Petitioner's "professional evaluation" portion of the examination are experienced and considered to be valid graders by Respondent's testing consultant. Each examiner is assigned a number which is entered on the grading form by him at the time he grades a segment of the examination. As a matter of Board policy, the grade for "professional evaluation" is considered by the examiners to be a "3" which is a passing score unless the examiner determines that the grade should be raised or lowered based on the applicant's performance during the examination. Although a computer error was made on a December 1978 examination, none was made on Petitioner's grade sheet for the June 1978 examination. The 1978 computer error was corrected and the applicant was eventually permitted to retake a portion of his examination based on a separate erroneous grading procedure and thereafter obtained a license. The grading form includes blocks at the top of each segment of the examination which the examiner may use to enter his number and a grade for the second time. Although the entry of such items would be helpful in the event there is a conflict in the computer grade marked below the block, such entry is not required of the examiner and would not be "read" by the computer. One of Petitioner's examiners who was examiner Number 5 incorrectly entered the number "4" on the grade sheet portion of the examination. In the opinion of the Board testing consultant, such an entry by an examiner of an incorrect examiner number on the grade sheet would not affect the validity of any grade entered at that time. (Testimony of Hite, Bliss, Santin (Deposition), Dannahower (Deposition, Exhibits 8-9, 11) Petitioner's scores for the June 1978 practical examination were as follows: Amalgam Restoration 81.25; Cast Gold Restoration 70.87; Periodontal Evaluation 79.12; Professional Evaluation 62.50; Laboratory Evaluation 68.75; Denture Set-up 56.25. His overall average for the examination was 72.61. (Exhibit 12) Petitioner was unsatisfactory in four parts of the six-part clinical examination. These were denture setup, laboratory, professional evaluation, and cast gold restoration. Notations or check marks were entered on the grading form by examiners as to the deficiencies which prompted the unsatisfactory grades. As to cast gold restoration, one examiner noted "watch calculus" on the cavity preparation segment, and both examiners checked "margins" and reflected "open contact." Although the latter deficiency obviously existed at the time of the examination, a subsequent check of the patient after the examination revealed that the lack of contact was cured by the passage of time. In the laboratory portion both examiners observed "no contact" in the wax pattern portion, but only one examiner noted bubbles, pits, and sprueing in the casting part of the laboratory work. One examiner entered seven check marks on the denture setup portion of the examination and the other examiner entered four check marks for that part. In professional evaluation, one examiner checked "clinical judgment" and the other examiner checked both "clinical judgment" and "professional judgment." The one who entered a deficiency for clinical judgment did so due to the fact that calculus was present during the cavity preparation portion of the cast gold restoration procedure. The second examiner did not recall why he had entered the professional evaluation deficiencies on the grade sheet. Six different examiners participated in the grading of Petitioner's examination. In four of the nine areas which were graded by two examiners, the same grade was entered by both examiners. In the remaining five portions, the two examiners did not deviate by more than one grade score. Three examiners graded the Petitioner in the three areas of work upon which the professional evaluation grade was based. Two of these three examiners graded the professional evaluation portion of the examination. The patients upon whom Petitioner performed dental work during the examination experienced no pain or discomfort during the examination and are of the opinion that Petitioner treated them in an exemplary and professional manner at that time. (Testimony of Hite, Bliss, Dannahower (Deposition) Santin (Deposition), Weissman, Solomon, Exhibits 8-9, supplemented by Exhibits 5-7) Petitioner's scores for the December 1976 clinical examination were higher that those on the June 1978 examination for laboratory and professional evaluation. They were the same for periodontal evaluation and amalgam restoration. The cast gold restoration score was lower in the December 1976 examination. (Exhibits 12-13) Petitioner has had an active practice for many years in Brooklyn, New York, with an average of 15 to 20 patients per day and an annual gross income of over $100,000. The former owner of a large dental laboratory in New York City which produced dental appliances for Petitioner over many years found him to be extremely competent in the work provided to the laboratory. Several of his patients attested to Petitioner's excellent dental work and professional demeanor, and expressed the desire to have him serve as their dentist in Florida. (Testimony of Tauman, Karlin, Cohen, Solomon, supplemented by Exhibit 5)
Recommendation That Petitioner's application for a license to practice dentistry be denied. DONE and ENTERED this 11th day of December, 1979, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings 101 Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Richard Hixson, Esquire Room 1501 - The Capitol Tallahassee, Florida 32301 John P. Fuller, Esquire Fuller, Feingold, Weil and Scheer No. 802 Flagship Bank Building 1111 Lincoln Road Mall Miami, Florida 33139 Florida State Board of Dentistry Attn: Leah Hickel Administrative Assistant 2009 Apalachee Parkway Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION DR. LESTER ALTMAN, Petitioner, DEPARTMENT OF ADMINISTRATIVE HEARINGS vs. CASE NO. 79-1639 BOARD OF DENTISTRY, STATE OF FLORIDA, Respondent. /
Findings Of Fact At all times material hereto, Respondent was a dentist authorized to practice dentistry in the State of Florida, with offices located at 7900 Red Road, Miami, Florida. In her practice, Respondent specialized in pedodontics and orthodontics. At various times during her practice, Respondent employed Annabelle Winnan, Sandra Novotney, Mary Ellen Pelaez and Tonya Fogg as dental assistants. Duties and responsibilities allegedly delegated by Respondent to these employees are the subject matter of the allegations contained in Count I of the Administrative Complaint filed herein. Annabelle Winnan was employed in Respondent's dental office from October 11, 1966 through January 1, 1969, and again from July 15, 1974 through July 1, 1977. During the terms of her employment, Ms. Winnan received on-the- job training from Respondent, and in September of 1974, Ms. Winnan attended a formal training course for expanded duties for dental auxiliaries at Lindsay Hopkins Technical Education Center in Miami, Florida. In September of 1974, Ms. Winnan received a certificate from Lindsay Hopkins certifying her to perform expanded duties as a dental auxiliary. However, at no time prior to or during the terms of her employment with Respondent did Ms. Winnan ever receive any formal education as a dental hygienist, nor was she ever certified or licensed as a dental hygienist in the State of Florida. The allegations in Count I of the Administrative Complaint dealing with duties performed by Ms. Winnan relate solely to her second term of employment with Respondent from July 15, 1974 through July 1, 1977. In the Administrative Complaint, Petitioner alleges that Ms. Winnan, at the direction of Respondent, routinely "scaled" and polished patients' teeth; took alginate impressions for both study models and appliances; was directed to place and adjust these applicances in patients' mouths; was directed to fit and cement orthodontic bands for patients and to recement loose bands, even in the absence of an emergency; and routinely took dental X-rays, including cephalostat, cephalogram, panorex, and regular X-rays. Ms. Winnan left Respondent's employ January 1, 1969, because Respondent closed her practice due to ill health. When Respondent reopened her practice in July of 1974, Ms. Winnan returned to work for her, and was, for a time, Respondent's only employee. During the period of time from July 15, 1974 through September, 1974, when Ms. Winnan obtained her expanded duties certificate, Ms. Winnan, at Respondent's direction, routinely took both panorex X-rays and bite-wing radiographs of Respondent's patients. (T. 440). In addition to taking the X-rays, Ms. Winnan would develop those X-rays and submit them to Respondent for reading. In addition, during the period between July, 1974, and September, 1974, when Ms. Winnan received her expanded duties certificate, at the direction of Respondent she cleaned and polished the clinical crowns of the teeth of many of Respondent's patients, for the purpose of removing stains and other foreign matter. In addition, during this period Ms. Winnan used a metal instrument known to her as a "scaler" in the course of her cleaning and polishing patients' teeth. Ms. Winnan's use of the "scaler" was limited to the clinical crown of the patient's teeth, or that area above the gum line of the tooth. It is unclear from the record whether Ms. Winnan's activities in this regard constituted "scaling", as that term is commonly used in the dental profession. It is, however, clear that she used the instrument frequently at Respondent's direction. Ms. Winnan's activities with respect to the taking of X-rays, and cleaning and polishing the teeth of Respondent's patients continued, in the fashion indicated above, from the time Ms. Winnan received her expanded duties certificate through the time she left Respondent's employ in July of 1977. It appears from the record in this proceeding that Ms. Winnan also took alginate impressions of the mouths of Respondent's patients for study and diagnostic models both before and after she received her expanded duties certificate in September of 1974. However, although Ms. Winnan also testified that she took alginate impressions from which "Hawley" appliances were made for Respondent's patients, she was unable to identify the names of any such patients, the dates the impressions were taken, or the circumstances surrounding the taking of the impressions. Further, there is no showing in the record in this proceeding that any casts taken by Ms. Winnan were used for the fabrication of a Hawley appliance or any other appliance designed to be worn in the human mouth. Significantly, there is no showing in the record of Respondent's office practice during this period concerning how the impression was handled after it was taken to corroborate Ms. Winnan's assertion that impressions taken by her were ultimately fabricated into appliances for Respondent's patients. In addition, although the evidence establishes that Ms. Winnan took impressions for mouth study casts of Respondent's patients prior to receiving her expanded duties certificate, there is insufficient evidence on which to base a finding that these impressions were taken without the direct supervision of Respondent, or that the Respondent did not examine the patient's mouth prior to and following the taking of the impressions. Count I of the Administrative Complaint also charges, in part, that Respondent directed Ms. Winnan " . . . to place and adjust . . . appliances in . . . patients' mouth[s] ." Although there is some testimony in the record to show that Ms. Winnan on occasion "placed" appliances in patients' mouths, there is no showing that the simple act of "placing" such an appliance requires any special expertise, nor is there any showing that the doctor was not present and directly supervising Ms. Winnan's activities in this regard. With regard to the alleged "adjustment" of appliances by Ms. Winnan, there is no testimony to indicate the nature of these alleged "adjustments", nor is there any testimony to show that Respondent was not present and supervising any such activity, even assuming that it did occur. Although Respondent did no major orthodontics work until some time during 1977, she did engage in some isolated orthodontic work during the time of Ms. Winnan's employment. This orthodontic work included the utilization of orthodontic bands to accomplish movement in patients' teeth. The process of installing bands on patients' teeth included "pre-sizing", or selecting the appropriate band size, "contouring" or festooning" the band to fit the contour of the tooth, placing cement in the band and, finally, placing the band on the tooth. The evidence establishes that during her second period of employment from 1974 through 1977, Ms. Winnan "pre-sized" orthodontic bands, at times when Respondent was in another room, placed cement in the bands, and placed the bands on the patients' teeth. After the bands were installed by Ms. Winnan, the Respondent would customarily check Ms. Winnan's work before discharging the patient. During a period in the months of June and July, 1977, Respondent took leave from her dental office to vacation in Spain. During Respondent's absence from her office, Ms. Winnan was assigned by Respondent to dispense orthodontic appliances to Respondent's patients, which appliances had earlier been prescribed by Respondent. In addition, Ms. Winnan was directed to dispense elastics for, use with orthodontic appliances to certain of Respondent's patients. However, during Respondent's absence from her office Ms. Winnan resigned her position with Respondent without having dispensed any orthodontic appliances or elastics. After Respondent returned from vacation and discovered that Ms. Winnan had resigned, Respondent filed a lawsuit against Ms. Winnan for breach of an alleged oral employment contract. This lawsuit was eventually resolved in favor of Ms. Winnan. However, Ms. Winnan testified that she would probably not have complained to the Board of Dentistry about Respondent's delegation of duties to her in the absence of the lawsuit. Sandra Novotney was employed in Respondent's dental office from October 10, 1976 through June, 1977; again during the months of August and September of 1977; and, finally, from December of 1978 through June of 1979. At various times Miss Novotney's duties included both secretarial work and chair- side assistance to Respondent. Miss Novotney has never received any formal training as either a dental hygienist or dental auxiliary, either prior to or during the time of her employment with Respondent, nor has she ever received licensure or certification as a dental hygienist or a dental auxiliary. Count I of the Administrative Complaint, in part, charges that while Ms. Novotney was employed with Respondent, Respondent directed her to " . . . routinely [take] impressions for both study casts and appliances that were used for patients . . ." and " . . . routinely [adjust] and [fit] orthodontic bands for patients, and [place] arch wires on patients." During her second period of employment with Respondent, Ms. Novotney took alginate impressions of the mouths of certain of Respondent's patients. In her testimony at the final hearing Ms. Novotney was unable to recall the names of any patients from whom she took impressions or the dates that those impressions were taken. It appears from the record that orthodontic appliances made from impressions taken of Respondent's patients' mouths were not fabricated in Respondent's office, but that impressions were mailed to a laboratory for fabrication of appliances. Accordingly, absent a demonstrated knowledge of the office procedures concerning the handling of these impressions once taken, it would be difficult, if not impossible, to determine the purpose for which these impressions were used. In this connection, Ms. Novotney gave no testimony concerning the handling of the impressions taken by her after they were removed from the mouths of the patients, instead flatly stating that the impressions were used for the fabrication of appliances. Given Ms. Novotney's testimony, which was uncorroborated by any other evidence and was denied by Respondent, there is insufficient evidence in the record in this proceeding upon which to base a conclusion that any impressions taken by Ms. Novotney were used to fabricate appliances to be worn in the human mouth. In addition, Ms. Novotney's testimony concerning the taking of impressions failed to establish that impressions taken for study casts were taken without the direct supervision of Respondent, or that the Respondent did not examine the patient's mouth prior to and following the taking of the impressions. During her third period of employment with Respondent, Respondent would, on occasion, allow Ms. Novotney to "pre-size" orthodontic bands by placing them on a patient's tooth. In addition, Ms. Novotney, at Respondent's direction, cemented orthodontic bands on a patient's tooth by placing the band on the tooth and having the patient bite down on a flat instrument in order to correctly seat the band. Ms. Novotney accomplished this procedure only with Respondent's presence in the office, although Respondent would, on occasion, not be physically present in the operatory when Ms. Novotney was actually cementing the band. However, Respondent routinely checked the patients on whom Ms. Novotney cemented bands before the patient was discharged. Although it is alleged in the Administrative Complaint that Ms. Novotney routinely "adjusted" orthodontic bands at Respondent's direction, it is clear from the testimony in this proceeding that Ms. Novotney never made any adjustment to orthodontic bands. Orthodontic bands are often connected by arch wires in order to provide the torque necessary to achieve the desired tooth movement. After bands are placed on a patient's teeth, an arch wire must be pre-sized and cut to fit the patient's mouth, and then must be threaded through brackets located on the orthodontic bands and finally secured. It appears from the evidence in this proceeding that Ms. Novotney, at Respondent's direction, placed arch wires in patients' mouths and secured them in place by putting an elastic band around the arch wire and around the orthodontic band cemented to the tooth. Ms. Novotney's duties with respect to placing and securing arch wires occurred during her third period of employment with Respondent. In addition to her other duties outlined above, it also appears from the record that Ms. Novotney polished or cleaned the clinical crowns of patients' teeth, and polished at least one amalgam restoration during her employment by Respondent. Respondent was not, however, charged in the Administrative Complaint with allowing Miss Novotney to perform these procedures, and no action will, therefore, be recommended against Respondent in this Recommended Order in connection with this activity. Mary Ellen Pelaez was employed in Respondent's dental office from August of 1977 through March of 1979. During her employment with Respondent, Ms. Pelaez attended the expanded duties course at Lindsay Hopkins Technical Education Center. Ms. Pelaez received her extended duties certificate from Lindsay Hopkins in August of 1978. At no time material hereto was Ms. Pelaez ever licensed or certified as a dental hygienist in the State of Florida. In the Administrative Complaint, Petitioner charges that Ms. Pelaez, while not under the direct supervision of Respondent, ". . . routinely took impressions for study casts and appliances; polished, cleaned, and scaled teeth; selected, pre-sized, and cemented-orthodontic bands." During the time she was employed by Respondent, Ms. Pelaez, at Respondent's direction, took alginate impressions of Respondent's patients' mouths for the purpose of making study casts, retainers and appliances. Ms. Pelaez would pour the impressions, cut them down, and Respondent would mark the impression for fabrication of an appliance or a retainer, and the impression would then be mailed to a laboratory for fabrication. After Ms. Pelaez had taken the impression, and after Respondent had marked it appropriately, a note would be placed with the impression indicating whether Respondent wished a retainer or an appliance made for the patient from the impression. During the time she was employed by Respondent, Ms. Pelaez both before and after she received her expanded duties certificate, cleaned and polished the clinical crowns of the teeth of many of Respondent's patients for the purpose of removing stains and other foreign matter. To accomplish this task, Ms. Pelaez used an electronically-run instrument and applied pumice paste to the teeth with a rubber cup. In addition, Ms. Pelaez used an instrument known to her as a "scaler", to assist in removing foreign matter from patients' teeth. Respondent often would not be in the operatory with Ms. Pelaez and the patient while the cleaning and polishing of the patient's teeth was occurring, but Respondent would, in most instances, check the patient's mouth after the procedure was performed by Ms. Pelaez. At some point after she received her expanded duties certificate, Ms. Pelaez advised Respondent that she felt that she could not legally continue to "scale" teeth. Respondent replied that as long as Ms. Pelaez was working for her she would do as she was instructed. In addition to the aforementioned duties, during her employment with Respondent, both before and after she received her expanded duties certificate, Ms. Pelaez, at the direction of Respondent, selected, pre-sized, and cemented orthodontic bands on the teeth of many of Respondent's patients. In many cases, while Ms. Pelaez was selecting and cementing these orthodontic bands, Respondent was not physically present in the operatory with her to directly supervise these activities. However, it appears from the evidence, that Respondent routinely examined these patients after the bands were cemented by Ms. Pelaez. Ms. Pelaez was discharged by Respondent in March of 1979. Ms. Pelaez filed a claim for unemployment compensation, which claim was contested by Respondent, who claimed that Ms. Pelaez was fired for "insubordination." The unemployment compensation claim was apparently resolved in favor of Ms. Pelaez. Tonya Fogg was employed in Respondent's office from January 2, 1979 through October 31, 1979. At no time, either prior to or during her employment with Respondent, did Ms. Fogg receive any formal training either as a dental auxiliary or a dental hygienist, nor was she ever licensed or certified as a dental auxiliary or a dental hygienist in the State of Florida. Count I of the Administrative Complaint charges, in part, that Ms. Fogg, at Respondent's direction, ". . . routinely took impressions for study casts and appliances, selected, pre-sized, and inserted orthodontic bands; and adjusted and placed arch wires . . ." The evidence in this proceeding establishes that, during the period of her employment in Respondent's office, Ms. Fogg, at Respondent's direction, took alginate impressions of the teeth of many of Respondent's patients for the purpose of making study models and for the fabrication of retainers or positioners. After Ms. Fogg took these impressions, she would place them in a box for mailing to a laboratory for fabrication, and was directed by Respondent to write a prescription for inclusion with the impression asking that either a retainer or positioner be prepared by the laboratory. Ms. Fogg was also on numerous occasions directed by Respondent to select, contour and cement orthodontic bands on the teeth of many of Respondent's patients. Respondent had instructed Ms. Fogg and other dental assistants employed in her office in the use of a "Mizzy stone," a heatless stone used to contour or "festoon" orthodontic bands to fit a patient's tooth. Procedures of this nature performed by Ms. Fogg were often accomplished without the presence of Respondent in the operatory. In addition, Ms. Fogg, and other dental assistants employed in Respondent's office, selected, pre-sized, installed and removed arch wires used in the mouths of some of Respondent's patients. These procedures were performed by Ms. Fogg at Respondent's direction, and included making the proper determination as to arch form and symmetry, and the performance of final adjustments on the arch wire. Ms. Fogg is apparently a close personal friend of Ms. Pelaez. As indicated above, Ms. Pelaez filed an unemployment compensation claim after she was discharged from Respondent's employ Ms. Fogg resigned from her position with Respondent on October 31, 1979, and the next day appeared as a witness on behalf of Ms. Pelaez at a hearing on Ms. Pelaez' unemployment compensation claim. In Count II of the Administrative Complaint, Respondent is charged with various types of physical mistreatment of the following patients: John (last name and age unspecified); Jeff Heggins (age 4); Craig Beggins (age 10); Edwin Rivera (age 3-1/2); Shana Hornwhite (age unspecified) Terry Ruiz (age unspecified) ; Eric Lumkin (age unspecified); Gregory Roberts (age 7); Catherine Gruber (age 12); and Gary Andrews (age unspecified). The incidents involving these patients are alleged to have occurred during a period from "approximately" October of 1976 through October of 1979. At all times material hereto, Respondent's cumary office practice was to have parents of her children patients wait in the office reception area while procedures were performed on the patients in an operatory separated from the reception area by a locked door. As a result, the only potential eye witnesses to most instances of alleged physical mistreatment of patients were the patients themselves, Respondent's dental assistants, and the Respondent. None of the patients who were allegedly mistreated by Respondent were called as witnesses. Respondent categorically denied having in any way mistreated the patients as alleged in the Administrative Complaint, instead contending that the most that had ever occurred was the use of "behavioral management" techniques commonly recognized in the dental profession. However, Ms. Winnan, Ms. Pelaez and Ms. Fogg each testified that they had personally observed various of the alleged incidents of physical mistreatment. Ms. Winnan testified that at some time between June of 1976 and July of 1977, during the course of Respondent's treatment of a patient named "John", whose last name Ms. Winnan could not remember, the child began to cry. In an effort too stop the child from crying, Ms. Winnan testified that Respondent placed her hand over the child's nose and mouth until he stopped crying, but that when Respondent removed her hand, the child again began to cry, whereupon Respondent slapped him across the face. When the child still persisted in crying, Ms. Winnan testified that Respondent stuck her finger down the child's throat and that when Respondent removed her finger it was covered with blood. Ms. Winnan did not report this incident to the parents of the child, nor to the Board of Dentistry until two to three years after it had occurred. Respondent denies that the incident ever occurred and, given Ms. Winnan's inability to more fully identify the child or the date on which the incident is alleged to have occurred, it is hard to conceive how Respondent could do much more than that to defend against these allegations. Although Ms. Winnan's testimony regarding this incident is not incredible, it is no more credible than Respondent's denial of the incident. Accordingly, there is insufficient evidence in the record of this proceeding on which to base a finding of fact that the incident occurred as alleged. On December 1, 1978, Respondent was treating a patient named Jeffrey Beggins. In the course of her treatment of this patient, Respondent slapped Jeffrey Beggins' face with sufficient force to leave a reddened handprint. The reason or reasons for Respondent having slapped the child are not clear from the record. This incident was witnessed by Ms. Pelaez. On the same day that this incident occurred, Respondent advised Ms. Pelaez that Respondent had received a call from Jeffrey Beggins' mother complaining about the slapping incident. Respondent advised Ms. Pelaez that the child's mother had been invited to come to the office for a conference, and that when the child's mother came into the office, Ms. Pelaez should advise the mother that the slapping incident had never occurred. The child's mother did not keep the office conference with Respondent, but did not return her children to Respondent for treatment thereafter. Mrs. Beggins' testimony at the final hearing in this cause regarding her telephone conversation with Respondent is consistent with Respondent's recollection of the subject matter discussed between them. There is insufficient credible evidence in the record in this proceeding to establish that Respondent physically mistreated or abused Craig Beggins, Shana Hornwhite, Terry Ruiz, Eric Lumkin, Catherine Gruber or Gary Andrews. There was no testimony elicited at the final hearing in this cause concerning the allegations in Count II of the Administrative Complaint with respect to mistreatment or abuse of patients Edwin Riviera or Gregory Roberts. Respondent possesses an extraordinary record of academic accomplishment in the field of dentistry. In addition, she enjoys a very good reputation in both the medical and dental communities in Dade County, Florida. There were numerous and profound conflicts in the testimony of several of the witnesses testifying in this proceeding. In attempting to resolve these conflicts, the Hearing Officer took into account the appearance, demeanor and manner of the witnesses while testifying, their interest, if any, in the outcome of this proceeding, and the consistency of their testimony with the testimony of other witnesses regarding the facts at issue herein. Both Petitioner and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that these proposed findings of fact have not been incorporated in this Recommended Order, they have been rejected as either not having been supported by the evidence, or as being irrelevant to the issues decided herein.
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race in connection with the terms and conditions of employment of Petitioner.
Findings Of Fact Petitioner Angelo Rivers, a black male, was employed in the formulation/confirmation unit of Respondent's pesticide laboratory located in Tallahassee, Florida from May 25, 1990, through August 20, 1992. Marshall Gentry, a white male, provided overall supervision of the pesticide laboratory during Petitioner's employment. Petitioner's direct supervisor when he began work in the laboratory, however, was Wendy King, a female of oriental extraction. Subsequently, King was promoted and direct supervision of Petitioner was accomplished by Patty Lucas, a white female, who in turn was supervised by Wendy King. In the course of his employment with Respondent's pesticide laboratory, Petitioner exhibited a good attitude and received good performance ratings from Respondent. Included among these ratings was a special evaluation related to the conclusion of Petitioner's probationary period following his promotion from laboratory technician I to laboratory technician II. Two other laboratory technicians were employed in the pesticide laboratory. William Reeves, a black male, was employed as a laboratory technician IV in the formulation/confirmation unit of the laboratory. Elliott Healy, a white male, was employed as a laboratory technician III in the pesticide use monitoring unit of the laboratory. Both of these individuals were required to perform all the functions of a laboratory technician. The formulation/confirmation unit is the consumer protection component of the pesticide laboratory. The unit's field staff surveys the marketplace and collects samples of pesticides that are in channels of trade for distribution and sale. Those samples are then analyzed by the unit to assure that the contents of the package match the label guarantee, thereby providing reasonable assurances to consumers that the products which are sampled contain the represented contents. The pesticide use monitoring unit of the pesticide laboratory performs analyses associated with either groundwater sampling used to determine trace levels of pesticides or samples collected in association with determining misuse, property damage or human health damage connected with exposure to pesticides. Personnel in this unit are usually analyzing within the range of parts per billion, sometimes parts per million, and to prevent contamination the unit is separated from the formulation unit. The pesticide laboratory contains three permanent types of employees: Chemists (including supervisors), clerical and laboratory technicians. Each of these have their own duties and responsibilities. With regard to educational requirements, a chemist is required to have at least one college degree in the subject area of chemistry. Requirements for laboratory technicians are fairly minimal although a scientific education may play a part in initial assignment. In accordance with normal practices, training was provided to Petitioner commensurate with his position as a laboratory technician II, inclusive of some formal training but generally on the job training. William Reeves, the black laboratory technician IV, is presently in his junior year of undergraduate study in Entomology; Elliot Healy, the white laboratory technician III, received his degree in Entomology in 1979. Petitioner offered no evidence at final hearing regarding his education, except to state that he does not have a college degree. There is no laboratory technician position above the laboratory technician IV position. Neither Petitioner, Reaves or Healy meet requirements for promotion to the position of chemist since they do not possess the required chemistry degree. With regard to promotion within the laboratory technician family, no specific time periods are required to elapse before employees are granted a promotion. Such action depends upon other factors such as promotional opportunities. Duties within the laboratory are assigned on the basis of the position (e.g., chemist II, laboratory technician III, etc.) and the area where the individual is assigned. Race is not a consideration in making duty assignments. Twelve of Respondent's twenty-six laboratory technicians are white and fourteen are black. Laboratory technicians perform the duties required for their specific level without regard to the individual technician's race. The same is true of chemists in the laboratory. James Fort, a black chemist, performs the functions of a chemist. There are occasions or special events that occur from time to time when news media or officials tour the facility and all personnel are expected to help with cleaning the pesticide laboratory. The laboratory technicians, however, are responsible for the laboratory at large. This responsibility does not include the normal maintenance chores such as changing light bulbs, fixing water fountains and leaking sinks or similar functions since these duties are normally performed by a maintenance and grounds crew who also take care of the exterior grounds of the facility. The end product of the laboratory is the analytical result for which laboratory technicians and clerical staff provide support. Chemists or their supervisors perform the analytical chemistry work, quantitative analytical work and detailed analyses of samples, resulting in a laboratory report. Such work could require the use of nitrogen analyzers, gas chromatographs, high performance liquid chromatographs and other similar analytical instrumentation. Laboratory technicians perform the less technical tasks in the laboratory while clerical and support staff handle paperwork, correspondence and similar functions. Non-black employees, whether laboratory technicians or not, performed physical and other tasks of which Petitioner has complained. Such non-black employees include Marshall Gentry, Wendy King, Patty Lucas, David Bevis, Michael Bentley, Elliot Healy and David Goldston. Healy and Goldston are laboratory technicians in the pesticide laboratory. On January 22, 1992, Petitioner suffered a back injury in the course of assisting with the moving of a freezer at the laboratory. Numerous whites assisted in the moving the freezer, including Marshall Gentry, David Goldston, David Bevis, Michael Bentley, and three or four other unnamed white persons. None of the persons involved in moving the freezer had lifting belts. Laboratory services, a section within Respondent's Feed, Seed and Fertilizer Laboratory Bureau, functions as the receiver for all feed, seed and fertilizer samples for Respondent's laboratories. Marshall Gentry eventually discovered that assistance of laboratory services personnel would be required to move the freezer. After obtaining that assistance, Gentry withdrew from the effort of moving the freezer and went about other tasks. Gentry mistakenly thought that Petitioner had also returned to other duties. Petitioner did not report his injury to anyone on January 22, 1992, until after the movement of the freezer had been completed and disposal of packing materials accomplished. He was immediately taken to see a physician and an accident report was filed. Following his injury, supervisory staff made periodic inquires regarding Petitioner's physical condition and made good faith efforts to comply with the limited information flowing to them which placed physical restrictions on Petitioner. Petitioner received doctor's orders dictating that he not lift more than a certain amount of weight. Over the course of ensuing months, these orders varied the amount of weight that Petitioner could be expected to lift with weight limits ranging from as low as 10 pounds to as much as 20 or 40 pounds upon occasion. Eventually, Petitioner was given doctor's orders that prescribed "light work" for Petitioner. Petitioner did not elaborate on the doctor's orders to his superiors. Petitioner's supervisors determined that his disability would be accommodated through a practice whereby Petitioner would simply tell his supervisor if Petitioner felt unable to perform a particular task. There is no evidence that Petitioner's race was considered by his supervisors in the assignment of tasks to him. John Stupka, an Other Personal Services (OPS) employee with Respondent was assigned to the pesticide laboratory in April or May of 1991. He was not used, however, as a substitute for permanent laboratory technician employees although he did on occasion perform certain work that they would have performed if he had not been employed. He was never assigned to a position in any permanent employee class, including the laboratory technician class. Stupka was a white male premed student who was attending college in addition to his sporadic work with Respondent. He had no formal description of duties and was utilized as a temporary addition to the overall laboratory operation. Stupka's strong background in and interest in various chemical procedures permitted his utilization to a significant degree in this area, although he did not perform sophisticated chemical procedures. Generally, since his daily work schedule varied and lacked predictability as to when he would be present, the OPS employee was assigned long term duration projects such as cataloging information for a library of pesticide standards. On or about June 30, 1992, Petitioner felt concerned about what he perceived to be discriminatory treatment in the assignment of job tasks received by him and, unknown to any of his supervisors, filed a complaint with the Florida Human Relations Commission. The evidence of record fails to indicate the disposition of this complaint. 1/ At any rate, supervisory personnel were unaware of the complaint when Gentry, King and Lucas met with Petitioner on July 10, 1992, to discuss what activities could be undertaken by Petitioner. The meeting was precipitated by Petitioner's note to Patty Lucas on July 8, 1992, stating he could not comply with an assignment given to him by Lucas. Lucas excused him from the assignment. In the course of the meeting, his supervisors reiterated to Petitioner that he should perform only those tasks that he could perform and inform his supervisors of tasks that he could not perform. His supervisors anticipated that Petitioner would eventually recover and return to full duties. A functional capacity examination was not taken by Petitioner until August 25, 1992, due to cancellation of an earlier appointment. On August 20, 1992, Petitioner submitted his voluntary resignation stating that he was unable to perform the duties of the laboratory technician II position. When Marshall Gentry learned of the resignation letter on that date, he approached Petitioner to give him the opportunity to rescind the resignation. Petitioner responded that he recognized that the laboratory had a "big job to do" and that they "need somebody else to do it."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 14th day of July, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1994.
The Issue Is Wayne Dean (Dean) entitled to a radon mitigation specialist certificate issued by the Department of Health (the Department)? Is Radon Win, Inc. (Radon Win) entitled to a radon mitigation business certificate issued by the Department?
Findings Of Fact Radon gas is a radioactive gas that has been demonstrated to cause lung cancer and is a Class A carcinogen. It is odorless and colorless. Once the particles within the gas are inhaled, they are retained in the lung and irradiate lung tissue. Its health effects are not immediately manifested. Exposure over a long period of time increases the risk for contracting lung cancer. Mr. Dean had been issued certificate number RO228 to act as a radon mitigation specialist. That certificate was issued by the Department. The certificate was effective from January 1, 1996, through December 31, 1996. Mr. Dean is the President of Radon Win. Radon Win had been issued certificate number RB0251 to act as a radon mitigation business. The Department issued the certificate. The period of that certificate was from January 10, 1996 through January 9, 1997. Radon mitigation specialist certificates and Radon mitigation business certificates expire annually pursuant to Section 404.056, Florida Statutes, as reflected in the certificates held by Mr. Dean and Radon Win that have been described. Ordinarily the Department notifies certificate holders of the need to renew the certificates. Notification occurs once prior to the expiration date of the certificates. Another occasion for notification follows the month in which it expired and a third occasion for notification occurs if the certificate holders have not responded before the issuance of the third notice. More specifically, on March 3, 1997, the Department gave Mr. Dean notice to this effect: THIS IS A THIRD AND FINAL NOTICE. FAILURE TO RESPOND TO THIS NOTICE MAY INITIATE ENFORCEMENT ACTION. Performing radon services with an expired certification is a violation of the requirements of Florida Control of Radiation Hazards Regulations, Chapter 10D-91, Florida Administrative Code (F.A.C.). Department records show that you have not paid your annual radon certification renewal for the period January 01, 97 to January 01, 98 or notified this office of your intention to no longer provide radon measurement or mitigation services for financial or other remuneration. In accordance with the authority contained in section 404.056, Florida Statutes, you are hereby notified that if you are performing radon services after the expiration of your certificate, the department intends to impose an administrative fine of $250 against Wayne P. Dean, Jr., certification number RO228, for violation of the radon certification renewal requirements of section 10D-91.1304, F.A.C. You are further notified that you have thirty (30) days from the receipt of this notice in which to respond. If you are performing radon services you must remit the certification fee in the amount of $200. Otherwise, please provide written notice of your intention to no longer provide radon measurement or mitigation services for financial or other remuneration. If the department finds cause to issue an administrative complaint, you will be afforded the right to an administrative hearing. In reference to the March 3, 1997 letter from Norman M. Gilly, Health Physicist Manager, Bureau of Environmental Toxicology, Radon and Indoor Air Quality within the Department, addressed to Mr. Dean, the reference to Rule 10D-91.1304, Florida Administrative Code, should correctly have been made to Rule 64E- 5.1203, Florida Administrative Code. The latter rule was in effect when the correspondence was dated. On March 12, 1997, Mr. Dean wrote a check to the Department for $600 which was intended to defray the cost of renewing the two certificates that have been described and a radon measurement specialist certification, certificate number R1121 related to the Radon Win business. The latter certificate is not at issue in this case in that the Radon measurement specialist certificate has been issued. The check in the amount of $600 was received by the Department on March 18, 1997. Mr. Dean communicated with the Department on March 26, 1997, to advise that the $600 check might not be honored by the bank, in that there were insufficient funds in the bank account on which the check was drawn to cover the amount of the check. On April 28, 1997, Mr. Dean spoke with Walter G. Klein by telephone. Mr. Klein was and is with the Office of Environmental Toxicology Radon and Indoor Air Quality, part of the Department. His present position is as an Environmental Specialist III. While conversing, Mr. Klein asked Mr. Dean if Mr. Dean had spoken with his bank to see if the $600 check for payment of the renewal of the certificates had cleared. Mr. Dean responded that the check had not cleared and indicated his belief that the check had "bounced." This refers to the fact that the check had been dishonored by the bank. Mr. Dean then told Mr. Klein that Mr. Dean would try to collect enough money to send a money order to pay for the three certificates. On May 13, 1997, Janet M. Cooksey, Administrative Assistant II-C, Bureau of Radiation Control within the Department wrote to Radon Win, to the person concerned within that firm, to advise that the March 12, 1997 check to pay for the three certificates had been dishonored. That correspondence indicated that the concerned person at Radon Win had thirty days from the notice in the letter to tender payment in the full amount for the dishonored check plus a $30 service charge to address the dishonored check. According to the letter, the failure to pay $600 plus the $30 service charge would promote the possibility that the Department might surrender the dishonored check to the State Attorney for filing a criminal and/or civil action. This notice to Radon Win indicated that the further payment should be by cashier's check, money order, or, if personally delivered, by cash. The notice indicated the person and the place for return of the $630 in payment and listed the name of an individual who could be consulted concerning any questions about the notice. Subsequently, the Petitioners and the Department made an arrangement for Petitioners to submit a cashier's check in the amount of $880 which covered the renewal of the three certificates in the amount of $600; a $30 service charge for the dishonored check; and a level II administrative fine in the amount of $250, corresponding to the amount reflected in the March 3, 1997 letter from the Department to Mr. Dean concerning the penalty for performing radon mitigation services after Mr. Dean's radon mitigation specialist certificate had expired. The cashier's check was drawn on May 29, 1997, and received by the Department on May 30, 1997. Under the circumstances Ms. Cooksey returned the dishonored $600 check written on March 12, 1997, to Radon Win. The letter transmitting the dishonored check was written on June 9, 1997. On June 17, 1997, Mr. Klein wrote to Mr. Dean to advise, among other matters, that with the receipt of the $880 check on May 30, 1997, the renewal applications for the three certificates was considered complete as of May 30, 1997. The June 17, 1997 correspondence also indicated that other matters of concern that had been set forth in correspondence from Mr. Klein to Mr. Dean dated May 29, 1997, had been corrected. This May 29, 1997 letter stated grounds for denying renewal of the three certificates held by Petitioners. Nonetheless, the June 17, 1997 correspondence indicated that the Department continued to be concerned that Radon Win had installed previously unmentioned mitigation systems after certificates expired. The June 17, 1997 correspondence advised that the Department intended to inspect additional installations for compliance with Florida's mitigation installation standards before, what the correspondence described, as the deadline for issuing the renewal. This is read to mean before issuing or denying the three certificates sought by Petitioners. On August 28, 1997, the Department wrote to Mr. Dean to advise him concerning the decision to grant the radon measurement specialist certification (certificate number R1121); to deny Mr. Dean his radon mitigation specialist certificate, RO228, and to deny Radon Win its radon mitigation business certificate, RB0251. The specific grounds for denial were stated as: Wayne Dean and/or Radon Win, Inc. installed radon mitigation systems at the locations identified in a), b) and c) below, after the expiration dates of mitigation certificates RO228 and Radon Win, Inc.'s mitigation business certificate, RB0251. This determination is made under sections 404.056, and 404.162, Florida Statutes, and the rules promulgated thereunder, chapter 64E-5, Florida Administrative Code and constitute level II administrative violations as identified in the department's 'General Statement of Policies and Procedures for Radon Enforcement Actions.' On or about May 30, 1997, Wayne Dean and/or Radon Win, Inc. installed a radon mitigation system at 13465 N.E. 44th Court, Sparr, Florida. On or about May 21, 1997, Wayne Dean and/or Radon Win, Inc. installed a radon mitigation system at 8435 N.W. 43rd Lane, Ocala, Florida. On or about July 15, 1997, Wayne Dean and/or Radon Win, inc. installed a radon mitigation system at 4909 Buck Lake Road, Tallahassee, Florida. The radon mitigation systems identified in a), b) and c) below, installed by Wayne Dean and/or Radon Win, Inc., failed to meet all of the installation requirements of the Florida Standard for Mitigation of Radon in Existing Buildings. This standard is adopted and incorporated by reference by rule 64E- 5.1207, Florida Administrative Code. Therefore, each failure to comply is a violation of rule 64E-5.1207 and, constitutes a level II administrative violation as identified in the departments 'General Statement of Policies and Procedures for Radon Enforcement Actions.' In December 1995, Wayne Dean and/or Radon Win, Inc. completed installation of approximately 124 radon mitigation systems at Doral Pointe Apartments, whose offices are at 4630 N.W. 97th Court, Miami, Florida while in possession of a valid certificate. These mitigation systems do not have a 'soil gas system' labels or system monitoring devices to automatically indicate system failure to the system occupants, as required by sections 602.3, 4, 602.2, and 502.3 of the Florida Standard for Mitigation of Radon in Existing Buildings. The radon mitigation system installed on or about May 30, 1997, by Wayne Dean and/or Radon Win, Inc. at 13465 N.E. 44th Court, Sparr, Florida lacked the required spacing of 'soil gas system' labels and lacked proper system sealing, as required by sections 602.3.1 amid section 602.3.4 of the Florida Standard for Mitigation of Radon in Existing Buildings. The radon mitigation system installed on or about May 21, 1997, by Wayne Dean and/or Radon Win, Inc. at 8435 N.W. 43rd Lane, Ocala, Florida lacked system monitoring devices to automatically indicate system failure to the system occupants, contained unapproved vent piping material and did not gasket a 'crawlspace' door as required by section 502.3, 602.3.1, and 404.3 of the Florida Standard for Mitigation of Radon in Existing Buildings. Dr. Kaiss Al-Ahmady, an employee of the Department, in a conversation held with Mr. Dean at Mr. Dean's office, reminded Mr. Dean not to install radon mitigation systems without a license. This conversation took place on March 20, 1997. After sending the $600 on March 12, 1997, Mr. Dean advised Mr. Klein that he was installing a radon mitigation system at 8435 Northwest 43rd Lane, Ocala, Florida. On or about May 1997, Petitioners installed a radon mitigation system at 8435 Northwest 43rd Lane, Ocala, Florida. Mr. Klein had been advised by the owner of the residence in Sparr, Florida, which is the subject of this case, that Mr. Dean was going to install a radon mitigation system at that residence. Mr. Klein knew of the progress of the job and was aware when the system had been completely installed. On or about May 30, 1997, Petitioners installed a radon mitigation system at 13465 Northeast 44th Court, Sparr, Florida. On or about June 1997, Petitioners installed a radon mitigation system at 4909 Buck Lake Road, Tallahassee, Florida. In December 1995, while in possession of valid certificates issued by the Department, Petitioner's completed the installation of approximately 124 radon mitigation systems at Doral Pointe Apartments at 4630 Northwest 97th Court, Miami, Florida. In July 1997, Mr. Klein performed an inspection of the radon mitigation systems installed by Petitioners at the Doral Pointe Apartments, 4630 Northwest 97th Court, Miami, Florida. The inspection revealed that the systems were missing labels contemplated by the Florida Standard for Mitigation of Radon in Existing Buildings, effective: June 1, 1994 (the Florida Standard). In particular that requirement is set forth in Section 602.3.4. of the Florida Standards. In addition, the inspection revealed that the mitigation system lacked a system monitoring device as called for by Sections 502.3 and 602.2, of the Florida Standard. Mr. Klein performed an inspection of the radon mitigation system installed by Petitioners at 13465 Northeast 44th Court, Sparr, Florida. This inspection was performed on June 12, 1997. The labeling for the "soil gas system" was deficient, in that the labels were more than three feet apart. The problem with labeling was in contravention of Section 602.3.4, of the Florida Standard. On July 3, 1997, Mr. Klein inspected the radon mitigation system which Petitioners had installed at 8435 Northwest 43rd Lane, Ocala, Florida. The radon mitigation system that had been installed at the Ocala address was not a soil depressurization system as addressed in Chapter 6 of the Florida Standard. The system which Petitioners had installed at the Ocala address was not a mitigation system referred to as "crawl space depressurization." The Ocala radon mitigation system that Mr. Klein inspected did not have a system monitoring device called for in Section 502.3, of the Florida Standard.
Recommendation Based upon the facts found and the conclusions of law reached, it is RECOMMENDED: That a Final Order be entered which denies the request by the Petitioners to be granted a radon mitigation specialist certificate and a radon mitigation business certificate for Mr. Dean and Radon Win, respectively. DONE AND ENTERED this 5th day of March, 1998, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS 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) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1998. COPIES FURNISHED: Wayne Dean 1713 East Silver Springs Boulevard Ocala, Florida 34478 Radon Win, Inc. Wayne Dean, President Post Office Box 4257 Ocala, Florida 34478 Wayne Dean and Radon Win, Inc. 4255 Northeast 36th Avenue Ocala, Florida 34479 Patricia Matthews, Esquire Department of Health Building 6 Room 102 Tallahassee, Florida 32399-0700 Angela T. Hall, Agency Clerk Department of Health Building 6 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Health Building 6, Room 102-E 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether disciplinary action should be taken against Respondent's medical license, number ME 0043028, based upon violations of the Medical Practice Act, Chapter 458, Florida Statutes, as alleged in the three Administrative Complaints filed against Respondent in these consolidated proceedings.
Findings Of Fact Petitioner is the state agency charged with regulating the practice of medicine pursuant to Section 20.30, and Chapters 455 and 458, Florida Statutes. Respondent is and has been at all times material hereto a licensed physician in the State of Florida, having been issued license number ME 0043028. Respondent was selected for a residency program in general surgery at Mount Sinai Hospital, which is a five year program. Respondent's participation in the general residency program at Mount Sinai was terminated during his third year of the program. Senior surgical residents in the Mount Sinai program are selected from among fifth year residents. Respondent did not attain the status as a senior surgical resident. Respondent has no formal training in plastic or cosmetic surgery. Respondent is not a plastic surgeon and is not qualified to practice plastic or reconstructive surgery. FACTS RELATED TO COUNTS 1-3 OF DOAH CASE NO. 92-5795 On or about January 23, 1990, patient J. M., a twenty-six (26) year old female, presented to Respondent's office for consultation. Respondent performed a physical examination of J. M. and made a diagnosis of breast hypoplasia. Breast hypoplasia is a general term used to describe small breasts. Respondent failed to obtain a thorough initial medical evaluation and medical history for patient J. M. On or about January 26, 1990, Respondent performed a bilateral augmentation mammoplasty on patient J. M. A bilateral augmentation mammoplasty is a procedure in which the surgeon dissects a pocket behind the breast tissue or behind the muscle that sits under the breast tissue and implants a prosthesis in the pocket in order to augment a patient's breasts. Respondent failed to make a descriptive operative report of the procedure he performed on J. M. Postoperatively, scar tissue developed around the prosthesis that had been implanted in J. M.'s right breast, and her right breast hardened. On March 6, 1990, Respondent performed a closed capsulotomy on patient J. M.'s right breast. A closed capsulotomy is a procedure that exerts pressure on a women's breast that has an implant in it in order to try to fracture the scar around the implant and thereby release the spherical capsular contracture (hard breast). This was an acceptable procedure and resolved J. M.'s complaint. On or about September 4, 1990, Respondent performed a bilateral mastopexy and abdominal liposuction on patient J. M. A mastopexy is a breast lift procedure in which excess skin is removed in order to raise the breast and the nipple areola complex to a preferred position. Respondent failed to make a descriptive operative report of these procedures. Respondent failed to order the appropriate laboratory studies prior to these procedures. On or about October 12, 1990, patient J. M. presented to Respondent complaining of a scab peeling off of her breast with the implant being visibly exposed. Respondent treated patient J. M. with Neosporin ointment and Duricef. Respondent then sutured the wound closed. Neosporin is a local bacterial ointment used to treat local wound infections. Duricef is an oral antibiotic. Respondent should have obtained a culture of the wound, removed patient J. M.'s implant, irrigated the wound, administered antibiotics, and then closed the wound. After a culture was obtained, Respondent should have placed the patient on antibiotics, and then after receiving the culture report, modified the antibiotic as necessary. Respondent failed to practice medicine with an acceptable level of care in regards to patient J. M., in that Respondent failed to recognize that patient J. M. had developed a serious infection and failed to appropriately treat the infection. Respondent is not trained to perform mastopexy, augmentation, or liposuction procedures. Respondent performed breast implantation surgery and liposuction procedures on patient J. M. without having adequate training. FACTS RELATED TO COUNTS 4-8 OF DOAH CASE NO. 92-5795 A. M. S. is a female who was 34 years old at the time of the formal hearing. On or about January 25, 1991, A. M. S. presented to Respondent's office. Patient A. M. S. desired fuller lips. Respondent's medical records lists the "Paris Lips" procedure as the reason for her visit. "Paris Lips" is a procedure performed by Respondent during which liquid silicone is injected into the patient's lips. In the early 1970s, Dow Corning sought a new drug application from the United States Food and Drug Administration (FDA) for use of silicone as an injectable substance for use in human tissue. Silicone occurs in either solid or liquid form. A study was authorized by the FDA which allowed eight physicians, seven plastic surgeons and a dermatologist, to carry out injections in certain types of human subjects, primarily in the face. After these studies, the doctors involved issued a statement which concluded that the risk and dangers of liquid silicone injections far outweighed the benefits, and the new drug application was withdrawn. At the times pertinent to this proceeding, the use of liquid silicone was under FDA control. In 1991, liquid silicone was considered to be an experimental substance. Now it has been banned from use completely. The injection of liquid silicone is not an accepted procedure in the medical community. The use of liquid silicone without an Investigational Device Exemption is a violation of Federal law. Respondent has never had authorization from the FDA for the use of liquid silicone for facial or soft tissue augmentation. Patient A. M. S. paid Respondent $500.00 for the "Paris Lips" procedure. On or about January 31, 1991, Respondent injected 2 cc's of liquid silicone into the lips of patient A. M. S. Neither Respondent nor his staff performed any physical examination on patient A. M. S. prior to the injections. Respondent's medical records indicate that he explained the benefits and risks of silicone to patient A. M. S. and that patient A. M. S. agreed to the procedure. Respondent told patient A. M. S. that there would not be any side effects, just a little swelling and some bruising. The testimony of A. M. S. established that Respondent did not adequately discuss the risks or benefits of liquid silicone injections with patient A. M. S. Following the procedure, patient A. M. S. noted that her lips were very swollen and red. Approximately 2-3 weeks after the procedure, patient A. M. S. presented to Respondent's office complaining that he had placed too much silicone in her lips and that her lips were uneven and appeared deformed. In response to these complaints, Respondent injected additional liquid silicone into patient A. M. S.'s lips on February 8, 1991, and March 4, 1991, in an effort to even out the lips. After these additional injections of silicone, patient A. M. S. felt her appearance was horrendous and it affected her job as a court reporter. Patient A. M. S. expressed her dissatisfaction to Respondent. Subsequently, patient A. M. S. sought additional opinions from other plastic surgeons, including the opinion of Dr. Harold Norman. Dr. Norman took pictures of patient A. M. S. and told her to return in two months. Patient A. M. S. sought the opinion of Dr. Anthony Wolfe. Dr. Wolfe told patient A. M. S. that nothing could be done for her condition, in that there is no easy way to remove liquid silicone. Patient A. M. S. then sought the opinion of Ernest DiGeronimo, M.D. Dr. DiGeronimo performed four surgeries in an effort to correct the effects of Respondent's liquid silicone injections on patient A. M. S. Each surgery by Dr. DiGeronimo cost patient A. M. S. $800.00. Respondent inappropriately injected liquid silicone into the lips of patient A. M. S. Respondent exploited patient A. M. S. for financial gain. Respondent committed gross malpractice in his treatment of patient A. M. S. by injecting her lips with liquid silicone. FACTS RELATED TO COUNTS 9-11 OF DOAH CASE NO. 92-5795 At all times material hereto, on numerous and diverse occasions, Respondent has performed on male patients a procedure he calls the "Circumferential Autologous Penile Engorgement," hereinafter "CAPE". The CAPE procedure is used to enlarge the girth of the penis by taking fat from one part of the body and injecting it into the walls of the patient's penis. The CAPE procedure was developed by Respondent. Respondent is not trained to perform the CAPE procedure, and the procedure is not recognized as being a medically acceptable procedure. On or about November 19, 1991, DPR Investigator Thomas Daniels, presented to Respondent's office in an undercover capacity using an assumed name, that of patient T. M. Mr. Daniels discussed the CAPE procedure surgery with Respondent and scheduled an appointment with Respondent to undergo the CAPE procedure on or about December 3, 1991. Respondent indicated that the CAPE procedure was a very low risk procedure. In fact, the CAPE procedure has potentially serious complications including, but not limited to, hematoma, infection, loss of the patient's penis, necrosis, functional problems, and scar tissue. The statements made by Respondent to Mr. Daniels regarding the CAPE procedure were deceptive, fraudulent, and untrue. On or about December 5, 1991, Petitioner issued subpoena number A023965 to Respondent in order to obtain Respondent's complete medical records of Patient T. M. (Mr. Daniels.) The records of Mr. Daniels' undercover visit of November 19, 1991, state in part the following: "Rectal exam requested by patient, no abnormalities." Neither Respondent, nor his staff, conducted a rectal examination on Mr. Daniels. FACTS RELATED TO COUNTS 12-13 OF DOAH CASE NO. 92-5795 Pursuant to Section 455.24, Florida Statutes, in any advertisement for a free, discounted fee, or reduced fee service, examination, or treatment by a health care provider licensed under Chapter 458, Florida Statutes, the following statement shall appear in capital letters clearly distinguishable from the rest of the text: THE PATIENT AND ANY OTHER PERSON RESPONSIBLE FOR PAYMENT HAS A RIGHT TO REFUSE TO PAY, CANCEL PAYMENT, OR BE REIMBURSED FOR PAYMENT FOR ANY OTHER SERVICE, EXAMINATION, OR TREATMENT WHICH IS PERFORMED AS A RESULT OF AND WITHIN 72 HOURS OF RESPONDING TO THE ADVERTISEMENT FOR THE FREE, DISCOUNTED FEE, OR REDUCED FEE SERVICE, EXAMINATION, OR TREATMENT. Around October 1991, Respondent placed an advertisement in The Miami Herald newspaper for a procedure he defined in the advertisement as "The Closed Neck Lift," and described it as "an exciting new procedure" which leaves "no scar." The aforementioned advertisement also offered a free consultation and video imaging. The aforementioned advertisement failed to include the disclaimer noted in Section 455.24, Florida Statutes. In a letter to a DPR investigator dated November 20, 1991, Respondent described the aforementioned closed neck lift procedures as performed by the use of liposuction. The aforementioned procedure has been practiced in the United States for approximately the past ten (10) years and is not "new." The aforementioned procedure leaves a small scar. On or about October 16, 1991, Respondent placed an advertisement in The Fort Lauderdale Sun-Sentinel which offered a free consultation and video imaging session. The October 16, 1991, advertisement failed to include the disclaimer statement required by Section 455.24, Florida Statutes, when free or discounted medical services are being offered. Respondent failed to include the disclaimer required by Section 455.24, Florida Statutes, in regards to the October 1991 Miami Herald and the October 1991 Fort Lauderdale Sun-Sentinel advertisement. FACTS RELATED TO DOAH CASE NO. 92-5794 On or about January 7, 1992, patient C. M. R., a 47 year old male, presented to Respondent's office for a first consultation. Approximately twenty years prior to his visit to Respondent, Patient C. M. R. had undergone aortic valve replacement and the insertion of a pacemaker. He had been on the drug Coumadin for approximately twenty years. Respondent's medical records for patient C. M. R. fail to reflect that patient C. M. R. had a pacemaker. Respondent knew that patient C. M. R. had been taking Coumadin for the past twenty years. Coumadin is an anticoagulant drug used to prevent the development of blood clots. A recognized effect of Coumadin is that it causes patients who are taking it to bleed following any surgical procedure. Respondent's plan for patient C. M. R. included liposuction of the face and neck. Patient C. M. R. was to also undergo a CAPE procedure. Respondent's medical records for patient C. M. R. fail to reflect that Respondent obtained the patient's cardiology records, or as an alternative, obtained a cardiology consult prior to allowing patient C. M. R. to undergo elective cosmetic surgery. Respondent should have obtained medical clearance from a cardiologist or internist prior to patient C. M. R.'s surgery. On April 23, 1992, patient C. M. R. returned to Respondent's office to schedule surgery. Patient C. M. R.'s blood was drawn and pre-operative blood tests included a thyroid test, electrolytes, bone, renal, ferritin studies, a complete blood count, and an HIV test. No protime, prothrombin time, or clotting time was obtained by Respondent. A prothrombin time is a test that measures the level of the blood's anticoagulation. On the evening of May 1, 1992, patient C. M. R. presented to Respondent's clinic for surgery. Patient C. M. R.'s wife, L. M. R., dropped him off at Respondent's clinic at approximately 8:00 p.m. on May 1, 1992. Patient C. M. R. was prepared for surgery. An intravenous solution of 1,000 cc's of lactate of ringers was administered. Papaverine 30 milligrams was injected into the penis, and 3 cc's of Xylocaine 1 percent with Epinephrine (a topical anesthetic) were used for local anesthesia. Respondent extracted 100 cc's of fat from the patient's abdomen and neck. Respondent performed the CAPE procedure using 60 cc's of the fat extracted from the abdomen. Respondent placed a pressure dressing on the neck and placed packing in the buccal space of patient C. M. R.'s cheeks. Respondent's medical records for patient C. M. R. indicated that during the early morning hours on May 2, 1992, C. M. R. began oozing blood from his right cheek while in recovery and was taken back to the operating room. At approximately midnight, Respondent informed L. M. R., who had previously returned to Respondent's clinic, that patient C. M. R. was suffering bleeding complications from one of his cheeks. At approximately 1:30 a.m., Respondent called a Dr. Zufi and requested a consultation. Dr. Zufi arrived at Respondent's clinic at approximately 2:00 a.m. and went directly to the operating room to consult with Respondent. Digital pressure and Epinephrine were used to control the oozing from patient's C. M. R.'s right cheek. Patient C. M. R. was then returned to recovery. L. M. R. asked Respondent if it was necessary to transport C. M. R. to a hospital. Respondent informed L. M. R. that it was not necessary to transport the patient to a hospital, and C. M. R. remained in the recovery room at Respondent's clinic. On May 2, 1992, at 11:30 p.m., a sublingual pill of Nitroglycerin was given because patient C. M. R. complained of midline discomfort. On May 3, 1992, at approximately 1:10 a.m., Respondent was awakened by the monitor alarm with the monitor reading oxygen saturation at 80 percent and the pulse at 90. Respondent found patient C. M. R. unresponsive and his pupils dilated. Respondent called "911" and Dr. Zufi for assistance. The Emergency Medical Technicians (EMTs) arrived at approximately 1:16 a.m. The EMTs entered Respondent's clinic and observed patient C. M. R. The EMTs observed a pulse meter, but did not observe a blood pressure monitor or crash cart. Respondent was attempting to suction the patient when the EMTs arrived. Patient C. M. R. was very discolored, bruised, and was suffering a lot of edema. Patient C. M. R. had bandages wrapped around his face. When questioned about the patient's discoloration, Respondent indicated that the patient had been taking Coumadin. The EMTs placed patient C. M. R. on a cardiac monitor. The cardiac monitor revealed the patient to be in full cardiopulmonary arrest. At this time, patient C. M. R. had a idioventricular rate of approximately 20. An idioventricular rate is an electrical impulse in the ventricles only, where the heart is in the last death stages with no pulse. The EMTs made two unsuccessful attempts to intubate C. M. R. The EMTs eventually successfully intubated the patient with a computube. A computube has two lumens (openings). One lumen is a breathing passage and the other is a blind passage. A computube is a foolproof intubation system. The construction of the computube allows it to function in either the trachea or the esophagus. Patient C. M. R.'s heart rhythm remained idioventricular. The EMTs changed the patient's IV and administered medication to the patient. Patient C. M. R. remained unresponsive despite the medications and other efforts to revive him. Respondent indicated to the EMTs that the patient was hypovolemic and needed to go to the emergency room. Patient C. M. R. was then transported to Mercy Hospital where he was pronounced dead at approximately 1:56 a.m. on May 3, 1992. At approximately 9:15 a.m. on May 3, 1992, J. David Charlesworth, M.D., the Associate Medical Examiner at the Dade County Medical Examiner's Department, performed an autopsy on patient C. M. R. The autopsy report indicates, among other things: extensive purple-red contusions surrounding the incision in the lower abdomen, extending down to, and involving the scrotum; extensive blue-purple contusion covering the right flank and anterior abdominal wall; blue-purple contusion covering the anterior neck up to and including the jaws; contusion extending up to the ear lobes and onto both cheeks; upper eyelids of both eyes suffused with extravasated blood; soft tissues of both sides of the neck suffused with extravasated blood extending from the jaw line down to the prevertebral fascia and down to the clavicles; hemorrhagic and fat globules seen in blood pool collected in the pelvic area; and large abdominal wall hematoma. The cause of death was reported as cardiorespiratory arrest following liposuction and other plastic surgery procedures, with interstitial hemorrhages of the face, neck, abdomen, and legs. The patient suffered interstitial hemorrhages (bleeding into tissues). The computube in patient C. M. R.'s esophagus did not contribute to the patient's death. A cardiac pathological examination of patient C. M. R.'s heart revealed that the heart was slightly larger than normal, had scars covering the heart, and had a prosthetic aortic valve. Neither his prosthetic aortic valve or his pacemaker caused C. M. R.'s death. Respondent failed to adequately assess patient C. M. R.'s condition, in that Respondent failed to obtain a prothrombin time (PT), or a partial thromboplastin time (PTT) preoperatively. Respondent failed to practice medicine with an acceptable level of care in regard to patient C. M. R. in that Respondent should have discontinued the use of Coumadin prior to proceeding with this elective surgery. In general, patients who are anticoagulated with Coumadin who require surgery are admitted to a hospital and weaned off of Coumadin prior to surgery. Surgery is performed with the patient in a normal hemostatic status. Within 24 hours following surgery, anticoagulation medication is reinstituted. Respondent did not have any hospital staff privileges from 1988 to the present. Hospital staff privileges are obtained after an application is made to a hospital following the physician's completion of his training in order to be credentialed by that hospital to practice his specialty at that hospital. Because Respondent did not have hospital privileges, he did not have access to a hospital to admit C. M. R. so that he could continue his treatment after the complications occurred. It is highly unusual for a surgeon to practice his profession without hospital privileges. Despite postoperative bleeding complications, Respondent failed to refer Patient C. M. R. to a hospital emergency room in a timely, and appropriate manner. Even without hospital privileges, Respondent could have referred patient C. M. R. to a hospital emergency room. Respondent's failure to timely refer patient C. M. R. significantly contributed to the patient's death. Respondent failed to practice medicine with an acceptable level of care in regards to patient C. M. R. in that Respondent failed to: perform a thorough initial evaluation and history of the patient; preoperatively obtain a prothrombin time (PT), or a partial thromboplastin time (PTT); discontinue the use of Coumadin and/or take other precautions before proceeding with cosmetic surgery; and failed to refer the patient to a hospital emergency room in a timely and appropriate manner when C. M. R. began to ooze blood immediately after the surgery. Respondent failed to properly diagnose all medical and surgical problems of patient C. M. R. prior to the performance of surgery and failed to properly manage the postsurgical care of patient C. M. R. Respondent committed gross malpractice in regards to patient C. M. R. FACTS RELATED TO DOAH CASE NO. 92-6588 Respondent placed an advertisement in The Miami Herald on or about December 5, 1990, which purportedly offered a new technique in cosmetic surgery, specifically, lip augmentation. Respondent advertised lip augmentation, or "Paris Lips," as a "perfectly safe and painless procedure" which creates fuller, more sensuous lips. The advertisement does not indicate how Respondent's procedure creates fuller lips. Respondent's lip augmentation procedure is performed by injecting silicone into a patient's lips. Respondent's "Paris Lips" advertisement is false, deceptive, or misleading, in that it indicates the "Paris Lips" procedure is a "perfectly safe and painless" procedure. The dangers of silicone injections include infection bleeding, hematomas, permanency, and/or migration of the silicone. The use of liquid silicone for the augmentation of human tissue is tightly regulated by the Food and Drug Administration (FDA) and liquid silicone is only to be used by those physicians under FDA approval. Respondent does not have, nor has he ever had, FDA approval to perform augmentation of human tissue by use of liquid silicone. Respondent's "Paris Lips" advertisement is false, deceptive, or misleading, in that it fails to indicate that the "Paris Lips" procedure is performed by injecting liquid silicone into the patient's lips. Respondent's advertisement further offered the "Paris Lips" augmentation procedure "for a limited time only, for $500.00," and a free consultation and video imaging session. Respondent's "Paris Lips" advertisement fails to include the necessary disclaimer required by Section 455.24, Florida Statutes, when free or discounted services are being offered.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order which adopts the findings of fact and conclusions of law contained in this Recommended Order and which: Finds that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, as alleged in Count 1 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, as alleged in Count 2 of DOAH Case No. 92-5795. It is recommended that no separate penalty be imposed for this violation. Finds that Respondent violated the provisions of Section 458.331(1)(v), Florida Statutes, as alleged in Count 3 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, as alleged in Count 4 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the revocation of Respondent's licensure. Finds that Respondent violated the provisions of Section 458.331(1)(q), Florida Statutes, as alleged in Count 5 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the revocation of Respondent's licensure. Finds that Respondent violated the provisions of Section 458.331(1)(n), Florida Statutes, as alleged in Count 6 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(v), Florida Statutes, as alleged in Count 7 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, as alleged in Count 8 of DOAH Case No. 92-5795. It is recommended that no separate penalty be imposed for this violation. Finds that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, as alleged in Count 9 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(v), Florida Statutes, as alleged in Count 10 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(k), Florida Statutes, as alleged in Count 11 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(d), Florida Statutes, as alleged in Count 12 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(g), Florida Statutes, as alleged in Count 13 of DOAH Case No. 92-5795. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(t), Florida Statutes, as alleged in Count 1 of DOAH Case No. 92-5794. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the revocation of Respondent's licensure. Finds that Respondent violated the provisions of Section 458.331(1)(m), Florida Statutes, as alleged in Count 1 of DOAH Case No. 92-5794. It is recommended that no separate penalty be imposed for this violation. Finds that Respondent violated the provisions of Section 458.331(1)(v), Florida Statutes, as alleged in Count 3 of DOAH Case No. 92-5794. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the revocation of Respondent's licensure. Finds that Respondent violated the provisions of Section 458.331(1)(x), Florida Statutes, as alleged in Count 4 of DOAH Case No. 92-5794. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $5,000 and the revocation of Respondent's licensure. Finds that Respondent violated the provisions of Section 458.331(1)(d), Florida Statutes, as alleged in Count 1 of DOAH Case No. 92-6588. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. Finds that Respondent violated the provisions of Section 458.331(1)(g), Florida Statutes, as alleged in Count 2 of DOAH Case No. 92-6588. It is recommended that the penalty for this violation be the imposition of an administrative fine in the amount of $1,000 and the suspension of Respondent's licensure for a period of one year. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 7th day of December 1993. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of December, 1993. COPIES FURNISHED: Arthur B. Skafidas, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Dr. Ricardo Samitier-Cardet 5831 Southwest 26th Street Miami, Florida 33155 Dorothy Faircloth, Executive Director Board of Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0770 Jack McRay, Acting General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent violated Section 760.10, Florida Statutes, by denying Petitioner employment with Respondent because of her sex (female).
Findings Of Fact Petitioner, a female and a member of a protected class, completed an application for employment with Respondent in or about February of 2002 for the position of Wastewater Operator "C." The particular position she applied for was a night shift position which runs from 11:00 p.m. to 7:00 a.m. In February of 2002, Respondent had an opening for a Class "C" Wastewater Operator's position. Prior to that time, this position had been open for approximately one year. Respondent's standard interview process for a wastewater position is that Charles McDonald ("McDonald"), the Wastewater Production Supervisor, reviews the applications to see if they have the minimum qualifications for the open position. If the applicant possesses the minimum requirements, McDonald will schedule an initial appointment with the applicant. At this initial appointment, McDonald reviews the duties of the position with the applicant and finds out some general background on the applicant. Once that is accomplished, McDonald will arrange for an interview with his superior, James Anselmo ("Anselmo"), the Division Chief over the water and wastewater treatment facilities of Respondent. Anselmo, in his capacity as a Division Chief, oversees the operations of the water and wastewater treatment facilities of Respondent, as well as all the personnel matters in those departments. Anselmo has served as a supervisor for Respondent for fourteen (14) years, and during that time has not had any grievances or complaints of discriminatory treatment filed against him. The Wastewater Operator "C" that Respondent was seeking to hire was to perform chemical analysis and perform general preventative maintenance work. This chemical analysis work on the water samples consists of performing "solids determination, chlorine residual and pH determination; perform [ing] sludge volume tests; measure dissolved oxygen levels; perform [ing] chlorine residual test; turbidity and telemetry monitoring." These chemical testing duties consist of more than gathering samples, but also include taking them to the lab, actually performing the tests and then reading and recording the results. These lab-testing duties are considered an essential function of this position. The job description for this position also states that an operator "performs general preventive maintenance work" on machines. Anselmo considered this requirement to include changing packing on pumps, changing oil, greasing motors and pumps, making adjustments on machines and fixing broken lines. He feels this requirement is important because it is necessary to have all of his wastewater employees cross-trained to perform multiple functions. Petitioner's application was initially forwarded to Anselmo, who reviewed it and was impressed with the fact that the applicant possessed an "A" license. As a result, he forwarded the application to McDonald to initiate the interview process. It made no difference to Anselmo whether the applicant was a male or a female. In or about March 2002, McDonald contacted Petitioner by telephone and arranged for her to come meet him for an initial interview. During this initial interview with McDonald, Petitioner indicated to him that she did not perform any maintenance duties at her previous employment with the City of Orlando. McDonald mistakenly understood Petitioner to say that she did not do any lab work at the City of Orlando, but rather it was done at the laboratory by others. After the initial interview with McDonald, he spoke with Anselmo and informed him that he had a lady that had put in for the Wastewater Operator "C" position, and suggested that he interview her. McDonald did not emphasize the fact that Petitioner was a female, but rather made his usual comment that it was either a lady or a guy that was coming in for the interview. Anselmo indicated that McDonald should bring her over immediately for the second interview. Petitioner then had an interview with Anselmo in his office later that same day. This interview began by Anselmo and Petitioner shaking hands. McDonald was present and handed Anselmo a copy of Petitioner's application. Prior to this meeting, Anselmo had not been in possession of a copy of Petitioner's application, other than his very brief initial review of it. Before getting into the substantive interview, Anselmo initially said to Petitioner "Carmen Christensen, that's a very unique name. I went to school with a friend, and his name was Carmen also." Anselmo intended this comment simply to be small talk, and to serve as an "ice breaker." Anselmo and McDonald both testified that Anselmo never stated to Petitioner: "I thought you were a man with the name Carmen." They also denied that Anselmo stated "I went to school with a twin by that name." Anselmo made no references to Petitioner's gender during the interview. This testimony is credible. After this initial "ice breaker," Anselmo then reviewed Petitioner's application and began asking her questions about it. As a result of not seeing the application prior to this, Anselmo got a few of the minor items on her application wrong. On her application, Petitioner indicated that her duties at the City of Orlando had required her to "grab samples." In reading this, Anselmo assumed that this meant that Petitioner simply gathered water and did not perform any laboratory tests on the sample. Thus, Anselmo was hoping that Petitioner would elaborate and demonstrate to him that she had actually performed laboratory testing on these samples. During the interview, Anselmo asked Christensen questions about her duties at the City of Orlando. Petitioner responded that she simply collected samples and carried them to the lab, and occasionally, ran a few tests. Petitioner did not share any specific types of tests that she had done while at the City of Orlando. Anselmo encouraged Petitioner to take the opportunity during the interview to elaborate on these duties, but she failed to do so. When he asked her whether she had performed specific tests, she respondent that she did not because laboratory employees had performed those tests at the City of Orlando. Petitioner also did not present Anselmo with any of the written certificates that she now claims she possesses. At no time during the interview did Petitioner give Anselmo sufficient reason to believe that she did more than gather water samples at her previous job and bring them to the lab. During the interview, Anselmo also asked Petitioner questions about her maintenance duties while at the City of Orlando. Petitioner responded that maintenance work at the City of Orlando was done by maintenance personnel and, thus, she had not done any such work. Finally during the interview, Anselmo asked Petitioner about the reasons for her termination by her previous employer, the City of Orlando. Petitioner informed Anselmo that she had been terminated from the City of Orlando based on allegations of "falsified records." The City considers allegations of falsification of records to be a serious violation. Anselmo was not able to verify the reasons for Christensen's termination from the City of Orlando because she had indicated on her application that they could not contact her previous employers. Based on this request by Petitioner, Anselmo made no independent efforts to verify the reason for her termination. At no time during the interview did Anselmo ever tell Petitioner that he did not want females working at the facility. In fact, Anselmo testified that he hires employees based simply on their qualifications, not their gender; although no other female operator is employed by Respondent. Other than the alleged comment about her name, Petitioner did not offer any other evidence that Anselmo had any problem with women working in the wastewater facility. Instead, Petitioner gave her "opinion" that she was not hired because she is a female. At the end of the interview, Anselmo informed Petitioner that Respondent was still accepting applications for the position. Following the interview, Anselmo and McDonald discussed Petitioner's qualifications as a candidate. They agreed that she appeared to be inexperienced based on her responses during the interview. In particular, they were concerned with her lack of maintenance and laboratory testing experience. Anselmo completed an Applicant Referral form on or about March 12, 2002, in which he indicated that Petitioner had been "rejected" for the position of Wastewater Operator "C." On that form, Anselmo indicated that Petitioner had been rejected for employment because she "said she had no lab experience or did not perform any maintenance. Performing lab tests and maintenance is crucial to this position." Anselmo testified that this form accurately sets forth the reasons on which he made the decision to reject Petitioner for employment. Subsequent to Petitioner's interview, McDonald and Anselmo had the opportunity to interview two additional candidates, Richard Neitling ("Neitling") and Richard Burns ("Burns"). Neitling set forth more laboratory testing experience than Petitioner in his interview and on his resume. He indicated during his interview with Anselmo that he had done the specific laboratory tests that Respondent does at its wastewater facility, including BOD's, suspended solids, mixed liquid suspended, sludge samples and TSS. He also indicated during his interview that he had maintenance experience, including tearing down pumps, changing filters and oiling and greasing machines. Based on these expressed qualifications and experience set forth in his application and presented during his interview, as well as the fact that he was a "C" Operator and that was the actual position being offered, Neitling was offered the position of Operator "C." It was later discovered, however, that Neitling had provided false information on his application, and, therefore, he was never actually hired for the position. Respondent then turned its attention to the application of Burns. On his application and resume, Burns indicated that he could perform "all aspects of treatment plant op's." In addition, he indicated that he had 15 years experience as a wastewater plant operator, and that he possessed a Level "A" operator's license, the same license possessed by Petitioner. After submitting his application for employment to Respondent, Burns received an interview from McDonald and the lead operator, Tad Blazer ("Blazer"). During this interview, Burns informed McDonald and Blazer that he had previously done laboratory testing including OUR's, BOD's, fecal's and others. They also asked Burns about his maintenance skills, and he informed them that he had received cross-training in maintenance, preventive maintenance and pulling of pumps while at Orange County. Approximately a week after this initial interview, Burns had an interview with Blazer, McDonald and Anselmo. In this second interview, Burns again shared his laboratory testing experience, his maintenance skills and his cross-training. In particular, Burns represented that he could do all of the laboratory testing that the position required, and that he had extensive background in equipment maintenance. Burns also indicated to Anselmo that he had 15 years of experience in all aspects of the treatment process, including lab work and maintenance duties. In addition, Burns informed them that he had spent two months at Orange County in a cross-training program that consisted of him performing strictly maintenance duties. During this interview, Burns also shared with Anselmo the reasons for his leaving Orange County. He informed Anselmo that he had been terminated by mutual agreement, but that the reasons for the termination involved a conflict with one supervisor, not actual performance problems. Following this interview, but prior to hiring him, Anselmo and McDonald visited Orange County's personnel department and reviewed Burns' file. In reviewing his file, they discovered that he had exceptional evaluations except for his last year, and that the only negative comments in his file involved failure to give proper notice prior to taking a vacation. There were no allegations of falsification of any records in Burns' file at Orange County. Based on his background and hands-on experience, Burns was eventually hired by Respondent for the Operator "C" position in May of 2002. At the time he was hired, Burns could perform all of the functions set forth on Respondent's job description for the position of an Operator "C." More importantly, he had conveyed to McDonald and Anselmo that he was capable of performing all of those duties. Respondent's wastewater facility is smaller than the facility that Petitioner worked at while with the City of Orlando. In fact, the City of Orlando's facility has a capacity of 25 million gallons of water a day, while Respondent's facility can handle only 750,000 gallons per day. In addition, the City of Orlando employs two or three times more employees that Respondent. William Hurley ("Hurley"), the Section Manager for the Orange County Wastewater Utility, testified that he has been employed in the wastewater industry for 28 years, and has worked at four different facilities during that time. In his experience, larger facilities often require different tasks from their operators than smaller facilities require of operators. Hurley also testified that he plays a role in the hiring of operators at Orange County. In this capacity, he would consider it a serious violation, and it would give him serious concern, if an applicant revealed to him during the interview process that there were allegations of her committing a falsification of records at her previous employer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES the Petition for Relief. DONE AND ENTERED this 31st day of January, 2003, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2003. COPIES FURNISHED: Carmen Christensen 5419 Shiloh Drive Adamsville, Alabama 35005 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Paul J. Scheck, Esquire Shutts & Bowen LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Donald A. Moyant, Petitioner, operates a contractors' exam school in Brandon, Florida, at which he preps builders to take the CILB exam for licensure as contractors. Petitioner took the exam given in June 1985 and received a score of 58.60. A score of 70.00 is required to pass this examination. The only answer that Petitioner questions is the answer he supplied to question No. 2, which related to the number of reinforcing bars required in a concrete slab of given dimensions and spacings of the bars. In Petitioner's solution to the problem he dropped the fractional bar that resulted from dividing the length of the slab by the spacing between bars. The correct solution requires the addition of a bar for this fractional spare. Petitioner's purpose in pursuing this proceeding is to obtain information to use in his Contractors Exam School, Inc. Since he would not have passed the examination even if his solution to question No. 2 had been marked correct, Petitioner is without standing to bring this action because he is doing so on behalf of the school he runs and not to allow him to receive a passing grade.
