Findings Of Fact James A. Bryington is duly licensed by the FCILB as a general contractor aid as a registered pool contractor holding licenses c 00 1353 and RP 0021851 respectively. In late 1974 or early 1975 he was approached by officers of Trend to qualify their corporation as a duly licensed contractor. At the time Trend was bidding on school projects arid offered Bryington control of one of the schools if their bid was successful plus a small percentage ownership of Trend. On March 4, 1975, Bryington submitted Request for Change of Status (Exhibit 9) to FCILB with the necessary attachments to qualify Trend as a licensed corporate contractor in Florida and Trend was duly certified. Part ownership of Trend was never given to Bryington and no evidence was presented what, if any, other consideration was received by Bryington for his role in qualifying Trend as a licensed general contractor. The school bid was not obtained by Trend and at no time thereafter was Bryington involved in any operations or supervision of the construction projects undertaken by Trend. By contract dated March 31, 1976, Hal H. and Carolyn S. Gill entered into a contract with Trend to construct a residence for them. The contract was executed by Edwin Porter, the president of Trend, on behalf of the contractor. Bryington was unaware of this contract, or of several other construction contracts entered into by Trend, until after the complaint filed herein had been received. Following routine delays in completion of the residence, it was finally completed; and, prior to making the final draw, Porter executed an affidavit of no lien (Exhibit 4) which, when presented to Gill and the bank loaning the money, resulted in the final payment being made. A few days thereafter the Gills learned that at least one contractor and one material man had not been paid in full. Claim of liens (Exhibits 5 and 6) were subsequently filed against Gill's property. Porter was initially contacted by Bryington after the latter became aware of the problem and told Porter to take care of the liens. A few days later Porter advised Bryington that the liens had been taken care of. The subcontractor and the material man made several efforts to collect from Porter the sums owed them for work and materials but without success. Porter has been unavailable and his whereabouts unknown for several months to all persons who testified at these proceedings. No evidence was presented that the draws collected to complete the Gill contract were used on another project or diverted to any other purpose. The only evidence offered was that upon completion of the dwelling and collection of the final draw subcontractors and material men were unpaid. Evidence was presented that Trend failed to satisfy a subcontractor on another residence constructed for Norman Scoggins and Scoggins had to pay the subcontractor to keep from having a lien filed against his property. Since no reference was made to this transaction in the Administrative Complaint this evidence is irrelevant to these proceedings and is disregarded.
Findings Of Fact Marvin W. Martin is a licensed funeral director and embalmer in the State of Florida, having been issued license no. FE0000982. He was so licensed at all times material to the Amended Administrative Complaint. Abbey-Tallahassee Memory Gardens is a licensed funeral home in the State of Florida having been issued license No. FH0001579 on December 24, 1987. Martin was the funeral director and embalmer at Abbey-Tallahassee from December 24, 1987, until November 23, 1988. Tina King and Michael Ganey have never been licensed as funeral directors and embalmers in the State of Florida. Each was employed at Abbey- Tallahassee during the time that Martin was funeral director and embalmer at the funeral home. Michael Ganey embalmed bodies three or four times at Abbey-Tallahassee. He did so at the direction of and with the knowledge of Martin. On one of these occasions, Martin was present. During the other instances Martin was not present, but knew of the activity. Because Ganey was not licensed, Martin signed all of the embalming affidavits and attested that he had performed the embalmings that Ganey had in fact performed. Tina King participated in one embalming of an autopsied body by sewing up parts of the body and assisted Martin by spraying bodies, handing him things and turning on the embalming machine. Everything she did was with Martin's knowledge and at his direction. DPR presented substantial amounts of evidence regarding the unsanitary conditions and regarding the burial of the remains of a stillborn infant in a black garbage bag at Abbey-Tallahassee while Martin was the funeral director. This evidence is not considered and no Findings of Fact are made based on it because no allegations were made in the Amended Administrative Complaint which relate to this evidence.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Professional Regulation, Board of Funeral Directors and Embalmers enter a Final Order and therein: Find Marvin W. Martin guilty of violating Section 470.036(1)(a), (g), and (n), Florida Statutes. Impose an administrative fine in the amount of $750. Place Martin on probation for a period of one year, with supervision of a Board approved sponsor. DONE and ENTERED this 7th day of June, 1990, in Tallahassee, Florida. DIANE K. KIESLING 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 7th day of June, 1990. APPENDIX TO THE RECOMMENDED ORDER CASE NO. 90-0706 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Department of Professional Regulation Each of the following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 4(4); 5(4); 6(4&5) ; 7(5); 8(5); 9(6); 11(4); 12(7); and 13(7). Proposed findings of fact 3, 10, and 14-17 are rejected as being irrelevant for the reasons stated in this Recommended Order. COPIES FURNISHED: Cynthia Gelmine Senior Attorney Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Marvin W. Martin 302-1 Flowerwood Drive Chattahoochee, FL 32324 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Anna Polk Acting Executive Director Board of Funeral Directors and Embalmers Northwood Centre 1940 North Monroe Street Tallahassee, FL 32399-0792
The Issue Respondent's alleged violation of Section 466.24(3)(a), Florida Statutes.
Findings Of Fact Dr. Albert Leo Vollmer is registered as a dentist with the Florida State Board of Dentistry, license no. 1437, and practices dentistry at Satellite Beach, Florida (Testimony of Mullins). On July 19, 1973, Allen M. Dingman made application to the Veterans Administration for medical benefits consisting of dental treatment (Petitioner's Exhibit 3). Authorization was given by the Veterans Administration for the requested treatment and Mr. Dingman sought the services of the Respondent. Respondent submitted a treatment plan to the Veterans Administration which was approved. Respondent thereafter provided dental services to Mr. Dingman and, in October, 1973, billed the Veterans Administration for the completed treatment. On October 18, 1973, payment in the amount of $503.00 was approved and paid to the Respondent by the Veterans Administration. This included payment for providing a 3/4 crown on tooth 20 in the amount of $115.00, a full gold crown on tooth 19 for $110.00, and a gold pontic on tooth number 18 for $90.00 (Petitioner's Exhibit 4). In April, 1974, Mr. Dingman visited Dr. Robert B. Downey, D.D.S., concerning a bridge which Respondent had provided him to replace the second molar (tooth number 18), which bridge Dingman had subsequently lost. He asked Dr. Downey what the cost would be to remedy his problem and informed him that the Veterans Administration had paid for the other work. Dr. Downey thereupon contacted the Veterans Administration concerning the prior treatment (Testimony of Dingman, Downey). Approximately a year later, Mr. Dingman was examined by Dr. Fred C. Nichols, D.D.S., of the Veterans Administration, who found that Dingman did not have gold crowns on teeth number 19 and 20, nor a gold pontic to replace tooth number 18. Mr. Dingman showed Dr. Nichols a cast metal frame work which had once been intended as a unilateral mandibular partial denture to replace tooth number 18 (Testimony of Nichols; Petitioner's Exhibit No. 5). The Veterans Administration, by letter of May 19, 1975, advised the Respondent that he would be billed for $315.00 representing the work which had not been performed. Respondent advised the VA that Mr. Dingman had objected to crown preparations and that he had therefore prepared a cantilever bridge which had been too bulky and thereafter another bridge was made at his expense which was apparently acceptable. The Veterans Administration reasserted its claim for $315.00 and Respondent, by letter of July 14, 1975, sought a credit for the work which he had performed, and by a further letter of August 12, 1975 advised that, although all of his records concerning Mr. Dingman could not be found, he estimated the cost of his actual work to be $207.90, and sought credit therefor (Petitioner's Composite Exhibit 6). Respondent testified that although his original plan was to provide fixed bridge work for Mr. Dingman, upon reflection and after noting that the patient was a hypersensitive person who objected to having the necessary preparatory work that would be required for crowns, he decided to attempt to preserve the natural teeth if possible and not to "abort" them. He further testified that although he had requested his office assistant to prepare an amended VA form for the patient to reflect his decision to do a different type of work, he did not follow-up to see if it was sent in to the Veterans Administration. He further maintained that his office assistant had done poor work, that he did not pay much attention to the paper work in the office and, although he usually reviewed applications for treatment such as Exhibit 4 by "implicit faith", he would usually "skip-read" these forms and sign them without completely checking the details thereon. He stated that his accounts were in a mess during this period and that this was the reason the dental laboratory records concerning Mr. Dingman were unavailable and why he had since hired accountants to do his bookkeeping work. His present assistant supported the fact that when she was first employed about a year and a half ago, Respondent's records were sloppy and that it was her custom to prepare various forms for the Respondent's signature. Mr. Dingman denied that he had ever told the Respondent that he was afraid to have his teeth cut into, or that he was hypersensitive in nature (Testimony of Vollmer, Mander, Person, Dingman) Dr. Daniel Beirne, a physician of Indian Harbor Beach, testified that he had common patients with the Respondent, and that the Respondent had an excellent reputation for truth and veracity in the community. Dr. Downey testified to the Respondent's bad reputation as a dentist, as did Dr. Carroll D. House, a member of the Brevard Dental Society Grievance Committee (Testimony of Burre, Downey, House). Respondent's license to practice dentistry was suspended in 1958 for a period of three months for an advertising violation with the proviso that the suspension was suspended for a period of one year upon certain conditions. His license was again suspended for a period of six months in 1960 for advertising violations (Petitioner's Exhibits 7 & 8)
Findings Of Fact The Respondent is a licensed funeral director and embalmer holding license numbers 1231 and 1250 respectively. Clarence Quinn, a policeman employed by the Delray Beach Police Force testified that he has known the Respondent for approximately 35 years and at one time lived with the Respondent for an extended period of time. He testified that during the funeral of his mother on or about May 20, 1976, he encountered numerous problems in attempting to make the necessary funeral arrangements. He testified that the Respondent stayed in a drunken state for a two day period beginning May 21 and that due to his inability to make satisfactory arrangements with the Respondent, he had to remove his mother's body to another funeral home to make the necessary embalming and funeral arrangements. Messr. Quinn encountered similar problems with the Respondent during the funeral of his nephew during 1972. Lillian Rohming, Respondent's sister, also corroborated the testimony of Quinn and testified that he is suffering from an alcoholic problem which is, in her opinion, destroying him as a person and impairing his ability to function as a funeral director and embalmer. Messr. Hamon Thompson, presently employed by Meking Industries, was formerly employed by Respondent for approximately 8 or 9 years. During this period of time, he assisted the Respondent in making funeral arrangements and performed general staff duties 3 to 4 hours daily during afternoon and evening hours. He testified that it was not uncommon for the Respondent to remain in an intoxicated state frequently for periods lasting 3 to 4 days. To the best of his ability, he discouraged the Respondent and others from bringing alcohol on the premises. This was done, based on his observation of the Respondent's performance and/or lack thereof when he imbibed alcohol. He testified that without question, the Respondent is one of the more excellent embalmers and funeral directors in the area while sober but that within the last few years, he consumes alcohol excessively which has been detrimental to his performance as an embalmer and funeral director. He, like other witnesses who testified, including Lauren Braxton, Respondent's sister, Joseph Harrington, an acquaintance of Respondent's for approximately 20 years and Joe Poiter Jerkins, another of Respondent's sisters, all testified as to the severity of Respondent's alcoholic problems. The evidence is that while drinking alcohol, the Respondent is generally unresponsive to the requests of families during funerals; he occasionally lies down in empty caskets; he blows the siren while mourners including family members are viewing bodies and he occasionally interrupts funerals when, in the Respondent's opinion, the funeral ceremony lasts too long. James E. Shelton, an assistant of Respondent for numerous years, testified that based on his relationship with the Respondent, he (Respondent) has conducted himself in a mannerable fashion and that alcoholism is in no way a problem which affects the Respondent's ability to function as an embalmer or funeral director. He testified that although it is true that the Respondents business has fallen off recently, he attributes this decline due to conflicts respecting the ownership of the business. Based on the foregoing findings, I am constrained to conclude that the evidence compiled herein necessarily compels a conclusion that the Respondent is an habitual drunkard as alleged in the administrative complaint filed herein and I shall so recommend. Consideration was given to the contrary testimony of witness Shelton and Respondent's wife, Ester B. Poitier. However, on balance, the weight of evidence supports a finding that the Respondent is suffering from an alcoholic problem which has hampered his ability to function as a licensed embalmer and funeral director. I shall so recommend.
Recommendation Based on the foregoing findings of fact and conclusions of law, I hereby recommend that the Respondent's license to practice as a licensed embalmer and funeral director be revoked. ENTERED this 17th day of March, 1978, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael J. Dewberry, Esquire Rogers, Towers, Bailey, Jones & Gay Florida Title Building Jacksonville, Florida 32202 Hartman Delano Poitier 379 South Dixie Highway Deerfield Beach, Florida 33441 Ronald T. Giddens, Secretary-Treasurer State Board of Funeral Directors and Embalmers 6501 Arlington Expressway, Suite 208 Jacksonville, Florida 32211
The Issue The issues in this case are whether Respondent committed the allegations contained in the Amended Administrative Complaint and, if so, the penalty that should be imposed.
Findings Of Fact The Parties Petitioner Department of Health has regulatory jurisdiction over licensed dentists such as Respondent. In particular, Petitioner is authorized to file and prosecute an administrative complaint, as it has done in this instance, when a panel of the Board of Dentistry has found probable cause exists to suspect that the licensee has committed one or more disciplinable offenses. Respondent Pasquale Almerico, Jr., a graduate of the University of Pennsylvania School of Dental Medicine, has been licensed to practice dentistry in the State of Florida since 1984. Respondent's address of record is 704 North Alexander Street, Plant City, Florida. The Events On February 16, 2010, patient P.D., a 60-year-old female, presented to Respondent's dental office to discuss the replacement of a partial, removable denture that was causing discomfort. The partial denture, which another dentist installed some 15 years earlier to fill the gaps created by lost teeth in the lower-left portion of P.D.'s mouth——specifically, teeth numbers 18 and 19——was secured by a metal “C-clasp” attached to tooth number 20. Noticing immediately that the partial denture was ill fitting, Respondent recommended its replacement with a three- unit cantilever bridge at teeth numbers 19, 20, and 21. As explained during the final hearing, a cantilever is a type of fixed bridge that attaches to adjacent teeth on one end only. Thus, in this instance, abutment crowns on teeth numbers 20 and 21 would connect to a pontic (an artificial tooth) extending into the gap formerly occupied by tooth number 19. P.D. consented to the suggested treatment during the February 16 office visit, at which point Respondent removed the existing crown on tooth number 20, took a radiograph of the relevant area, and performed a thorough clinical examination of teeth numbers 20 and 21. Although Respondent observed some abrasion2/ on the distal surface of tooth number 20 where the C- clasp of the partial denture had been attached, the teeth otherwise appeared healthy——i.e., neither Respondent's direct visualization of the teeth nor his review of the radiograph suggested the presence of decay. At the conclusion of the February 16 visit, Respondent prepared teeth numbers 20 and 21 (a process that involves the use of a drill to remove enough enamel from the teeth so that the bridge will fit properly), took a final impression, and provided P.D. with a temporary bridge. P.D. returned to Respondent's office on March 3, 2010, at which time Respondent removed the temporary bridge and performed a “try-in” with the metal framework of the new bridge. During this process, Respondent directly visualized tooth number 20 and, as was the case during the previous visits, observed no signs of decay.3/ However, Respondent noticed that the metal framework would not seat correctly, which prompted him to take a new impression. Thereafter, on March 10, 2010, Respondent removed P.D.'s temporary bridge and conducted a try-in with the new metal framework——affording him a third opportunity to visualize tooth number 20. Once again, Respondent observed no indications of decay or any other issues. Of the opinion that the second impression had yielded a satisfactory framework, Respondent scheduled P.D. to return at a later date for the seating of her new bridge. Upon P.D.'s return on March 24, 2010, Respondent removed the temporary bridge and directly visualized tooth number 20 for a fourth time; no decay was observed. Respondent then proceeded to seat the cantilever bridge, which fit well and caused the patient no discomfort. At that point, it was anticipated that P.D. would follow up with Respondent in six months for routine cleaning and maintenance. As it happens, though, P.D. returned to Respondent's office a mere five days later, on March 29, 2010. During the visit, P.D. reported that her new bridge was “hurting” and that she was feeling “pressure constantly.” Notably, however, P.D. denied that the pain was of such intensity that it kept her awake at nighttime, which militated against a conclusion that the patient was suffering from an abscess.4/ In response to P.D.'s complaints, Respondent adjusted and flossed the bridge. That an adjustment was made so soon after the bridge's seating, although less than optimal, was by no means unusual; indeed, Petitioner's expert witness concedes that neither the timing of the March 29 visit nor P.D.'s report of pressure necessitated a clinical examination or the taking of an x-ray on that date.5/ Nine days later, on April 7, 2014, P.D. appeared at Respondent's office once again, this time with the complaint that she was biting her cheek. During the clinical examination that ensued, Respondent surmised that the cheek biting, if any, had been caused by a different, aging bridge located in the upper left of P.D.'s mouth (at teeth numbers 11 through 14).6/ Respondent did, however, notice that the new bridge was hitting high, which prompted him to make a minimal adjustment using a rubber wheel. Although Petitioner contends that Respondent should have taken an x-ray during the April 7 visit to rule out an abscess, the evidence demonstrates that P.D. exhibited none of the clinical symptoms sometimes attendant to such a condition. Save for her report of “cheek biting,” P.D. presented with no complaint of severe——or, for that matter, any——pain,7/ nor did she exhibit any discomfort during the adjustment. Moreover, P.D. did not react adversely when Respondent used the end of his examination mirror to perform percussion on the bridge. Finally, Respondent detected no inflammation below the gum line. Subsequently, on April 13, 2010, P.D. returned to Respondent's office and reported that the new bridge was “catching her lip.” P.D. complained of no other pain relating to the new bridge, and Respondent's clinical examination yielded no indications (e.g., thermal sensitivity or sensitivity to percussion) that the patient was suffering from an abscess.8/ Owing to the dearth of symptoms suggestive of endodontic involvement, Respondent determined that an x-ray was unnecessary. However, Respondent made a minimal adjustment to the new bridge and sent P.D. on her way, with the expectation that the patient would return in six months for a follow-up visit. Although P.D. would return a mere six days later, on April 19, 2010, her complaints at that time related only to the aging bridgework at teeth numbers 11 through 14 (seated years earlier by another dentist), which Respondent discovered was “hitting hard.” Significantly, P.D. raised no issues concerning her new bridge at teeth numbers 19 through 21, and Respondent's examination revealed, yet again, no signs of endodontic involvement.9/ As such, Respondent did nothing more than make a slight adjustment to the bridge at teeth numbers 11 through 14.10/ Soon thereafter, P.D. scheduled another appointment and returned to Respondent's office on April 27. On this occasion, as with the previous visit, P.D. voiced no complaints concerning her new bridge, and Respondent observed no signs of inflammation, cheek biting, or any problems. This time, however, P.D. accused Respondent of “breaking” the bridgework at teeth numbers 11 through 14 and suggested that he provide a replacement free of charge. Respondent was understandably dismayed by P.D.'s demand, for he had never caused any damage to the 11 through 14 bridge; moreover, the bridge in question, although in poor condition, was by no means “broken.” At that point, Respondent terminated his relationship with P.D. Expert Testimony As noted previously, Petitioner advances two unrelated theories in support of its charge that Respondent violated the minimum standard of care. First, Petitioner contends that, prior to the seating of the new bridge on March 24, 2010, Respondent failed to treat decay supposedly present on the distal surface (i.e., the part of the tooth that faces the back of the mouth) of tooth number 20. In light of Respondent's concession that the standard of care requires the removal of existing decay prior to the seating of a bridge, Petitioner's first theory boils down to a factual dispute over whether decay was present on tooth number 20 on March 24, 2010. In an attempt to establish the presence of decay, Petitioner adduced testimony from Dr. Solomon Brotman, an eminently qualified dentist with more than 30 years of practical experience. Although Dr. Brotman concedes that he never clinically examined P.D., he nevertheless maintains that the presence of “substantial” decay on tooth number 20 is demonstrated by x-rays in Respondent's possession when the bridge was seated.11/ Dr. Brotman further opines that the x-rays of tooth number 20 are not reasonably susceptible to any other interpretation (e.g., abrasion or erosion), and that Respondent may have missed the decay because it is “sometimes” tooth colored. Finally, Dr. Brotman asseverates that, in cases involving interproximal decay, it is appropriate to make a diagnosis based solely on an x-ray. Respondent counters with testimony from Dr. Robert Fish, an expert with an equally impressive background, who credibly asserts that the x-rays in question are not suggestive of decay but, rather, abrasion12/ that likely resulted from the ill-fitting “C-clasp” of the removable partial denture——an opinion that jibes with Respondent's persuasive testimony that he observed abrasion on the distal surface of tooth number 20. Dr. Fish further contends that, had decay been present, it is highly unlikely that Respondent would have missed it given the number of times he directly visualized tooth number 20 prior to the seating.13/ The short of it is that decay quite possibly existed on the distal surface of tooth number 20 at the time Respondent seated the bridge. However, Respondent's persuasive account of his clinical observations of the tooth, buttressed by the credible testimony of Dr. Fish, leaves the undersigned with substantial doubt on this point. As such, Petitioner has failed to sustain its burden of proof. The undersigned now turns to Petitioner's alternative theory, namely, that “continuing, localized dental pain” required Respondent to rule out the possibility of an abscess at the root of tooth number 20. In relevant part, the Amended Complaint alleges: Continuing, localized dental pain is a symptom of endodontic involvement. Minimum standards of diagnosis and treatment in the practice of dentistry require that when a patient complains of continued dental pain, a dentist take radiographic images of the symptomatic area to determine whether there is endodontic involvement. . . . Patient appointed with Respondent for relief of pain five times [after the bridge was seated] . . . . Respondent Dr. Almerico did not take radiographs of that area or otherwise rule out endodontic involvement during those visits. By failing to take radiographic images to determine possible endodontic involvement at bridge #19-21, Respondent failed to meet minimum standards of dental diagnosis and treatment when measured against generally prevailing peer performance. (emphasis added). Fairly read, the Amended Complaint alleges the standard of care as follows: when a patient reports continuing, localized dental pain, a practitioner must take an x-ray of the symptomatic area or otherwise rule out endodontic involvement. As Respondent correctly argues, however, the testimony of Petitioner's expert departs substantially from the theory pleaded in the charging document. First, contrary to paragraph 27 of the Amended Complaint, which alleges a failure to take x- rays “or otherwise rule out” an abscess, Dr. Brotman's formulation of the standard of care absolutely requires the taking of an x-ray to eliminate the possibility of endodontic involvement. To muddy the waters further, Dr. Brotman's articulation of the prevailing standard at times focused not on P.D.'s supposed reports of continued pain but, rather, the fact that Respondent made more than one adjustment to the new bridge subsequent to its seating: A Sure. I think we fell below the minimum standards on 4/7, 4/13 and 4/19 of 2010, because each of those visits, because the patient came back with the bite having shifted, which for that reason Dr. Almerico continued to adjust the bite on each visit. * * * BY MR. PRICE: Q Doctor, you just gave an opinion that is the standard of care that a patient with more than one adjustment, they automatically get an X-ray. You just gave that as a standard-of-care opinion, didn't you? A Yes, sir. (emphasis added).14/ In light of the significant degree to which Dr. Brotman's testimony deviates from the theory charged in the Amended Complaint, it is concluded that Petitioner has failed to convincingly articulate the minimum standard of performance against which the undersigned, as fact-finder, can independently evaluate Respondent's conduct. Even assuming that Petitioner had established the standard of care (as pleaded), there is a dearth of credible evidence that P.D. presented with continuing, localized pain relating to the new bridge. As detailed previously, P.D.'s report on April 7 that she was “biting her cheek” involved the older bridge at teeth numbers 11 through 14; on her next visit, she complained only that her new bridge was “catching her lip”; on April 19, P.D. merely informed Respondent that the older bridge was “hitting hard”; and, on her final visit, P.D. complained of nothing at all (save for her dubious request for a free replacement of the older bridge).15/ Such hardly constitutes a pattern of ongoing, localized pain. In any event, the persuasive evidence demonstrates that Respondent “otherwise ruled out” endodontic involvement through his clinical observations. Indeed, as Dr. Fish persuasively explained during his testimony, P.D. presented with none of the symptoms16/ sometimes associated with the presence of an abscess——e.g., sensitivity to temperature, exquisite pain, sensitivity to percussion, a fistula, or inflammation——during the office visits of April 7, 13, 19, and 27, 2010, thereby obviating the need for an x-ray. Ultimate Factual Determinations It is determined, as a matter of ultimate fact, that Respondent is not guilty of violating section 466.028(1)(x).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Dentistry dismissing Count I of the Amended Administrative Complaint. DONE AND ENTERED this 9th day of July, 2014, in Tallahassee, Leon County, Florida. S EDWARD T. BAUER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of July, 2014.
Findings Of Fact Dr. Clarence Embry Abell is a licensed dentist, License No. 2471 (Renewal certificate issued September 20, 1974), practicing in the State of Florida pursuant to Chapter 466 of the Florida Statutes, at 2306 Orange Avenue, Fort Pierce, Florida. (Stipulation, Tr 5). The Board prepared an accusation against Dr. Abell which is dated February 7, 1975. Dr. Abell requested a hearing before the Division of Administrative Hearings through a letter dated February 18, 1975. The final hearing was scheduled in accordance with a notice dated May 7, 1975. (Hearing Officer's Exhibit 1 and 2, Notice of Hearing). On December 5, 1973, Rhonda Hall, then 10 years of age, had a toothache. Her mother, Brenda Jean Hall, called several dentist's offices in Fort Pierce, and finally made arrangements to have Rhonda seem by Dr. Abell. Rhonda had no regular dentist in Fort Pierce. Rhonda and her mother arrived at Dr. Abell's office at approximately 9:30 a.m. Dr. Abell's receptionist, Mildred I. Jenkins, directed Rhonda from the reception room into the operatory. Mrs. Hall started to go with Rhonda to the operatory, but was instructed by Mrs. Jenkins to wait in the reception room. Mrs. Jenkins seated Rhonda in the dentist's chair. Dr. Abell asked Rhonda which tooth was giving her trouble. Rhonda showed him. Dr. Abell concluded that she had two abscessed teeth next to each other in her right lower jaw. He injected local anesthetic, and commenced to take an x-ray. The door of the operatory was opened, but Mrs. Jenkins had left the room. Dr. Abell asked Rhonda to bold the x-ray film between her teeth with her forefinger. He took the x-ray. Rhonda Hall testified that after he took the x-ray Dr. Abell jerked the film out of her mouth and hit her. She testified that she saw Dr. Abell's arm and hand pull back and saw his fist coming toward her. Dr. Abell testified that after he took the x-ray Rhonda began to holler. He did not recall her exact words. He testified that he hung the x-ray switch on the unit and walked around behind the dentist's chair to take the film out of Rhonda's mouth. He testified that he turned the x-ray unit downward parallel to the chair and reached to take the film out of her mouth. She spun away and fell back in the chair. He stated that there was a momentary silence, that he took the film from her mouth, and that she then started hollering again. He lowered the chair and was going to ask her to leave when she ran out of the operatory. Dr. Abell testified that he does not restrain children, who are within the age of reason, in order to perform dental work on them. Dr. Abell was firm in his testimony that he did not strike Rhonda Hall. He felt that Rhonda may have struck her head against the x-ray machine when she hollered. He did not see her head strike the machine, but he felt that she was in a position to do that. Other than Dr. Abell and Rhonda Hall, there were no witnesses in the operatory. Having given due regard to the demeanor of the witnesses who testified at the final hearing, and to the competence and credibility of the witnesses, I find that Dr. Abell did not strike Rhonda Hall as alleged. It is apparent that Rhonda Hall sustained an unfortunate, but relatively minor injury to her eye while she was Dr. Abell's patient. This injury, however, was not the result of any action taken by Dr. Abell. It is possible that Rhonda is mistaken about what happened, or that she has placed herself in a position of feeling that she must testify falsely. Although Rhonda and her mother both testified that she was not nervous about going to the dentist, it is evident that at least her mother thought she was. Mrs. Barbara Lanzier was in the reception room when Rhonda was called by Mrs. Jenkins. Mrs. Lanzier testified that after Rhonda left the waiting area, Mrs. Hall stated, "They are going to have trouble with her, they always do. I always go in the room with her." After Rhonda was injured, she ran out of the dentist's office, through the reception room, and outside to her mother's automobile. Her mother brought her back into the office and confronted Dr. Abell. Dr. Abell explained what had happened, and told Mrs. Hall that he did not hit the child. Mrs. Hall then took Rhonda to Dr. Sims, who referred them to an eye specialist. Later that afternoon Mrs. Hall returned to Dr. Abell's office with Rhonda. She again discussed the matter with Dr. Abell. While these discussions were taking place Rhonda moved about the dentist's office, opening drawers and looking at things in the office. At one point she opened a drawer within one foot of where Dr. Abell was sitting. Third conduct, which was witnessed by Dr. Abell and by Mrs. Jenkins, indicates that Rhonda was not particularly afraid of Dr. Abell, despite the fact that he had supposedly hit her with his closed fist only hours earlier. Mrs. Hall denied that Rhonda was opening drawers, or that Rhonda was even with her when she met with Dr. Abell that afternoon. In view of the testimony of Dr. Abell, and his assistant, however, this testimony of Mrs. Hall is not believable. Mrs. Hall testified that she spoke with Mrs. Mattie Turner at the Community Action Organization about Dr. Abell. Dr. Abell does considerable work for children in the Headstart Program managed by the Community Action Organization. Mrs. Hall testified that Mrs. Turner told her over the telephone that she could give her a list of people who could make statements against Dr. Abell. In a later telephone conversation, Mrs. Turner told Mrs. Hall, according to Mrs. Hall, that she would not be able to prepare such a list because of her government position. Mrs. Turner testified at the final hearing that she had only one conversation with Mrs. Hall on the telephone and that she never told Mrs. Hall that she could give her a list of people who had complaints about Dr. Abell. She further testified that she has taken many children to see Dr. Abell, and that she has never had a complaint about his services. Dr. Abell's account of what happened in the operatory with Rhonda Hall, is not corroborated by any direct testimony. After the incident, however, it is apparent that Dr. Abell preceded to treat other patients, and that he did so in a calm, businesslike manner. Such conduct is not compatible with a person who has become so enraged as to strike a young child in the eye with his closed fist, without provacation. Dr. Abell's testimony respecting his normal procedure with uncooperative children and Mrs. Jenkins' testimony with respect to her fifteen years of experience working with Dr. Abell support Dr. Abell's account of the events. Four persons, who as young children had had dental work performed by Dr. Abell, testified as to their experiences. Sarah Nicholson, now twenty-three years old, was a patient in 1961 and 1962. Miss Nicholson testified that Dr. Abell was extremely rough with her. She testified that she was struck, but she does not remember where. On cross-examination, testimony that Miss Nicholson gave in a previous deposition were read to her. She had testified that she was "Slapped possibly - well, alright, we'll go with the technicalities, he was rough like, 'Sit still in the chair.'" She did not remember whether she was hit or slapped, but only that she was struck. Dr. Abell's records do not reflect anything extraordinary in his treatment of Sarah Nicholson. In view of the fact that the supposed incident occurred some thirteen years ago, and the fact that Sarah Nicholson's testimony about the incident is vague at best, the testimony cannot be regarded as competent or relevant. Regina Adams, is nine years old. She was five years old when she visited Dr. Abell in conjunction with the Headstart Program. She did not remember Dr. Abell's name. She testified that the dentist slapped her in the jaw and told her if she did not cry she would get some gum. She testified that the dentist missed with his drill, and that she had to go the doctor that night. The remoteness and vagueness of Regina Adam's testimony renders it incompetent and irrelevant. Regina's sister, Monique, who is now ten years old visited Dr. Abell when she was five or six years old. She did not recognize Dr. Abell at the hearing. She testified that she recalled being struck by Dr. Abell in the chest. She further testified, however, that she was going to state that she was struck in the face, but that at lunch her mother told her she was struck in the chest. In view of the remoteness of this supposed incident, the vagueness of the testimony, and the fact that the memory was gratuitously refreshed by her mother during the course of the hearing, the testimony cannot be regarded as competent or relevant. Andy McClendon, a nine year old, who saw Dr. Abell four or five years ago was called as a witness. He recalled nothing about the visit.
Findings Of Fact The Board had charged the Petitioner, Dr. Jules Klein, with violations of Sections 466.27(2) and 466.24(3)(g)(k) and (m), Florida Statutes. Dr. Alvin H. Savage was called by the Board to testify that he had seen Dr. Klein in the early spring of 1974. At that time Dr. Savage mentioned to Dr. Klein a sign on the side of the building in which Dr. Klein maintained his professional office. Dr. Savage identified Exhibits 1, 2, and 3 as photographs of said building and the signs at the building as they existed at the time. Dr. Savage testified that the sign bearing Dr. Klein's name was not objectionable and that he had received no complaints regarding said sign. Dr. Savage testified that he had received complaints about the sign as it existed on Dr. Klein's building at that time. The wording of that sign was "Longwood Dental Arts Center". Dr. Savage, on cross-examination, testified that Dr. Klein had invited him to his office to discuss Dr. Klein's status in the local professional association. During their discussion Dr. Savage testified that he had suggested to Dr. Klein that as Jews the community probably held them to a higher standard than other members of their profession, and that Dr. Klein should attempt to avoid even the appearance of anything questionable. Although it was suggested that Dr. Savage's comment was evidence of antisemitic discrimination, in the context of discussion as revealed by both Dr. Savage's and Dr. Klein's testimony, it would appear general advice from an older professional man who had practiced in the community for some time to a younger colleague. During this visit Dr. Savage raised the question of the sign on Dr. Klein's building and was advised by Dr. Klein that he would see the landlord of the building about altering the sign. Thereafter, Dr. Savage testified that the sign was changed, and identified Exhibit 5 and 6 as photographs of the building in which Dr. Klein's professional office was located and the amended sign which read, "Longwood Dental Bldg." Dr. Savage testified that he had received only two complaints regarding the amended sign during the preceding year and that one of the two complaints had been received shortly before the date of final hearing. On cross-examination, Dr. Savage opined that Dr. Klein's sign violated the statute by calling attention to the practice of dentistry by an individual, indicating further that if more than one dentist were practicing at Dr. Klein's office that it would not, in his opinion, be in violation of the statute. Dr. Savage based his opinion upon the Code of Ethics of the Florida Dental Association, Bearing Officer's Exhibit 10. Mr. John F. Plumb testified that he had taken the photographs introduced as Exhibits 5 and 6 on the morning of the hearing. He further testified that he visited Dr. Klein's office on March 12, 1975, April 29, 1975, and July 28, 1975. On both the March and April visits he had spoken with Dr. Klein and had found him very cooperative, although quite concerned about why his sign was an apparent violation while some of the signs in the locality, one of which was immediately across the street from his office, were not in violation. Mr. Plumb testified that he had discussed with Dr. Klein the provisions of Section 466.27(2), Florida Statutes, and the sign's apparent violation of its provisions. Mr. Plumb testified that during the March 12, 1975 visit with Dr. Klein that Dr. Klein indicated that he would modify the sign; however, during the April 29, 1975 visit, Dr. Klein indicated that he would not alter the sign on the advice of his attorney. Dr. Klein then testified in his own behalf. Dr. Klein testified that the sign, "Longwood Dental Arts Center" had been chosen originally because patients had indicated that they could not find his office. Dr. Klein testified that he had become truly concerned about the ability of persons to find his offices when dental supply salesmen reported difficulty in finding his offices. At that time Dr. Klein was practicing with his brother-in-law, Dr. Guy. Dr. Klein testified that having determined the need for a sign on the building, that he looked at the building signs on other buildings in the vicinity. Together with Dr. Guy, he determined that the building be named "Longwood Dental Arts Center" because he and Dr. Guy eventually intended to have am orthodontist in association with then. On cross- examination Dr. Klein testified that "medical arts" was not used because they had had no intention of having doctors of medicine practice there. Dr. Klein testified that he then contacted a sign maker who had dome other similar signs, who suggested the layout and size of the sign used on the building. Dr. Klein testified that after Dr. Savage's visit that he had received a visit from Dr. Franklin. Dr. Klein testified that he had the impression that the removal of the words "Arts Center" would eliminate the objection to the sign, and the sign was so modified. After the sign was changed, Dr. Klein testified that he was again contacted but that he had been unable to determine what was acceptable wording for the sign. He testified that in am effort to obtain guidance as to what was "professionally" acceptable he had contacted the American Dental Association and received a copy of their ethic advisory opinions. See Exhibit 16. This exhibit provides: "1. A building may be identified as the '...Dental Building,' except that the full name of the building cannot include the name of a participating dentist. The mane selected should not imply the practice of superior or more artful dentistry, imply any connection with any institutional or governmental unit or organization, or imply or specify the practice of any special area of dentistry. The full name selected shall be limited to the function of helping the patient locate the building. 2. A component society may determine community custom to prohibit dentists from using floodlights to draw attention to their nameplates on the outside of their private practice facilities. Component societies should be aware, futhermore, that the state dental practice acts ordinarily establish regulations on the use of office door lettering and signs." The Florida Dental Association rules would also allow the use of "Dental Building", but only where two or more dentists practice within the professional building. The basis for this distinction was explained by Dr. Savage, who stated that the provisions of Subsection k of Section 466.24(3) relating to".. calling the attention of the public to any person engaged in the practice of dentistry..." were not violated if two or more persons practiced in a building identified as a "Dental Building."
The Issue Whether or not Respondent's denial of Petitioner's application for certification as a licensed plumber was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record 1/ compiled herein, the following relevant facts are found. During mid-April of 1981, Petitioner, David L. Mooney, filed an application to be certified to sit for the next Certified Contractors' Examination with the Respondent, Construction Industry Licensing Board. Since approximately 1969, Petitioner had been a resident of Newton, New Jersey, where he was licensed as a Master Plumber. While residing in New Jersey, Petitioner was in a private plumbing business which was fairly successful, however, due to the weather conditions in the New Jersey area, the plumbing business is primarily a seasonal business. As a result of the seasonal nature of the plumbing business in New Jersey, Petitioner's business also had cash-flow problems. Petitioner also experienced personal financial problems in connection with his adoption of a son while in New Jersey. Petitioner was forced to expend a substantial amount of money in legal fees and had to leave the State of New Jersey in order to gain the release of the adopted son. Briefly, and more specifically, evidence reveals that the adopted son had several brushes with the law, including an involvement in an armed robbery and arson of a country club. (Testimony of Petitioner.) Petitioner's application was examined by members of the Respondent, Construction Industry Licensing Board (Board), and the Board decided that it could not certify Petitioner to sit for licensure as a certified contractor due to a lack of financial responsibility. An examination of Petitioner's application for licensure to sit for the Certified Contractors' examination reveals that at the time in which he filed his application, his cash on hand amounted to $500.00 with virtually no assets and he had incurred liabilities in excess of $118,000.00. Petitioner's application reveals that there were outstanding judgments against him, tax liens, and several past due and delinquent accounts and/or bills.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent deny Petitioner's application for certification as a plumbing contractor in the State of Florida. RECOMMENDED this 25th day of February, 1982, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1982
