Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made. Chandler sought exemption from permitting requirement from the Department to perform certain dredging in two artificial dead-end canals located in Placida Point Subdivision (formerly Porto-Fino Subdivision), Charlotte County, Florida. The Department has denied the exemption on the basis that "the proposed work indicates that it is not for maintenance purposes, and therefore, it does not fit the maintenance exemption". The dredging proposed by Chandler would remove the existing earthen plugs between Coral Creek (an adjacent creek) and the two canals. Coral Creek is a natural body of water and is waters of the State. The two canals were excavated (constructed) during the latter part of 1969 and early 1970 (before April 1970). Although no original design specifications were offered into evidence, there is sufficient competent evidence to show that at the time the canals were constructed earthen plugs were left between the canals and Coral Creek which restricted the water exchange between the canals and Coral Creek. The exchange of water apparently occurred at mean high water, and navigation, if any, was restricted to small boats. Porto-Fino Realty Co., Inc., (Porto-Fino) developed the Porto-Fino Subdivision in 1971, and in early 1971 applied to the Board of Trustees of the Internal Improvement Trust Fund (Board) for a dredge permit to connect the certain existing canals, which included the canals in question, to Coral Creek. As part of the application review, a site inspection was made, and it was found that the earthen plugs left between Coral Creek and the canals when they were constructed allowed water to ebb and flow during periods of high tide. As a result of this site inspection, it was recommended that before any further consideration be given the permit application, that the applicant be advised that the canals had to be adequately diked. The record is not clear on whether this permit was granted, but apparently it was not because this subject was raised again in 1974 with Lou Fusz Motor Company, the present owner of Porto-Fino Subdivision, by the Board and the Department of Army, Corps of Engineers (Corps). Apparently, it was determined by the Board, and possibly by the Corps, that the plugs had washed out and needed to be repaired. In 1975, at the request of the Board, the earthen plugs were repaired and culverts placed in the plugs to allow flushing of the canals. The earthen plugs are presently in existence in the mouth of the canals, and are colonized by mangroves, Brazilian pepper and Australian pine. The mangroves are mature trees 10-15 feet in height, and approximately 10-15 years old. The plugs do not show any signs of any recent dredging in or around the mouths of the canals. The plugs form a barrier to navigation between the canals and Coral Creek. The canals have not been used for navigational access to Coral Creek since they were repaired in 1975. The canals have not been previously dredged to maintain navigational access for boat traffic to Coral Creek, and are not presently used for navigational access to Coral Creek. There is sufficient competent substantial evidence to establish facts to show that the earthen plugs, as they presently exist, are man-made barriers that separated the two canals from Coral Creek. There is insufficient evidence to show that the repair of the earthen plugs in 1975 by the developer was illegal. The repair of the earthen plugs in 1975 by the developer was necessary because the original plugs had not been properly constructed or had washed out over the period of years. Coral Creek and the canals in question are surface waters of the state as defined in Rule 17-312.030(2), Florida Administrative Code. Canals which are used for navigation have to be periodically dredged to maintain navigational access. There is sufficient competent substantial evidence to establish facts to show that the dredging proposed by Chandler would not be "maintenance dredging" as contemplated by Rule 17-312.050(1)(e), Florida Administrative Code.
The Issue The issues concern the request by Petitioner for a permit(s) to dredge in a man-made canal and to construct two boat houses and six boat slips.
Findings Of Fact Petitioner owns property in Marion County, Florida, from which he has legal access to a man-made canal that intersects the Oklawaha River. This river is an Outstanding Florida Water body. The canal and river are in Marion County, Florida. In November 3, 1989, Respondent received a permit application from Petitioner. This application sought approval to dredge in the man-made canal which is approximately 800 feet long. That canal is owned by the Canal Authority of Florida. The dredging activity would include removal of material at the mouth of the canal as it intersects the Oklawaha River. The applicant intends to expand by dredging the length in the landward extent of the canal from 60 feet to 120 feet and the width from 50 feet to 170 feet. In the landward extent of the dead-end canal, what is described as the boat basin, the applicant seeks approval for the construction of six boat slips and two boat houses. The relative design of the these activities and the placement of the spoil materials removed in the dredging are shown in the application to include responses to the omissions request. That application is found as the Respondent's Composite Exhibits No. 1. At present the applicant has a 30 foot pontoon boat in the dead-end canal. He has a 17 foot bass boat and his neighbor has a 24 foot pontoon boat that use the canal. With the advent of as many as six boats available for the six slips contemplated by this application, the boats would vary in length from 16 feet to 30 feet. In carrying out the dredging activities Petitioner states that he would use anchored turbidity curtains at the intersection of the canal and the Oklawaha River while dredging activities transpired. The exact location of the proposed project is the south shore of the Oklawaha River in Marion County, Florida, in Section 35, Township 14 South, Range 23 East. On June 1, 1990, Respondent noticed its intent to deny the permit. Following that denial Petitioner timely requested a formal hearing to consider his entitlement to the permit(s). The history of the dead-end canal in question is not clear from the record. Its present condition does suggest that it has existed for a considerable number of years. Its appearance does not reflect that routine maintenance has been performed to preserve its original configuration to include maintaining its original depths throughout its course. At the location where the canal intersects the Oklawaha River, the river runs in an easterly direction for a short stretch. Its flow regime at that point is quite swift. This intersection is in a bend of the river. The high energy flow at that juncture has created an undercut at the mouth of the canal and for some distance on either side. The landward extent of the canal or area of the proposed boat basin is an area which was dredged from uplands. The canal extends in an northerly direction to the river through a wetlands swamp. Spoil material from the original dredging had been placed on the east and west side of the canal. There was sufficient deposition on the west side to allow vehicular traffic. That bank of the canal provides physical access to the river. In the Petitioner's experience, at around the time of the application process the water levels in the river and canal were as low as they had been during his three years of observation. At other times during that three year period the water levels had been approximately two feet higher than the low levels described. It is, however, unclear from the record what the normal high and low ranges of water levels in the river would be at this location. Petitioner has observed that the water levels in the canal during the time in question is three feet in most of the canal except at the mouth as it intersects the river where the water level is shallower. As seen in the photographs a great deal of vegetation is present in the water in the canal causing it to be in a marsh like condition. Emergent vegetation exists in certain portions of the canal which indicates a generally permanent shallow water condition. The low water level in the mouth of the canal which has been described is only a few inches deep. The bottom of the canal where it enters the river is more substantial in compaction as compared to the rest of the canal. It is not clear when this compaction occurred, in particular whether it occurred following the original construction of the canal. Navigation is a problem for most boats in the condition of the canal as it was described at the time of hearing. Petitioner describes that he and other fishermen have navigated in the canal when the water levels were high enough to allow that navigation. The canal in its present condition serves as a habitat for wildlife. The wildlife includes blue winged teal, little blue heron, large mouth bass, bream and alligators. In order to mitigate the effects of this project Petitioner has offered to place a recycling water fall in or near the proposed boat basin to allow oxygen to be placed in that basin. This is described in the application documents. Petitioner proposes to landscape the slopes of the basin with boulders and natural vegetation. He proposes to place "no wake" signs along the canal. Notwithstanding the intent to use a turdibity curtain to protect against violations of turdibity standards in the waters in the canal and the adjacent Oklawaha River while dredging, problems of violation of Respondent's turbidity standards are expected to occur. This occurrence is probable given the relatively fast current in the river which precludes the efficient use of turbidity screens or curtains. Dead-end canals such as that envisioned in this project have water quality problems. Enlargement of the dead-end canal does not assist in addressing the problems, even taking into account the intention by Petitioner to recycle water in the proposed boat basin. The water quality standards that are likely to be violated concern dissolved oxygen and BOD (biological oxygen demand). The assurances Petitioner has given about these standards in terms of protections against violations are not reasonable assurances. The addition of six boat slips and the potential for greater use of the canal by boats other than those that presently exist creates an opportunity for other water quality violations. Those possibilities pertain to turbidity problems through the stirring of bottom sediments and a violation of standards for turbidity and nutrients through that process. Oils and greases are associated with the placement of boats in the dead-end canal and a violation of Respondent's water quality standards for oils and greases is possible. During high water events and other flushing events when water from the canal enters the river, the poor quality of that water from the canal will reduce the water quality in the receiving body of water, the Oklawaha River, potentially causing water quality violations in the river. More specifically related to the artificial water fall proposed by Petitioner, such a device is not generally found to be an acceptable solution in addressing any potential water quality problems created by the expansion of the dead-end canal system. In any event, that system of aeration only would address the dissolved oxygen water quality parameter and not other regulatory parameters. The dredging of the canal has adverse affects on the fish and wildlife presently using the waters in the canal through the adverse affect on their habitat. When the water quality is degraded as described it adversely affects public health, safety and welfare for those who use these waters. Petitioner has observed logs jamming in the curve of the river and the accumulation of sand around that area further closing the mouth of the canal. In order to keep the logs free from the canal entrance they have to be moved on a weekly or monthly basis. Petitioner would attempt to save as many trees as possible when dredging in the mouth of the canal. Petitioner intends to sod slopes where dredging occurs and to place berms to keep water from running off into the canal and to prohibit erosion in the area of the boat basin. Petitioner has in mind making it convenient for boats to turn around in the landward end of the dead-end canal and hiding those boats from the sight of persons on the river by keeping them in that area. However, Petitioner acknowledges that when boats negotiate inside the landward extent of the dead- end canal they churn up the bottom sediments and cause problems with water quality. More specifically, Petitioner's right of access to the mouth of the canal is an easement across the property of the Canal Authority of Florida. Petitioner owns the area of the boat basin which is at the far end of the canal. Activities by Petitioner in that portion of the canal about which he does not have ownership rights which violate Respondent's environmental regulations would be adverse to the interest of the Canal Authority of Florida. Petitioner intends to improve the road access along the bank of the canal as it offers access to the river. Two hundred fifty to three hundred feet of the canal length moving away from the river is through a swamp which is marshy with weeded vegetation on its slopes. The rest of the length of the canal is through an uplands. As you move up the slopes in the canal it goes from submerged to transitional to upland species of plants. It is a shallow water system where plants can live inundated or exposed. These are types of plants seen along edges of rivers or lakes where water flows slow. At the mouth of the canal, the compacted substrate has the appearance of what you would find on the edge of a deep creek or river channel. This material is compacted clay or rock with a sand overlay. The area is stabilized. The long term impact of this project is the elimination of vegetation within a marshy system thereby removing habitat for aquatic and semi-aquatic invertebrates and vertebrates and their breeding and feeding areas. In the dead-end canal systems the dissolved oxygen problems are presented by a slow moving regime of water and the suspension of nutrients and materials from the banks of the canal. The bottom materials that are stirred up by boats are transported to the river. Ordinarily canals are too deep to support the form of emergent vegetation found in some portions of the canal. The deeper the canal the more difficult the water problems, and the flushing times take longer. This is especially true with long canals such as the one at issue. This contributes to problems with violation of standards related to DO and BOD. While the canal itself is not an Outstanding Florida Water, the Oklawaha River's ambient water quality is at risk with the dredging activities contemplated by this project.
Recommendation Based upon the consideration of the facts found and conclusions of law reached, it is recommended that a Final Order be entered which denies the permit(s) for dredging and construction of boat slips and docks. RECOMMENDED this 21st day of February, 1991, in Tallahassee, Florida. CHARLES C. ADAMS, 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 21st day of February, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-5734 Having considered the proposed facts of the Respondent they are subordinate to facts found. COPIES FURNISHED: Carol Browner, Secretary Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400 C. W. Pardee, Jr. 2769 Northeast 32nd Place Ocala, FL 32670 Douglas H. MacLaughlin, Esquire State of Florida, Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, FL 32399-2400
The Issue The issues to be determined are whether Respondent violated the applicable standard of care in the practice of dentistry in violation of section 466.028(1), Florida Statutes, as alleged in the Administrative Complaints filed in each of the consolidated cases; and, if so, the appropriate penalty.
Findings Of Fact The Department of Health, Board of Dentistry, is the state agency charged with regulating the practice of dentistry in the state of Florida, pursuant to section 20.43, and chapters 456 and 466, Florida Statutes. Stipulated Facts Respondent is a licensed dentist in the state of Florida, having been issued license number DN14223 on or about December 1, 1995. Respondent’s address of record is 530 East Howard Street, Live Oak, Florida 32064. Respondent was licensed to practice dentistry in the state of Florida during all times relevant to the administrative complaints underlying this case. Patient T.C. was a patient of Respondent. Patient S.S. was a patient of Respondent. Patient G.H. was a patient of Respondent. Patient J.D. was a patient of Respondent. Patient J.A.D. was a patient of Respondent. Other Findings of Fact On July 23, 2004, Respondent entered into a Stipulation in Department Case No. 2002-25421 to resolve an Administrative Complaint which alleged violations of section 466.028(1)(m), (x), and (z). The Stipulation was adopted by a Final Order, dated January 31, 2005, which constitutes a first offense in these cases as to each of the sections cited. On September 21, 2007, the Department issued a Uniform Non-disciplinary Citation for an alleged violation of section 466.028(1)(n), related to the release of patient dental records. The Department offered no evidence of its disposition and, in any event, since these cases do not involve alleged violations of section 466.028(1)(n), the citation is of no consequence in establishing a penalty in these cases under Florida Administrative Code Rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-10804 for alleged violations of section 466.028(1)(m), (x), and (mm). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). On January 19, 2017, the Department issued an Administrative Complaint in Case No. 2015-23828 for alleged violations of section 466.028(1)(m), (x), and (z). The Department offered no evidence of its disposition of the Administrative Complaint and, as a result, the Administrative Complaint is of no consequence in establishing a penalty in these cases under rule 64B5-13.005(1). Case No. 19-2898PL - The T.C. Administrative Complaint Patient T.C. was a patient of Respondent from June 14, 2011, to on or about August 12, 2013. During the period in question, Respondent owned Smile Designs, a dental practice with offices in Jacksonville, Lake City, and Live Oak, Florida. The Department, in the T.C. Administrative Complaint, recognized that “Respondent, along with an associate, [Dr. Morris], are . . . licensed dentists known to work at Respondent’s practice.” The Department’s expert witness, Dr. Brotman, was also aware that Dr. Morris practiced with Respondent. Patient T.C. suffered a stroke in 2009. During the period that she was seen by Respondent, she was in “decent health,” though she was on medication for her post-stroke symptoms, which included a slight problem with aphasia, though she was able to communicate. The stroke and the aphasia are neurological issues, not mental health issues. Patient T.C. was accompanied by her husband, L.C. during her visits to Respondent’s practice. He generally waited in the waiting area during Patient T.C.’s procedures though, as will be discussed herein, he was occasionally brought back to the treatment area. L.C. testified that he had never been advised that Patient T.C. experienced a seizure while under Respondent’s care, and had no recollection of having been told that Patient T.C. ever became unresponsive. Patient T.C. died in 2015. Count I Case No. 19-2898PL, Count I, charges Respondent with failing to immediately refer Patient T.C. to a medical professional or advise Patient T.C. to seek follow-up care for the management of what were believed to be seizures while Patient T.C. was in the dental chair. From Patient T.C.’s initial visit on June 14, 2011, through her visit on September 23, 2011, Patient T.C. was seen at Respondent’s practice on five occasions. Respondent testified that the office was aware of Patient T.C.’s history of seizures because the medical history taken at her first visit listed Diazapam, Levetiracetam, Diovan, and Lyrica as medications being taken by Patient T.C., all of which are seizure medications. Nonetheless, the dental records for the four visits prior to September 23, 2011, provide no indication that Patient T.C. suffered any seizure or period of non- responsiveness during those visits. On September 23, 2011, Patient T.C. presented at Smile Designs for final impressions for crowns on teeth 20, 21, 28, and 29. Respondent testified that she was not the treating dentist on that date. Patient T.C. was given topical anesthetics, and her pulse and blood pressure were checked. The treatment notes then provide, in pertinent part, the following: Patient had seizures on the dental chair - may be due to anxiety. Seizures last 2-3 minutes. No longer. After 30 minutes, patient was calm. Able to proceed with dental procedure . . . . During seizures pt. was responsive; she was able to respond to our commands. The medical records substantiate Respondent’s unrebutted testimony that she was not the treating dentist at the September 23, 2011, appointment. The June 14, July 19, and October 7, 2011, treatment notes made by Respondent all start with “Dr. Gerry,” and are in a notably different style and format from the September 23, 2011, treatment notes. The preponderance of the evidence establishes that Dr. Morris, and not Respondent, was the treating dentist when Patient T.C. experienced seizures on September 23, 2011. Much of Dr. Brotman’s testimony as to Respondent’s violation of a standard of care was based on his interpretation that, since the September 23, 2011, notes did not specifically identify the treating dentist (as did the other treatment notes described above), the notes must be presumed to be those of the business owner. Neither Dr. Brotman nor the Department established a statutory or regulatory basis for such a presumption and, in any event, the evidence adduced at hearing clearly rebutted any such presumption. Dr. Brotman testified that if another dentist had been identified in the records as having performed the treatment on September 23, 2011, that may have changed his opinion. The evidence established that Dr. Morris performed the treatment on September 23, 2011. Thus, Dr. Brotman’s opinion that Respondent violated the applicable standard of care was effectively countered. The T.C. Administrative Complaint charged Respondent with failing to comply with the applicable standard of care on September 23, 2011. The Department failed to establish that Respondent was the treating dentist on September 23, 2011, and, in fact, a preponderance of the evidence demonstrated that she was not. Thus, the Department failed to establish that Respondent violated the standard of care for failing to refer Patient T.C. to an appropriate medical professional for her seizures as alleged in Count I of the T.C. Administrative Complaint. Count II Case No. 19-2898PL, Count II, charges Respondent with delegating the task of intraoral repair of Patient T.C.’s partial denture to a person not qualified by training, experience, or licensure to perform such intraoral repair. July 17, 2012 Repair On July 17, 2012, Patient T.C. presented to Respondent because her lower partial denture was broken and the O-ring was out. The device included a female end within Patient T.C.’s jaw, and a male end with a plastic “gasket” on the denture. Respondent testified that the repair of the partial denture was performed outside of Patient T.C.’s mouth. Then, at the next scheduled visit, the treatment plan was for Respondent to “eval/repair partial denture on lower arch.” Respondent offered unrebutted testimony that “Tia of precision attachments” performed no work in Patient T.C.’s mouth. Dr. Brotman testified that, in his opinion, any repair of a precision attachment must be done by placing the attachment in the patient’s mouth to align with the teeth. However, Dr. Brotman did not know what kind of repair was done on July 17, 2012. He indicated that if a gasket or housing is missing, it can be repaired with an acrylic. Dr. Brotman testified that if acrylic was placed in the denture outside of the patient’s mouth, it would not be a violation of Florida law. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to “Tia” or any other unlicensed person on July 17, 2012, as alleged in Count II of the T.C. Administrative Complaint. June 11, 2013 Repair On June 11, 2013, Patient T.C. presented to Respondent for an evaluation of her lower precision partial denture. Patient T.C. complained that the partial denture did not have the metal housing to connect it with the bridges to its sides. Patient T.C. was a “bruxer,” i.e. she ground her teeth, and had worn out the denture’s metal attachment. Respondent evaluated the situation, and decided to attempt a chairside repair or replacement of the denture’s male attachments. If the chairside repair was unsuccessful, a complete new partial denture would have to be prepared by a dental laboratory. Respondent attempted the chairside repair. Respondent testified that she instructed her dental assistant to add acrylic into the slot where the male attachment was to be placed in the denture. There was no evidence of any kind to suggest that the dental assistant then placed the denture into Patient T.C’s mouth. Because too much acrylic was placed in the denture, it became stuck in Patient T.C.’s mouth. Patient T.C. became understandably upset. Her husband, L.C., was brought into the room, Patient T.C. was administered local anesthesia, and the precision partial denture was removed. Respondent’s testimony regarding the incident was generally consistent with her prior written statement offered in evidence. Dr. Brotman testified that making repairs to a precision denture must be performed by a licensed dentist, except for placing acrylic into the denture outside of the patient’s mouth, which may be done by a non-dentist. The evidence was insufficient to demonstrate that Respondent’s dental assistant did anything more than place acrylic into the denture outside of Patient T.C.’s mouth. The Department failed to prove, by clear and convincing evidence, that Respondent delegated the task of adjusting or performing an intraoral repair of Patient T.C.’s partial denture to her dental assistant on June 11, 2013, as alleged in Count II of the T.C. Administrative Complaint. Case No. 19-2899PL - The S.S. Administrative Complaint Count I Case No. 19-2899PL, Count I, charges Respondent with violating section 466.028(1)(m) by: Failing to keep a written record of Patient S.S.’s medical history; and/or Failing to keep an accurate written record of any consent forms signed by Patient S.S. Count II Case No. 19-2899PL, Count II, charges Respondent with violating section 466.028(1)(x) by: Failing to adequately diagnose decay in tooth 30; Failing to adequately diagnose the condition of the roots of tooth 30; Failing to adequately obturate the canals of tooth 30 during root canal treatment; Failing to adequately obturate the canals of tooth 31 during root canal treatment; Failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and/or Failing to adequately assess and correct the crown on tooth 31 when the fit was compromised. On May 15, 2014, Patient S.S. presented to Respondent for a root canal and crown on tooth 30. Upon examination, Respondent advised Patient S.S. that she also needed a root canal and a crown on tooth 31. Patient S.S. denied that she was required to provide her medical history at the May 15, 2014, office visit, or that she was provided with an informed consent form prior to the root canal on tooth 30. Respondent’s records do not include either a medical history or an informed consent form. However, the records, which were offered as a joint exhibit, were not accompanied by a Certificate of Completeness of Patient Records, including the number of pages provided pursuant to Respondent’s investigatory subpoena, as is routine in cases of this sort, and which was provided with the records of the subsequent dentists involved in Patient S.S.’s care. Many of the records offered in these consolidated cases, including Respondent’s licensure file, include the certification attesting to their completeness. The records for Patient S.S. do not. Petitioner elicited no testimony from Respondent establishing the completeness of the records. The records offered were, by appearance, not complete. Respondent indicated that medical history and consent forms were obtained. Entries in the records introduced in evidence indicate “[m]edical history reviewed with patient” or the like. Entries for May 16, 2014, provide that “[c]rown consent explained and signed by patient” and “root canal consent explained and signed by patient.” The record for June 4, 2014, indicates that “[r]oot canal consent form explained to and signed by patient.” Patient S.S. testified that she had no recollection of having filled out a medical history, or of having signed consent forms after having Respondent’s recommended course of treatment explained to her. However, Patient S.S.’s memory was not clear regarding various aspects of her experience with Respondent and with subsequent providers. Much of her testimony was taken from notes she brought to the hearing, and some was even based on what she read in the Administrative Complaint. Her testimony failed to clearly and convincingly establish that Respondent failed to collect her medical history or consent to treatment. Respondent testified that, at the time Patient S.S. was being seen, her office was in the midst of switching its recordkeeping software and converting records to digital format. The new company botched the transition, and by the time the issue was discovered, many of the records being converted to digital format were lost, in whole or in part. Respondent surmised that, to the extent the records were not in her files provided to the Department, that they were affected by the transition. The greater weight of the evidence suggests that medical history and signed consent forms were provided. Given the issues regarding the records as described by Respondent, and given the Department’s failure to produce a certification or other evidence that the records it was relying on to prove the violation were complete, the Department failed to meet its burden to prove, by clear and convincing evidence, that Respondent failed to keep a written record of Patient S.S.’s medical history and signed consent forms. Respondent also testified that the office notes were supplemented with handwritten notations made when a patient returned for a subsequent appointment. Several of Patient S.S.’s printed records carried handwritten notes. Respondent testified that those notes were made at some time in 2014 after Patient S.S.’s first office visit up to the time of her last visit, and were based on further discussion with Patient S.S. However, those records, Joint Exhibit 2, pages 1 through 17, bear either a date or a “print” date of March 12, 2015. Dr. Brotman testified that he knew of no software on the market that would allow contemporaneous handwriting on electronic records. Thus, the evidence is compelling that the handwritten notes were made on or after the March 12, 2015, date on which the records were printed, well after Patient S.S.’s last office visit. A root canal involves removing a tooth’s pulp chamber and nerves from the root canals. The root canals are smoothed out and scraped with a file to help find and remove debris. The canals are widened using sequentially larger files to ensure that bacteria and debris is removed. Once the debris is removed, an inert material (such as gutta percha) is placed into the canals. A “core” is placed on top of the gutta percha, and a crown is placed on top of the core. The risk of reinfection from bacteria entering from the bottom of an underfilled tooth is significantly greater than if the tooth is filled to the apex of the root. Patient S.S. returned to Respondent’s office on May 16, 2014, for the root canal on tooth 30 and crown preparations for teeth 30 and 31, which included bite impressions. Temporary crowns were placed. Respondent’s printed clinical notes for May 16, 2014, gave no indication of any obstruction of the canals, providing only the lengths of the two mesial and two distal root canals. Respondent’s hand-written notes for May 16, 2014 (which, as previously explained, could have been made no earlier than March 12, 2015), stated that the canals were “[s]ealed to as far as the canal is open. The roots are calcification.” Dr. Brotman indicated that the x-rays taken on May 15, 2014, showed evidence of calcification of the roots. However, Dr. Brotman convincingly testified that the x-rays taken during the root canal show working-length files extending to near the apices of the roots. Thus, in his opinion, the canals were sufficiently open to allow for the use of liquid materials to soften the tooth, and larger files to create space to allow for the canals to be filled and sealed to their full lengths. His testimony in that regard is credited. Patient S.S. began having pain after the root canal on tooth 30 and communicated this to Respondent. On June 5, 2014, Patient S.S. presented to Respondent to have the crowns seated for teeth 30 and 31. Patient S.S. complained of sensitivity in tooth 31. The temporary crowns were removed, and tooth 31 was seen to have exhibited a change in color. The area was probed, which caused a reaction from Patient S.S. Respondent examined the tooth, and noted the presence of soft dentin. A root canal of tooth 31 was recommended and performed, which included removal of the decay in the tooth’s dentin at the exterior of the tooth. Respondent’s removal of decay changed the shape of tooth 31, and would have changed the fit of the crown, which was made based on the May 16, 2014, impressions. There were no new impressions for a permanent crown taken for tooth 31 after removal of the decayed dentin. Respondent testified that she could simply retrofill the affected area with a flowable composite, which she believed would be sufficient to allow for an acceptable fit without making new bite impressions and ordering a new crown. There was no persuasive evidence that such would meet the relevant standard of performance. Temporary crowns were placed on teeth 30 and 31, and placement of the permanent crowns was postponed until the next appointment. Upon completion of the tooth 31 root canal on June 5, 2014, x-rays were taken of the work completed on teeth 30 and 31. Dr. Brotman testified that the accepted standard of care for root canal therapy is to have the root canal fillings come as close to the apex of the tooth as possible without extending past the apex, generally to within one millimeter, and no more than two millimeters of the apex. His examination of the x-rays taken in conjunction with Respondent’s treatment of Patient S.S. revealed a void in the filling of the middle of the distal canal of tooth 31, an underfill of approximately five millimeters in the mesial canal of tooth 31, an underfill of approximately four millimeters in the distal canal of tooth 30, and an underfill of approximately six millimeters in the two mesial root canals of tooth 30. The x-ray images also revealed remaining decay along the mesiobuccal aspect of the temporary crown placed on tooth 31. His testimony that the x-ray images were sufficiently clear to provide support for his opinions was persuasive, and was supported by the images themselves. A day after the placement of the temporary crowns, they came off while Patient S.S. was having dinner in Gainesville. She was seen by Dr. Abolverdi, a dentist in Gainesville. Dr. Abolverdi cleaned the teeth, took an x-ray, and re-cemented the temporary crowns in place. Patient S.S. next presented to Respondent on June 10, 2014. Both of Patient S.S.’s permanent crowns were seated. The permanent crown for tooth 31 was seated without a new impression or new crown being made. Patient S.S. was subsequently referred by her dentist, Dr. James Powell, to be seen by an endodontist to address the issues she was having with her teeth. She was then seen and treated by Dr. John Sullivan on July 25, 2014, and by Dr. Thomas Currie on July 29, 2014, both of whom were endodontists practicing with St. Johns Endodontics. As to the pain being experienced by Patient S.S., Dr. Sullivan concluded that it was from her masseter muscle, which is consistent with Respondent’s testimony that Patient S.S. was a “bruxer,” meaning that she ground her teeth. Dr. Sullivan also identified an open margin with the tooth 31 crown. His clinical assessment was consistent with the testimony of Dr. Brotman. The evidence was clear and convincing that the defect in the tooth 31 permanent crown was an open margin, and not a “ledge” as stated by Respondent. The evidence was equally clear and convincing that the open margin was the result of performing a “retrofill” of the altered tooth, rather than taking new bite impressions to ensure a correct fit. As a result of the foregoing, Respondent violated the accepted standard of performance by failing to take a new crown impression of tooth 31 following the removal of dentin on June 4, 2014, and by failing to assess and correct the open margin on the tooth 31 crown. Radiographs taken on July 25, 2014, confirmed that canals in teeth 30 and 31 were underfilled, as discussed above, and that there was a canal in tooth 31 that had been missed altogether. On July 29, 2014, Dr. Currie re-treated the root canal for tooth 31, refilled the two previously treated canals, and treated and filled the previously untreated canal in tooth 31. The evidence, though disputed, was nonetheless clear and convincing that Respondent failed to meet the standard of performance in the root canal procedures for Patient S.S.’s teeth 30 and 31, by failing to adequately diagnose and respond to the condition of the roots of tooth 30; failing to adequately fill the canals of tooth 30 despite being able to insert working-length files beyond the area of calcification to near the apices of the roots; and failing to adequately fill the canals of tooth 31 during root canal treatment. The Administrative Complaint also alleged that Respondent failed to adequately diagnose decay in tooth 30. The evidence was not clear and convincing that Respondent failed to adequately diagnose decay in tooth 30. Case No. 19-2900PL - The G.H. Administrative Complaint Case No. 19-2900PL charges Respondent with violating section 466.028(1)(x) by failing to adequately diagnose issues with the crown on tooth 13 and provide appropriate corrective treatment. On May 15, 2014, Patient G.H. presented to Respondent with a complaint that she had been feeling discomfort on the upper left of her teeth that was increasingly noticeable. Respondent diagnosed the need for a root canal of tooth 13. Patient G.H. agreed to the treatment, and Respondent performed the root canal at this same visit. Patient G.H. also had work done on other teeth to address “minor areas of decay.” On July 7, 2014, Patient G.H.’s permanent crowns were seated onto teeth 8, 9, and 13, and onlay/inlays placed on teeth 12 and 14. On July 29, 2014, Patient G.H. presented to Respondent. Respondent’s records indicate that Patient G.H. complained that when she flossed around tooth 13, she was getting “a funny taste” in her mouth. Patient G.H.’s written complaint and her testimony indicate that she also advised Respondent that her floss was “tearing,” and that she continued to experience “pressure and discomfort” or “some pain.” Respondent denied having been advised of either of those complaints. Respondent flossed the area of concern, and smelled the floss to see if it had a bad smell. Respondent denied smelling anything more than typical mouth odor, with which Patient G.H. vigorously disagreed. Respondent took a radiograph of teeth 11 through 15, which included tooth 13 and the crown. The evidence is persuasive that the radiograph image revealed that the margin between tooth 13 and the crown was open. An open margin can act as a trap for food particles, and significantly increases the risk for recurrent decay in the tooth. Respondent adjusted the crown on tooth 9, but advised Patient G.H. that there was nothing wrong with the crown on tooth 13. She offered to prescribe a rinse for the smell, but generally told Patient G.H. that there were no complications. Patient G.H. began to cry and, when Respondent left the room, got up from the chair and left the office. Respondent indicated in her testimony that she would have performed additional investigation had Patient G.H. not left. The contemporaneous records do not substantiate that testimony. Furthermore, Respondent did not contact Patient G.H. to discuss further treatment after having had a full opportunity to review the radiograph image. On March 10, 2015, after her newly-active dental insurance allowed her to see a different in-network provider, Patient G.H. sought a second opinion from Dr. Ada Y. Parra, a dentist at Premier Dental in Gainesville, Florida. Dr. Parra identified an open distal margin at tooth 13 with an overhang. Dr. Parra recommended that Patient G.H. return to Respondent’s practice before further work by Premier Dental. Patient G.H. called Respondent’s office for an appointment, and was scheduled to see Dr. Lindsay Kulczynski, who was practicing as a dentist in Respondent’s Lake City, Florida, office. Patient G.H. was seen by Dr. Kulczynski on March 19, 2015. Upon examination, Dr. Kulczynski agreed that the crown for tooth 13 “must be redone” due to, among other defects, “[d]istal lingual over hang [and] open margin.” The open margin was consistent with Patient G.H.’s earlier complaints of discomfort, floss tearing, and bad odor coming from that tooth. The evidence was persuasive that further treatment of Patient G.H. was not authorized by Respondent after the appointment with Dr. Kulczynski. Dr. Brotman credibly testified that the standard of care in crown placement allows for a space between the tooth and the crown of between 30 and 60 microns. Dr. Brotman was able to clearly identify the open margin on the radiograph taken during Patient G.H.’s July 29, 2014, appointment, and credibly testified that the space was closer to 3,000 microns than the 30 to 60 microns range acceptable under the standard of performance. His testimony is accepted. An open margin of this size is below the minimum standard of performance. The evidence was clear and convincing that Respondent fell below the applicable standard of performance in her treatment of Patient G.H., by seating a crown containing an open margin and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies. Case No. 19-2901PL - The J.D. Amended Administrative Complaint Case No. 19-2901PL charges Respondent with violating section 466.028(1)(x) by: Failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; Failing to appropriately place the implant by attempting to place it into a curved root, which could not accommodate the implant; Failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and/or Paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D. Patient J.D. first presented to Respondent on June 28, 2014. At the time, Respondent was practicing with Dr. Jacobs, who owned the practice. Patient J.D. had been a patient of Dr. Jacobs for some time. Respondent examined Patient J.D. and discovered problems with tooth 14. Tooth 14 and tooth 15 appeared to have slid into the space occupied by a previously extracted tooth. As a result, tooth 14 was tipped and the root curved from moving into the space. Tooth 14 had been filled by Dr. Jacobs. However, by the time Respondent examined it, the tooth was not restorable, and exhibited 60 percent bone loss and class II (two millimeters of movement) mobility. Respondent discussed the issue with Patient J.D., and recommended extraction of the two teeth and replacement with a dental implant. Patient J.D. consented to the procedure and executed consent forms supplied and maintained by Dr. Jacobs. The teeth at issue were in the upper jaw. The upper jaw consists of softer bone than the lower jaw, is more vascular, and includes the floor of the nose and sinuses. The periapical radiographs taken of Patient J.D. showed that he had a “draped sinus,” described by Respondent as being where “the tooth is basically draped around the sinuses. It’s almost like they’re kind of one.” Prior to Patient J.D., Respondent had never placed an implant in a patient with a draped sinus. The x-rays also indicated that, as a result of the previous extraction of teeth and the subsequent movement of the remaining teeth, the roots of tooth 14 were tipped and curved. The evidence was persuasive that Respondent did not fail to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, the extent of available bone support, and the configuration of the roots. Dr. Kinzler testified credibly that the pneumatized/draped sinus, the 60 percent bone loss around tooth 14, and the tipped and curved roots each constituted pre- operative red flags. Respondent extracted teeth 14 and 15. When she extracted the teeth, she observed four walls. She was also able to directly observe the floor of the sinus. She estimated the depth of the socket to be 12 millimeters. Sinus penetration is a potential complication of implant placement. Being able to see the sinus floor was an additional complicating factor for implant placement. Dr. Kinzler credibly testified that if Respondent was going to place an implant of the size she chose (see below), then the standard of care required her to first do a sinus lift before placing the implant. A sinus lift involves physically lifting the floor of a patient’s sinus. Once the sinus has been lifted, material typically consisting of granulated cortical bone is placed into the space created. Eventually, the bone forms a platform for new bone to form, into which an implant can be inserted. The evidence established that the standard of care for bone replacement materials is to place the material into the space, close the incision, and allow natural bone to form and ultimately provide a stable structure to affix an implant. The implant may then be mechanically affixed to the bone, and then biologically osseointegrate with the bone. In order to seal off Patient J.D.’s sinus, Respondent used Bond Bone, which she described as a fast-setting putty-like material that is designed to protect the floor of the sinus and provide a scaffold for bone to grow into. She did not use cortical bone, described as “silly sand,” to fill the space and provide separation from the sinus because she indicated that it can displace and get lost. Respondent’s goal was to place the implant so that it would extend just short of the Bond Bone and Patient J.D.’s sinus. She also intended to angle the implant towards the palate, where there was more available bone. Bond Bone and similar materials are relatively recent innovations. Dr. Fish was encouraged by the possibilities of the use of such materials, though he was not familiar with the Bond Bone brand. The evidence was clear and convincing that, although Bond Bone can set in a short period, and shows promise as an effective medium, it does not currently meet minimum standards of performance for bone replacement necessary for placement and immediate support of an implant. Bond Bone only decreases the depth of the socket. It does not raise the floor of the sinus. As such, the standard practice would be to use a shorter implant, or perform a sinus lift. Respondent was provided with an implant supplied by Dr. Jacobs. She had not previously used the type of implant provided. The implant was a tapered screw vent, 4.7 millimeters in diameter, tapering to 4.1 millimeters at the tip with a length of 11.5 millimeters. Respondent met with and received information from the manufacturer’s representative. She used a 3.2 millimeter drill to shape the hole, as the socket was already large enough for the implant. The 3.2 millimeter drill was not evidence that the receiving socket was 3.2 millimeters in diameter. Respondent then inserted the implant and its carrier apparatus into the hole. The implant did not follow the root, and had little bone on which to affix. The initial post-placement periapical radiograph showed “placement was not correct.” Despite Respondent’s intent, the implant was not angled, but was nearly vertical, in contrast with the angulation of the socket which was tipped at least 30 degrees. Given the amount of bone loss, and the other risk factors described herein, the risk of a sinus perforation, either by having the implant extend through the root opening or by a lateral perforation through one of the sides of the socket, was substantial. After adjusting the implant, Respondent went to remove the carrier. The carrier would not release, and the pressure exerted caused the implant to loosen and begin to sink through the Bond Bone. Dr. Kinzler testified credibly that, because of the mechanics of the implant used, had it been surrounded by bone, it would not have been possible for the implant to become loose. In his opinion, which is credited, the loosening of the implant was the result of the lack of bone to hold it in place. Respondent was so intent on removing the carrier that she was not paying attention to the implant. As a result, she screwed the implant through the Bond Bone and into Patient J.D.’s sinus. By the time she realized her error, the implant had sunk in to the point it was not readily retrievable. She was hesitant to reaffix the carrier “because [she] knew [she] had no support from the bone, that it was just a matter of air.” Nonetheless, she “stuck the carrier back in, but it would not go back in.” She then turned to get forceps or a hemostat but, by that time, the implant was irretrievably into Patient J.D.’s sinus. At the hearing, Respondent testified that she could have retrieved the implant but for Patient J.D. doing a “negative pressure sneeze” when the implant was already into the sinus. At that point, she stated that the implant disappeared into Patient J.D.’s sinus, where it can be seen in Petitioner’s Exhibit 9, page 35. There is nothing in Respondent’s dental records about Patient J.D. having sneezed. Respondent further testified that Patient J.D. “was very jovial about it,” and that everyone in the office laughed about the situation, and joked about “the sneeze implant.” That the patient would be “jovial” about an implant having been screwed into his sinus, resulting in a referral to an oral surgeon, and that there was office-wide joking about the incident is simply not credible, particularly in light of the complete absence of any contemporaneous records of such a seemingly critical element of the incident. Respondent believed that the implant must have been defective for her to have experienced the problem with removing the carrier, though her testimony in that regard was entirely speculative. There is no competent, substantial, or persuasive evidence to support a finding that the implant was defective. After determining that the implant was in Patient J.D.’s sinus, Respondent informed Patient J.D. of the issue, gave him a referral to an oral surgeon, prescribed antibiotics, and gave Patient J.D. her cell phone number. Each of those acts was appropriate. On July 29, 2014, an oral surgeon surgically removed the implant from Patient J.D.’s sinus. Patient J.D. sued Respondent for medical malpractice. The suit was settled, with the outcome including a $75,000.00 indemnity paid by Respondent’s insurer on her behalf. The Office of Insurance Regulation’s Medical Malpractice Closed Claims Report provides that the suit’s allegations were based on “improper dental care and treatment.” The evidence was not clear and convincing that Respondent failed to meet the minimum standards of performance prior to the procedure at issue by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations prior to the procedure. The evidence was clear and convincing that Respondent failed to meet the minimum standards of performance by failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing the implant in the area of tooth 14, and by placing the implant into a curved root which could not accommodate the implant. The placement of Bond Bone was not adequate to address these issues. The evidence was clear and convincing that Respondent failed to meet the standard of care by failing to pay attention while trying to twist off the carrier and by failing to appropriately react to the sinking implant. The evidence was clear and convincing that Respondent paid, or had paid on her behalf, an indemnity of $75,000 for negligent conduct during treatment of Patient J.D. The perforation of Patient J.D.’s sinus was not, in itself, a violation of the standard of care. In that regard, Dr. Kinzler indicated that he had perforated a sinus while placing an implant. It was, however, the totality of the circumstances regarding the process of placing Patient J.D.’s implant that constituted a failure to meet the minimum standards of performance as described herein. Case No. 19-2902PL - The J.A.D. Amended Administrative Complaint Count I Case No. 19-2902PL, Count I, charges Respondent with violating section 466.028(1)(x) by: Failing to take adequate diagnostic imaging prior to placing an implant in the area of Patient J.A.D.’s tooth 8; Failing to pick an appropriately-sized implant and placing an implant that was too large; and/or Failing to diagnose and/or respond appropriately to the oral fistula that developed in the area of Patient J.A.D.’s tooth 8. Count II Case No. 19-2902PL, Count II, charges Respondent with violating section 466.028(1)(m) by: Failing to document examination results showing Patient J.A.D. had an infection; Failing to document the model or serial number of the implant she placed; and/or Failing to document the results of Respondent’s bone examination. Patient J.A.D. first presented to Respondent on March 3, 2016. His first appointment included a health history, full x-rays, and an examination. Patient J.A.D.’s complaint on March 3, 2016, involved a front tooth, tooth 8, which had broken off. He was embarrassed by its appearance, and desired immediate care and attention. Respondent performed an examination of Patient J.A.D., which included exposing a series of radiographs. Based on her examination, Respondent made the following relevant diagnoses in the clinical portion of her records: caries (decay) affecting tooth 7, gross caries affecting fractured tooth 8, and caries affecting tooth 9. Patient J.A.D. was missing quite a few of his back teeth. The consent form noted periodontal disease. The evidence is of Patient J.A.D.’s grossly deficient oral hygiene extending over a prolonged period. A consent form signed by Patient J.A.D. indicates that Patient J.A.D. had an “infection.” Respondent indicated that the term indicated both the extensive decay of Patient J.A.D.’s teeth, and a sac of pus that was discovered when tooth 8 was extracted. “Infection” is a broad term in the context of dentistry, and means any bacterial invasion of a tooth or system. The consent form was executed prior to the extraction. Therefore, the term “infection,” which may have accurately described the general condition of Patient J.A.D.’s mouth, could not have included the sac of pus, which was not discovered until the extraction. The sac of pus was not otherwise described with specificity in Respondent’s dental records. A pre-operative radiograph exposed by Respondent showed that tooth 8 had a long, tapering root. Respondent proposed extraction of tooth 8, to be replaced by an immediate implant. The two adjacent teeth were to be treated and crowned, and a temporary bridge placed across the three. Patient J.A.D. consented to this treatment plan. The treatment plan of extracting tooth 8 and preparing the adjacent teeth for crowns was appropriate. Respondent cleanly extracted tooth 8 without fracturing any surrounding bone, and without bone adhering to the tooth. When the tooth came out, it had a small unruptured sac of pus at its tip. Respondent irrigated and curretted the socket, and prescribed antibiotics. Her records indicated that she cleaned to 5 millimeters, although a radiograph made it appear to be a 7 millimeter pocket. She explained that inflammation caused the pocket to appear larger than its actual 5 millimeter size, which she characterized as a “pseudo pocket.” She recorded her activities. The response to the sac of pus was appropriate. Respondent reviewed the earlier radiographs, and performed a physical examination of the dimensions of the extracted tooth 8 to determine the size of the implant to be placed into the socket. Dr. Kinsler and Dr. Fish disagreed as to whether the radiographic images were sufficient to provide adequate information as to the implant to be used. Both relied on their professional background, both applied a reasonable minimum standard of performance, and both were credible. The evidence was not clear and convincing that Respondent failed to take adequate diagnostic imaging prior to placing an implant to replace Patient J.A.D.’s tooth 8. Respondent placed an implant into the socket left from tooth 8. The implant was in the buckle cortex, a “notoriously thin” bone feature at the anterior maxilla. The fact that it is thin does not make it pathological, and placement of an implant near a thin layer of bone is not a violation of the standard of performance as long as the implant is, in fact, in the bone. The implant used by Respondent was shorter than the length of tooth 8 and the tooth 8 socket, and did not have a full taper, being more truncated. The evidence of record, including the testimony of Dr. Kinzler, indicates that the length of the implant, though shorter than the tooth it was to replace, was not inappropriate. The evidence of record, including pre-extraction and post-implantation scaled radiographs offered as a demonstrative exhibit, was insufficient to support a finding that the implant diameter was too great for the available socket. Patient J.A.D. felt like the implant was too close to the front of his maxillary bone because it felt like a little bump on the front of his gums. That perception is insufficient to support a finding that the placement of the implant violated a standard of performance. Subsequent x-rays indicated that there was bone surrounding the implant. Clinical observations by Respondent after placement of the implant noted bone on all four walls of the implant. Her testimony is credited. The evidence that the tooth 8 implant was not placed in bone, i.e., that at the time the implant was placed, the implant penetrated the buccal plate and was not supported by bone on all four sides, was not clear and convincing. Respondent’s records document the dimensions and manufacturer of the implant. Implants are delivered with a sticker containing all of the relevant information, including model and serial number, that are routinely affixed to a patient’s dental records. It is important to document the model and serial number of implants. Every implant is different, and having that information can be vital in the case of a recall. Patient J.A.D.’s printed dental records received by the Department from Respondent have the implant size (5.1 x 13 mm) and manufacturer (Implant Direct) noted. The records introduced in evidence by the Department include a page with a sticker affixed, identified by a handwritten notation as being for a “5.1 x 13mm - Implant Direct.” (Pet. Ex. 11, pg. 43 of 83). The accompanying sticker includes information consistent with that required. Dr. Fish testified to seeing a sticker that appears to be the same sticker (“The implant label of 141, it just has the handwritten on there that it should be added.”), though it is described with a deposition exhibit number (page 141 of a CD) that is different from the hearing exhibit number. Dr. Fish indicated the sticker adequately documented the implant information. The evidence was not clear and convincing that the sticker was not in Patient J.A.D.’s records, or that Respondent failed to document the model or serial number of the implant she placed. Later in the day on March 3, 2016, Patient J.A.D. was fitted for a temporary crown, which was placed on the implant and the adjacent two teeth, and Patient J.A.D. was scheduled for a post-operative check. Patient J.A.D. appeared for his post-operative visit on March 10, 2016. He testified that he was having difficulty keeping the temporaries on, and was getting “cut up” because the two outer teeth were sharp and rubbed against his lip and tongue. Respondent noticed that Patient J.A.D. was already wearing a hole in the temporary. Since Patient J.A.D. was missing quite a few of his back teeth, much of his chewing was being done using his front teeth. His temporaries were adjusted and reseated. On March 17, 2016, Patient J.A.D. was seen by Respondent for a post-operative check of the tooth 8 extraction and implant placement. The notes indicated that Patient J.A.D. had broken his arm several days earlier, though the significance of that fact was not explained. He was charted as doing well, and using Fixodent to maintain the temporary in place. The records again noted that Patient J.A.D. had worn a hole in the back of the tooth 9 temporary crown. A follow up was scheduled for final impressions for the permanent crowns. On March 10 and March 17, 2016, Patient J.A.D. complained of a large blister or “zit” that formed over the area above the end of the implant. Patient J.A.D. had no recollection of whether Respondent told him he had an infection. He was prescribed antibiotics. The evidence was not clear and convincing that the “zit” was causally related to the placement of the implant. Patient J.A.D. also testified that the skin above tooth 9 was discolored, and he thought he could almost see metal through the skin above his front teeth. Patient J.A.D. next appeared at Respondent’s office on June 2, 2016, for final impressions. Respondent concluded that the site had not healed enough for the final impression. She made and cemented a new temporary, and set an appointment for the following month for the final impression. Patient J.A.D. did not return to Respondent. On September 28, 2016, Patient J.A.D. presented to the office of Dr. Harold R. Arthur for further treatment. The records for that date indicate that he appeared without his temporary restoration for teeth 7 through 9, stating that he had several at home, but they would not stay on. Dr. Arthur probed a “[s]mall (1.0 x 1.0 mm) red spot in facial keratinized gingiva communicating with implant.” After probing the opening in the gingiva and the “shadow” in the gingiva, he believed it was at the center of the implant body and healing screw. Dr. Arthur’s dental records for Patient J.A.D. over the course of the following year indicate that Dr. Arthur made, remade, and re-cemented temporary crowns for teeth 7, 8, and 9 on a number of occasions, noting at least once that Patient J.A.D. “broke temps” that had been prepared and seated by Dr. Arthur. On December 1, 2016, Patient J.A.D. was reevaluated by Dr. Arthur. He noted the facial soft tissue at the implant was red, with an apparent fistula. A periapical radiograph was “unremarkable.” The temporary crowns, which were loose, were removed, air abraded to remove the cement, and re-cemented in place. Patient J.A.D. was prescribed an antibiotic. He was again seen by Dr. Arthur on December 13, 2016. The temporary on tooth 9 was broken, which was then remade and re-cemented. The fistula was smaller but still present. Patient J.A.D. was seen by Dr. Arthur on February 2, 2017, with the tooth 9 temporary crown fractured again. The fistula was still present. Patient J.A.D. advised that “the bone feels like it’s caving in around where she put that implant.” That statement is accepted not for the truth of the matter asserted, but as evidence that the complaint was first voiced in February 2017. On April 4, 2017, more than a year after the placement of the implant, Patient J.A.D was seen by Dr. Arthur. Dr. Arthur determined that the implant for tooth 8 was “stable and restorable in current position.” The fistula was still present and, after anesthesia, a probe was placed in the fistula where it contacted the implant cover screw. Although Dr. Arthur replaced the implant abutment, he ultimately placed the final crown on the implant placed by Respondent, where it remained at the time of the final hearing. The fact that incidents of Patient J.A.D. breaking and loosening the temporary crowns that occurred with Respondent continued with Dr. Arthur supports a finding that the problems were, more likely than not, the result of stress and overuse of Patient J.A.D.’s front teeth. On October 24, 2016, a series of CBCT radiographs was taken of the implant and its proximity to tooth 7. Dr. Kinzler testified that, in his opinion, the implant was of an appropriate length, but was too large for the socket. Much of his testimony was based on the October 24 radiograph and his examination of the resulting October 29, 2016, report. Although the report indicated that there was minimal bone between the implant and the root of tooth 7, and that the buccal cortex appeared thinned or eroded, those observations are of limited persuasive value as to whether the standard of performance was met almost eight months prior. Patient J.A.D. obviously worked, and overworked, his dental appliances. Without more, the evidence is not clear and convincing that his subsequent and repeated problems, including “thinned or eroded” bone in the buccal cortex, were the result of a violation of the standard of performance in the sizing and placement of the tooth 8 implant by Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Dentistry, enter a Final Order: Dismissing the Administrative Complaint in Case No. 19-2898PL and the Amended Administrative Complaint in Case No. 19-2902PL; With regard to Case No. 19-2899PL: 1) dismissing Count I of the Administrative Complaint; 2) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient S.S. by: failing to adequately diagnose the condition of the roots of tooth 30; failing to adequately obturate the canals of tooth 30 during root canal treatment; failing to adequately obturate the canals of tooth 31 during root canal treatment; failing to take a new crown impression of tooth 31 following changes to the tooth’s margins; and failing to adequately assess and correct the crown on tooth 31 when the fit was compromised, as alleged in Count II of the Administrative Complaint; and 3) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient S.S. by failing to adequately diagnose decay in tooth 30, as alleged in Count II of the Administrative Complaint; With regard to Case No. 19-2900PL, determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient G.H. by seating a crown containing an open margin on tooth 13 and failing to adequately diagnose issues with the crown on tooth 13, and by failing to perform appropriate corrective treatment after having sufficient evidence of the deficiencies, as alleged in the Administrative Complaint; With regard to Case No. 19-2901PL: 1) determining that Respondent failed to comply with the applicable standard of performance in the care and treatment of Patient J.D. by: failing to lift, or refer for lifting of, Patient J.D.’s sinus before placing an implant in the area of tooth 14; failing to appropriately place the implant by attempting to place it into a curved root which could not accommodate the implant; failing to react appropriately to the sinking implant by trying to twist off the carrier instead of following the technique outlined in the implant’s manual; and paying, or having paid on her behalf, an indemnity in the amount of $75,000 as a result of negligent conduct in her treatment of Patient J.D., as alleged in the Amended Administrative Complaint; and 2) determining that Respondent did not fail to comply with the applicable standard of performance in the care and treatment of Patient J.D. by failing to obtain sufficient radiographic imaging showing Patient J.D.’s sinus anatomy, extent of available bone support, and/or root locations; Suspending Respondent’s license in accordance with rule 64B5-13.005(1)(x) and rule 64B5-13.005(3)(e), to be followed by a period of probation, with appropriate terms of probation to include remedial education in addition to such other terms that the Board believes necessary to ensure Respondent’s practical ability to perform dentistry as authorized by rule 64B5- 13.005(3)(d)2.; Imposing an administrative fine of $10,000; and Requiring reimbursement of costs. DONE AND ENTERED this 31st day of January, 2020, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 31st day of January, 2020. COPIES FURNISHED: George Kellen Brew, Esquire Law Office of George K. Brew Suite 1804 6817 Southpoint Parkway Jacksonville, Florida 32216 (eServed) Kelly Fox, Esquire Department of Health 2585 Merchant’s Row Tallahassee, Florida 32311 (eServed) Octavio Simoes-Ponce, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Chad Wayne Dunn, Esquire Prosecution Services Unit Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed) Jennifer Wenhold, Interim Executive Director Board of Dentistry Department of Health Bin C-08 4052 Bald Cypress Way Tallahassee, Florida 32399-3258 (eServed) Louise Wilhite-St. Laurent, General Counsel Department of Health Bin C-65 4052 Bald Cypress Way Tallahassee, Florida 32399 (eServed)
The Issue During the course of the hearing, the Respondent raised the timeliness of the proceedings against him and argued that the delay by the Department in bringing the charges against him had prejudiced his ability to defend the charges. This motion was taken under advisement, and, because the Department had released its investigator who was knowledgeable of the events relating to the delay, both sides were given the opportunity to present testimony in writing. This process has delayed the entry of this order. 1/ The facts reveal that the Department became aware of the incident involving Ms. McCardell in April 1980 and even had her examined by a physician in May of that year; yet the investigation was not forwarded to the Department until November 1981. No real explanation of this delay was offered, and, as a result, the Administrative Complaint did not issue until May 1982. Therefore, the Respondent was prejudiced by the failure of the Department to charge him when the Department had full knowledge of the facts upon which the complaint is based. However, to prevent further delay in the resolution of this matter which might occur upon appeal of this case on a recommended order of dismissal, and because a full hearing on the merits was conducted, a full finding on the case will be presented. The sole issue is whether the Respondent is guilty of the charges as alleged.
Findings Of Fact The Respondent, Rudolph C. Freyeisen, is a licensed masseur holding licenses number MA 0003363 and MA 000141 issued by the Department of Professional Regulation. On March 31, 1980, the Respondent administered a colonic irrigation to Debra McCardell (now Ballard) at Natural Health Center, Inc., 1515 Southeast 46th Lane, Cape Coral, Florida. Ms. McCardell had sought treatment at the Center because of extreme constipation. She had called for an appointment prior to going to the Center with her husband. The Respondent told Ms. McCardell that there was a doctor available on the premises and that he could contact the doctor and have him available. (Tr. 17-18.) A doctor, who practiced in the same building, normally supported the Center; however, at the time of Ms. McCardell's visit, this doctor was not seeing patients due to an injury. Another doctor, who was seeing his patients, was on call and was available by appointment to see clients of the Center. (Tr. 197-198.) The Respondent gave Ms. McCardell a proper pretreatment examination and found no contradictions which would have required Ms. McCardell to be seen by a doctor. At the time of this proctological examination, Ms. McCardell had no observable hemorrhoids. The Respondent did feel hardened stool in Ms. McCardell's colon. The Respondent used a colonic irrigation machine to administer the treatment to Ms. McCardell. This machine functions by inducing water into the colon through a polished metal speculum, approximately four inches long and five-eighths of an inch in diameter, which is inserted into the rectum. The water pressure is not more than two pounds per square inch, and the speculum is designed to be forced out of the rectum by a pressure greater than two pounds per square inch. (Tr. 174.) Normally, after water is placed in the colon, the masseur massages the abdomen in a circular motion descending along the large colon. This loosens fecal matter and assists the client in passing stool. Properly performed, the procedure cannot harm the body. (Tr. 91.) Discomfort from the natural distention of the colon and from cramps caused by gas are frequently associated with the treatment and are expected, as with an enema. The pressure of the water and gas are released by operation of a valve, which permits the water to flow out of the colon. (Tr. 97, 172.) When Ms. McCardell saw the Respondent, she was complaining of severe constipation and a prolonged history of bowel problems. During her treatment, the speculum was forced out of the colon on several occasions, and the pressure was released on several other occasions. The Respondent discontinued the treatment after Ms. McCardell continued to complain of discomfort and pain. At the conclusion of the unsuccessful treatment, Ms. McCardell defecated. (Tr. 19.) Passage of an enlarged, hardened stool can cause hemorrhoids to appear. (Tr. 101.) After treatment and defecation, Ms. McCardell experienced pain in her rectum. She determined that she had severe hemorrhoids and contacted the Center desiring to see the doctor. The Respondent advised her that she could see the doctor in two or three days (she could not recall exactly) when he was scheduled to be at the Center. Ms. McCardell refused this offer and, after four days, saw Dr. Drulans. She delayed seeking medical assistance because her husband did not like to pay her medical bills. The examination at the hospital revealed that she had severe hemorrhoids and bruises in the rectal area. She was also seen by Dr. Mufdi for the same complaint during the month of May. She complained of a bloody discharge and pain; however, Dr. Drulans determined that the bleeding was vaginal in nature. (Tr. 27, 54-55.) Ms. McCardell saw Dr. Rectine on May 5, 1980, through arrangements with the Department's investigator as part of the investigation of Respondent. At the time, Ms. McCardell was complaining of tenderness and swelling in the area of the right ovary and fallopian tube. Dr. Rectine discovered objective evidence of swelling in her physical examination of Ms. McCardell; however, external and internal examination, x-ray examination, ultrasound examination, and, ultimately, a laparoscopy did not reveal any trauma to the colon or chronic disease. Based upon Ms. McCardell's description to her of the manner in which the speculum was inserted and Ms. McCardell's association of the onset of the symptoms with the colonic treatment, Dr. Rectine concluded that it was possible that the treatment had caused Ms. McCardell's problem. It would be difficult to insert the speculum in the rectum with a client in the position Ms. McCardell was in, as described by Dr. Rectine, and impossible to do so without some trauma to the bowel. Having participated in a demonstration of the technique used to insert the speculum and having seen it, Dr. Rectine was inconclusive about the ability of the procedure to have caused Ms. McCardell's problem. (Tr. 106-107, 107-110.) Ms. McCardell did not state at hearing the manner in which the speculum was inserted. She did not mention any discomfort related to insertion of the speculum to the Respondent or in her testimony about the incident. Based upon the size of the speculum and upon the demonstration by Dr. Rectine and the Respondent, it would have been impossible for the speculum to have contacted Ms. McCardell's ovary. The speculum could not have caused the bruises to the rectum. The hemorrhoids were not caused by the speculum, but by downward; pressure, most likely when passing the stool after the treatment. Ms. McCardell's husband had a history of assaulting her. It is as likely that any injury to her abdomen was from her husband's assaultive conduct as from the Respondent's treatment, and no evidence of trauma from any source was ever discovered. (Tr. 52, 53.)
Recommendation Having found the Respondent, Rudolph C. Freyeisen, not guilty of the allegations contained in the Administrative Complaint, it is recommended that the Administrative Complaint filed against the Respondent be dismissed. DONE and RECOMMENDED this 29th day of November, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN, 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 29th day of November, 1983.
Findings Of Fact Donn M. Patterson, Petitioner, was employed by the City of Lakeland, Florida as a Water Plant Operator I (WPO I) in 1982 and was promoted to Water Plant Operator II (WPO II) in 1985 or 1986 after obtaining his Class C WPO license. In July 1988 Petitioner was involved in a motorcycle accident in which he received serious head injuries and was unable to return to work for nearly one year. Because of his extended absence he was terminated on June 26, 1989. (Ex. 10). In 1990 Respondent had a vacancy for the position of WPO I and advertised for applicants for this position. Petitioner was one of those applicants. WPO I is an entry level position for which Petitioner met all the requirements. Petitioner has completed more than two years of college and, on the examination given to the 60-65 applicants for the WPO I position, Petitioner received a higher score than did the individual who was hired, Perry Cochran. Petitioner testified that he went to the water plant and went through the various tasks that water plant operators perform while on duty, and that he, with some minor adjustments, could perform all of those functions. No medical evidence was presented that Petitioner could or could not perform the duties required of a WPO I. However, the stipulation of the parties that the only issue for resolution is whether Respondent's stated reason for not employing Petitioner is pretextual, removes the requirement that Petitioner demonstrated that he is in the covered position of handicap. Petitioner's supervisor while he was employed by the City of Lakeland, John Sluski, is presently Superintendent of Production. Sluski has worked his way up in the Lakeland Water Department from WPO I, II, and III to Chief Operator, temporary superintendent and superintendent. Most of the time while Petitioner was employed by Lakeland Sluski was Chief Operator whose principle function was to supervise water plant operations and water plant operators. A municipal water plant is a 24 hour per day operation with three shifts each 24 hours. The day shift (from 6:45 a.m. to 2:45 p.m.) has a lead operator (WPO III) and 3 or 4 WPO IIs. The afternoon shift (2:45 - 10:45) has a lead operator, one or two WPO IIs and the midnight shift has a lead operator only part of the time and a WPO II in charge the balance of the time with another WPO II and a WPO I. Petitioner generally received satisfactory performance evaluations during the period from 1982 until 1985 as a WPO I. His evaluation as a WPO II in July 1986 was also satisfactory; however, his evaluation in August 1987 (Ex. 2) was decidedly below his previous evaluations and contained numerous adverse comments about Petitioner's performance and attitude. Similarly, Petitioner was recommended for merit pay increases each time he was eligible except in August 1987. (Ex. 3) Although Petitioner's evaluation in August 1987 showed only 8 days Petitioner was late for work, Mr. Sluski testified that Petitioner was frequently late reporting for his shift and that this was irritating to the person he was to relieve and destructive of morale at the plant. This lateness varied from a few minutes to an hour or more and the person to be relieved had to remain on duty until Petitioner relieved him. During the period between December 1983 through January 1987 the time cards (Ex 7) showed Petitioner late reporting for work some 166 times. When Sluski spoke to Petitioner about his tardiness Petitioner's attendance would improve for a short while but then revert. When Sluski received Petitioner's application for the WPO I position in 1990 he called Petitioner's latest employer, The City of Dundee, and was told Petitioner had been terminated. This factor plus the numerous times Petitioner had been late for work while employed by the Lakeland Water Department led Sluski not to interview Petitioner for the position and to employ Perry Cochran. Petitioner testified, without contradiction, that he was terminated by the City of Dundee because he lived too far away to be on call in an emergency situation which the job required.
Recommendation It is recommended that the Petition for relief from an unlawful employment practice, based on handicap, filed by Donn M. Patterson against the City of Lakeland, be dismissed. DONE and ORDERED this 6th day of January, 1993, in Tallahassee, Leon County, Florida. K. N. AYERS 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 6th day of January, 1993. COPIES FURNISHED: Timothy J. McCausland Assistant City Attorney 228 S. Massachusetts Avenue Lakeland, Florida 33801-5086 Robert H. Grizzard, II, Esquire P.O. Box 992 Lakeland, Florida 33801-5006 City Clerk City of Lakeland 228 South Massachusetts Avenue Lakeland, Florida 33801-5086 Margaret Jones/Clerk Florida Human Relations Commission Bldg F, Suite 240 325 John Knox Road Tallahassee, Florida 32303 4149 Dana Baird, Esquire General Counsel Florida Human Relations Commission Bldg F, Suite 240 325 John Knox Road Tallahassee, Florida 32303 4149
The Issue The issues in this case are whether Respondent, a dentist, failed to maintain adequate records regarding his treatment of patient M.C. and/or provided M.C. dental care, including root canal therapy, that fell below minimum standards of performance, as Petitioner alleges; if so, whether (and what) disciplinary action should be taken as a result.
Findings Of Fact Introduction At all times relevant to this case, Respondent Steven Courten, D.D.S., was licensed to practice dentistry in the state of Florida. Petitioner Department of Health (the "Department") has regulatory jurisdiction over licensed dentists such as Dr. Courten. In particular, the Department is authorized to file and prosecute an administrative complaint against a dentist, as it has done in this instance, when a panel of the Board of Dentistry has found that probable cause exists to suspect that the dentist has committed a disciplinable offense. Here, the Department alleges that Dr. Courten committed two such offenses. In Count I of the Complaint, the Department charged Dr. Courten with the offense defined in section 466.028(1)(m), alleging that he failed to keep written dental records justifying the course of treatment of a patient named M.C. In Count II, Dr. Courten was charged with incompetence or negligence—again vis-à-vis M.C.—allegedly by failing to meet the minimum standards of performance in diagnosis and treatment when measured against generally prevailing peer performance, an offense under section 466.028(1)(x). The Material Historical Facts M.C. and Respondent have known each other personally since the 1960s, when they attending grade school together. In 1992, Respondent began providing dental services to M.C. Respondent performed dental services for M.C. during two time periods, from 1992-1995 and again from 2001-2009. The Complaint specifically limits the allegations against Respondent to the care and treatment provided to M.C. from April 30, 2005 through 2009. Respondent treated M.C. under a financial arrangement whereby Respondent would receive payment from M.C.'s dental insurance, when such coverage was available. Although M.C. had a co-pay obligation that varied over the years, Respondent would forgive the same. The primary, but uncharged, event giving rise to this case occurred on November 15, 2009. On that occasion, M.C. presented to Respondent and a dispute arose over tooth number 2, which was no longer in M.C.'s mouth and was composed of 18 karat gold. Respondent proposed a course of treatment to include re- cementing the same. M.C. expressed his desire to simply take possession of the tooth and Respondent refused. Thereafter, M.C. submitted a handwritten, unsigned complaint to the Department of Health alleging that Respondent was practicing dentistry out of his home, in unsanitary conditions, and in a manner that was below the standard of care. As part of the subsequent investigation, on or about January 21, 2010, a subpoena with an accompanying certificate of completeness of records was served on Respondent. In response, Respondent provided the Department with M.C.'s records and the executed certificate of completeness on or about February 8, 2010. A dispute exists between the parties regarding whether Respondent, in response to the subpoena and as attested by Respondent in the certificate of completeness, provided to the Department all of the records comprising M.C.'s chart. Respondent was not charged, however, with failing to make available to the Department copies of documents in the possession of Respondent which related to M.C., a separate disciplinable offense pursuant to section 466.028(1)(n). Therefore, he is not subject to discipline in this case for any shortcoming concerning said dispute. The Charges A thorough dissection of the instant Complaint is a required exercise in this case. Paragraph 5 provides that, "[t]he Respondent's continuing care from April 30, 2005 onward is the subject of this Amended Administrative Complaint." Consistent with that limitation, Paragraphs 6 through 9 allege that Respondent performed root canals and crownwork on October 15, 2005; January 15, 2009; and February 20, 2009, concerning teeth numbers 5, 7, and 20, respectively. Paragraph 20 alleges that Respondent did not use a rubber dam for isolation during the root canal treatments of teeth numbers 5, 7, and/or 20. Paragraph 24 alleges that Respondent did not obtain sufficient radiographs for evaluation of the root canal treatments of teeth numbers 5, 7, or 20. Paragraph 11 is interpreted by the undersigned as an attempt to allege that Respondent did not document radiographs or radiographic results in the written treatment record concerning teeth numbers 2 and 10 on the visit of November 15, 2009. The balance of the factual allegations contained within the Complaint under the headings of "Medical History," "Radiograph Sufficiency and Margin Evaluation," "Radiographic Examination Documentation," "Periodontal and Soft Tissue Care," and "Statements in the Alternative" fail to refer to a specific treatment, examination, date, or tooth. The undersigned has interpreted said allegations to apply exclusively to the course of treatment contained within the time limitation consistent with paragraph 5. As noted above, the charges against Respondent are set forth in the Complaint under two counts. In Count I, the Department accused Respondent of failing to keep adequate dental records, an offense disciplinable pursuant to section 466.028(1)(m). The Department alleged that, in the course of treating M.C., Respondent violated the recordkeeping requirements in six particulars, which are identified in paragraph 47, subparagraphs a) through f) of the Complaint. In Count II, the Department charged Respondent with dental malpractice, which is punishable under section 466.028(1)(x). Seven particulars of alleged incompetence or negligence in the treatment of M.C. are set forth in paragraph 51, subparagraphs a) through g). Several of the allegations in paragraphs 47 and 51 are parallel to one another, so that, when aligned side-by-side, they can be examined in logical pairs. Generally speaking, the Department's theory in relation to each allegation-pair can be expressed as follows: Where the circumstances required that the dental act "X" be done for M.C. to meet the minimum standards of performance as measured against generally prevailing peer performance, Respondent failed to do X, thereby violating the standard of care. Respondent also failed to record doing X in the patient's record, thereby violating the recordkeeping requirements. The parallel propositions comprising each allegation- pair are mutually exclusive. For example, if Respondent did not, in fact, do X, then he might be found to have violated the standard of care, if the Department were successful in proving, additionally, that, under the circumstances, X was required to be done to meet the minimum standards of performance. If Respondent did not do X, however, he obviously could not be disciplined for not recording in M.C.'s chart that he actually performed X. (If a dentist were to write in a patient's chart that he performed X when in fact he had not performed X, he would be making a false record; that would be a recordkeeping violation, but it is not the sort of misconduct with which the Department has charged Respondent.) Conversely, if Respondent in fact did X and failed to note in M.C.'s chart having done X, then—if the law required Respondent to document the performance of X—he would be guilty of a recordkeeping violation. The specific charges against Respondent are reproduced in the table below, which places the corresponding allegation- pairs side-by-side in separate rows. For ease of presentation, the undersigned has reordered the allegations to some extent. An empty cell denotes the absence of a corresponding allegation. The Department charges Respondent as follows: Count II, ¶ 51: Alleged Standard-of-Care Violations Count I, ¶ 47: Alleged Recordkeeping Violations 1 a) [F]ail[ing] to perform a comprehensive periodontal examination b) Respondent's notes do not include a comprehensive periodontal examination 2 b) [F]ail[ing] to perform sufficient, if any, soft tissue examination c) Respondent's notes do not include the results of a soft tissue examination 3 c) [F]ail[ing] to provide for, adequately document, and/or receive, informed consent for the multiple root canal treatments provided to Patient M.C. 4 d) [F]ail[ing] to use a rubber dam and/or provide adequate justification for not using a rubber dam 5 e) [F]ail[ing] to properly evaluate the obturation of his root canal treatments on one or more occasions 6 f) [F]ail[ing] to properly evaluate the margins of his crown placements 7 g) [F]ail[ing] to take adequate diagnostic comprehensive radiographs necessary to properly diagnose, treatment plan and/or perform the necessary treatments. treatment that was performed [F]ail[ing] to maintain labels or mounting for the radiographic records; [F]ail[ing] to document findings, interpretations, or diagnostic results of his radiographic examinations; [F]ail[ing] to take or maintain adequate diagnostic comprehensive radiographs necessary to justify the 8 a) Respondent's notes do not include an appropriate medical history Radiographs The Department presented the testimony of Thomas Shields, D.D.S., on issues relating to the standard of care and record keeping. Dr. Shields was shown to have formulated his opinions based upon the review of information provided him by the Department. Included within the Department's information was an envelope that contained 51 individual radiographs. The radiographs appeared to be originals that were not mounted, labeled, or dated. As a result, it was not possible for Dr. Shields to follow the treatment sequence provided by Respondent to M.C. Dr. Shields, in turn, opined that Respondent failed to meet the minimum standards for the profession of dentistry because 1) he could not discern evidence of full mouth radiographs; and 2) he could not discern that the radiographs were sufficient to adequately treat M.C. He further opined, based upon the loose radiographs received, that Respondent failed to meet standards for record-keeping because, although there are many radiographs, same are not described in the records. A pivotal dispute exists, however, concerning whether the radiographs used for the diagnosis and treatment of M.C., and the cardboard mounts in which they were originally placed, were provided by Respondent and/or received by the Department. Respondent credibly maintains that the subject radiographs were submitted to the Department on four cardboard mounts that included the dates of exposure, as well as minimal descriptions. Respondent further credibly avers that when the same were returned to him, after having been copied by a third- party copying service utilized by the Department, the mounts were absent and the order and sequencing of the radiographs were altered. The evidence presented with regard to the standard of care violations contained in paragraphs 51(e) and (g) and the record-keeping violations contained in paragraphs 47(d), (e), and (f) does not clearly and convincingly demonstrate that Respondent failed to 1) take radiographs to properly evaluate the obturation of M.C.'s root canal treatments; or 2) take adequate diagnostic comprehensive radiographs necessary to properly diagnose, treatment plan and/or perform the necessary treatments. The evidence further fails to prove clearly and convincingly that Respondent failed to 1) maintain labels or mounting for the radiographic records; 2) document findings, interpretations, or diagnostic results of his radiographic examinations; or 3) take or maintain adequate diagnostic comprehensive radiographs necessary to justify the treatment that was performed. Respondent is, therefore, not guilty of the charges as alleged in paragraphs 51(e) and (g) or paragraphs 47(d), (e), and (f). Comprehensive periodontal examination Dr. Shields, from review of the available records, opined that Respondent failed to perform a proper periodontal examination. The basis for this opinion is, again, exclusively premised upon the lack of documentation contained in M.C.'s medical chart. The evidence does not clearly and convincingly establish any minimum standards of performance that Respondent failed to meet, under the facts of this case, in examining or addressing M.C.'s periodontal condition. As a result, Respondent is not guilty of the standard-of-care violation alleged in paragraph 51(a). The evidence does, however, clearly and convincingly establish that Respondent failed to maintain the results of any such periodontal examination, and, therefore, Respondent is guilty of the record-keeping violation as set forth in paragraph 47(b). Soft tissue/oral pathology Dr. Shields, from review of the available records, opined that there was no evidence that Respondent performed a soft tissue or oral cancer examination. The basis for this opinion is, again, exclusively premised upon the lack of documentation contained in M.C.'s medical chart. The evidence does not clearly and convincingly establish any minimum standards of performance that Respondent failed to meet, under the facts of this case, in examining M.C. As a result, Respondent is not guilty of the standard-of-care violation alleged in paragraph 51(b). The evidence does, however, clearly and convincingly establish that Respondent failed to maintain the results of a soft tissue analysis and cancer screening. Indeed, Respondent conceded that while he performed a soft tissue analysis and conducted an oral cancer screening, he did not chart the results because there were no findings.3/ Accordingly, Respondent is guilty of the record-keeping violation as set forth in paragraph 47(c). Informed consent With regard to paragraph 51(c), the evidence is insufficient to prove clearly and convincingly that Respondent failed to provide for, adequately document, and/or receive, informed consent for the multiple root canal treatments provided to M.C. The patient, whose testimony was often disjointed, conceded that he was adequately informed of the root canal treatments: Q. Did Dr. Courten always explain what he was going to do and the procedure prior to the work with you? Did he sit down and explain to you what your problem was and how to correct it? * * * A. I understand. The way things went it wasn't an issue of what he was going to do as to how much time we had to do it. Are you comfortable with this? You know, these are our options, you know, for this one. The undersigned finds that Respondent provided sufficient informed consent to M.C. regarding the treatment provided. For that reason alone, Respondent is not guilty of this alleged standard-of-care violation. Further, the failure to obtain informed consent is a disciplinable offense under section 466.028(1)(o) and thus is not punishable under section 466.028(1)(x), which states the offense Respondent has been accused of committing. For this additional and independent reason, Respondent cannot be found guilty of the standard-of- care violation alleged in paragraph 51(c). Rubber dam utilization Dr. Shield opined that Respondent failed to meet the minimum standard of dental care in Respondent's failure to use a rubber dam when performing root canals on M.C. As Dr. Shield testified, a rubber dam has three functions: 1) to prevent any objects from entering the airway or being aspirated or swallowed; 2) to protect the tissue surrounding the subject tooth from the adverse materials used such as hypochlorite; and 3) to keep the operating field as sterile as possible. Dr. Shield testified that the utilization of a rubber dam is the minimal standard of care. Respondent conceded that a rubber dam is mandatory, is within the standard of care, and to be used whenever possible. Respondent testified, however, that in four or five instances he did not use a rubber dam, because in those particular instances, it was contra-indicated. He further testified that he used a rubber dam "probably, only, maybe two times, possibly, in the ten or so root canals because there were situations where the root was too small or the decay was too far sub-gingival." In the balance of occasions, Respondent employed an alternate aseptic protocol, called Isolite. Respondent's alternate aseptic protocol caveat to the standard of care—utilizing a rubber dam—is rejected and Dr. Shield's opinion is accepted. With regard to the standard-of-care allegation set forth in paragraph 51(d), the evidence is sufficient that Petitioner proved by clear and convincing evidence that Respondent failed to meet the minimum standard of dental care in failing to use a rubber dam when performing root canals on M.C. Appropriate medical history The Complaint alleges, in paragraph 47 (a), that Respondent's notes do not include an appropriate medical history. In support of this allegation, Petitioner avers that although a medical history was partially obtained in August 20, 1992 (outside the time limitation established by the Complaint), Respondent never updated the medical history. While a review of the chart reveals a limited initial medical history, from the perspective of the undersigned, the same is insufficient to establish a finding that it was not an "appropriate medical history." This conclusion is buttressed by the fact that no evidence was submitted, outside of the chart itself, to support Petitioner's position that it was inappropriate. Thus, Petitioner has not established by clear and convincing evidence the record keeping violation as stated in paragraph 47(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Dentistry enter a final order finding Respondent guilty of the record-keeping violations alleged in paragraphs 47(b) and (c) of the Complaint (failure to record periodontal, soft tissue, and oral pathology examinations) and the standard-of-care violation alleged in paragraph 51(d) of the Complaint (failure to utilize a rubber dam); finding Respondent not guilty of the remaining violations; and imposing the following penalties: issuance of a letter of concern; remedial education reasonably related to the topics of recordkeeping, endodontics, and ethics; and a fine of $2500.00. DONE AND ENTERED this 26th day of March, 2013, in Tallahassee, Leon County, Florida. S TODD P. RESAVAGE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2013.
The Issue The issue for consideration in this case is whether Petitioner should be granted an access permit free from the drainage permitting requirements of Chapter 14-86, Florida Administrative Code, or whether the terms and conditions proposed in the Notice of Intent to Issue should be required for project number 94-A-799-0019, located on the southwest corner of the intersection of U.S. Highway 19 and State Road 686 in Pinellas County, Florida.
Findings Of Fact At all times pertinent to the issues herein, the Department of Transportation has been the state agency responsible for the issuance of access connection permits for the access to and from property to the roads maintained by the State of Florida. It is also responsible for the promulgation and enforcement of rules governing the application for an issuance of drainage connection permits regarding those roads and properties. Petitioner, J. O. Stone, as Trustee of the J. O. Stone Revocable trust dated 9/26/78, owns and proposes to develop a parcel of property located on the southwest corner of the intersection of US Highway 19 and State Road 686, (East Bay Drive), in Pinellas County, Florida. The property in question is a piece of commercial land approximately six acres in area. In September 1994, Petitioner applied to the Department for an access management permit to allow proposed commercial establishments proposed to be built on that property to be connected to the state highway system. The development proposal called for construction of two restaurants and parking sufficient to support them. The property in issue was previously occupied by restaurants, a gasoline station and business facilities which had access to the abutting roads. Petitioner purchased the property more than twenty-five years ago and it is now vacant land. Petitioner did not seek a drainage connection permit at the time he requested the access management permit, and resists seeking one now because he believes the project in issue is exempt from the requirement for such a drainage connection permit. In fact, at the same time the Petitioner submitted his access connection permit request, he also submitted a formal request in writing to the Department requesting a confirmation of exemption from the drainage permit criteria under Chapter 14-86. The Department never acted on this secondary request until it included the requirement for a drainage permit as a condition of the access permit intent to issue. By virtue of its preparation of an intent to issue, with conditions, the Department, Petitioner claims, has indicated its intention to issue the requested access management permit conditioned upon the application for an approval of the drainage connection permit. There is some evidence that Petitioner’s staff was advised by Department officials that under the Department’s interpretation of the pertinent rules, the project does not meet all three criteria for exemption outlined in the pertinent rule, but at no time, according to Petitioner, was he ever given any specifics regarding how the Department considers the relevant criteria are not met by his proposal. The property is bordered on the east by the Department’s right-of-way for US Highway 19, and on the north by the right-of- way for State Road 686. On the west and south the property is bordered by a branch of Long Branch Creek Channel 2, which flows generally to the northeast to Highway 19, through a box culvert under that highway, and then, variably, southeast, east and northeast until it empties into Tampa Bay. The September 1994 application calls for the construction of three driveways from and to the property for restaurant development. Two of the driveways would connect with State Road 686, (the western access would be for right out traffic only and the eastern one would be for right in traffic only), and one would connect with U.S. Highway 19. This latter connection would be for both in and out traffic. Though the original application was accompanied by a request for an exemption from the requirement for a drainage connection permit, no mention was made regarding this ancillary issue during any of the parties’ negotiations and discussions until just before the issuance of the notice of intent. Consistent with his application for access management permit from the Department, Petitioner also sought required permits from other entities such as the Southwest Florida Water Management District, and Pinellas County. These permits have been granted. In November 1995, Petitioner received a letter from the Department which indicated that after review by its drainage staff, a determination was made that the proposed project was not exempt from the requirement for a drainage connection permit. This determination was made on the basis of the Department’s interpretation of the provisions of the pertinent rule that was different from that of the Petitioner. There appeared then, and appears now, to be no dispute regarding the underlying facts of the case. Chapter 14-86(1)(c), Florida Administrative Code, lists three criteria for granting an exemption, all of which must be met to permit the issuance of an exemption from the requirements for a drainage access permit. The first of these provides that no more than 5,000 feet of impervious area may drain to the property in the pre- developed condition. With a small exception, this property drains away from the Departments right-of-way, so Petitioner contends his project meets that criteria. The second prohibits any work within the right-of-way that will create or alter a drainage connection, and Petitioner contends that since the only work to be done within the right-of- way area is the installation of the three driveways, the project also meets that criteria as well. The third requirement is that the property be located in a watershed which has a positive outfall. Since this property is located in the Long Branch Creek basin, which outfalls to Tampa Bay and the Gulf of Mexico, Petitioner contends it meets that criteria as well, thereby qualifying the project for the exemption. A survey of the property made in 1995 indicated that with the minor exception of approximately 1,000 or so square feet of paved area in the extreme northeast corner of the parcel, which constitutes a portion of the State’s road construction, all of the natural drainage on the property is from the northeast to the southwest or west, directly away from the State’s right-of way. Planned near-term development of the parcel calls for the approximate northern half to be used for the construction of two restaurants and related parking. The two-way access onto the U.S. Highway 19 right-of-way is to be located at the southern end of the parking lots, approximately half way down the property. In the southern half of the property, more to the west, Petitioner proposed to construct a 12,000 square foot holding pond. Communications between Petitioner and the Department show that the Department understands that the property drains into the Long Branch creek Channel Two but has taken the position that the holding pond will also drain in the channel which ultimately, approximately 285 feet downstream from the drainage connection, crosses the state right-of-way and through the box culvert under U.S. Highway 19. The Department considers this a connection discharge which requires a permit, and Petitioner considers it to be a situation which qualifies for an exemption from the permitting requirements. This issue first became a matter for discussion between the parties in November 1995. By letter dated December 8, 1995, the Department advised Petitioner that the link-up described disqualifies the project from an exemption. A meeting of the parties was subsequently held in January 1996, at which Petitioner provided additional calculations and evidence of other similar situations where the agency did not require the drainage permit, but the Department remains adamant in its position. In February 1996, the Department wrote to Petitioner restating its position and demanding the project include a drainage connection permit. On March 5, 1996, the Department issued its Notice of Intent with the condition that the Petitioner obtain a drainage connection permit prior to the issuance of the access connection permit. Petitioner cannot accept this condition, contending that the requirement for the drainage connection permit would have an unacceptable impact on the project. Petitioner’s major objection to the requirement for a drainage connection permit is financially based. As was previously noted, the project as currently proposed by Petitioner would call for a 12,000 square foot holding pond. When the remainder of the property is developed according to plan, the holding pond will be increased to 18,000 square feet. However, under the criteria imposed by the Department for a drainage connection permit, the size of the holding pond to accommodate the proposed future development would require increase to 30,000 square feet, an increase of 12,000 square feet, (approximately ¼ acre), of prime commercial property which would not be available for productive development. No figures were provided to place a dollar value on that impact at current or future rates. The Department’s concerns which form the basis for the drainage connection permit requirement relate to protection of the state right-of-way and both downstream and upstream property owners from flooding due to excessive run-off. Petitioner argues that the Water Management District permitting criteria regarding run-off consider the situations most likely to occur. The Department admits that Petitioner has met the requirements of the Southwest Florida Water Management District, but notes that Department criteria are substantially different and are more stringent. Many more scenarios are considered by the Department than by the Water Management District. The Department contends that while in the instant case the connection is not directly to the right-of-way, it nonetheless drains to a right-of-way, and the potential for flooding at the Department’s right-of-way, as the result of drainage from the property in question in the event of a major storm, justifies the permit requirements. Mr. Radcliffe, a registered civil engineer employed by Petitioner’s engineering design company, disputes the Department’s concerns, asserting that the water flow increase in Long Branch Creek Channel Two at the box culvert under US Highway 19 from this project would peak well before the major flow from run-off upstream from the connection would get there. In his opinion, there is little chance that the instant project would have any impact on run-off to the state right-of-way. Therefore, little benefit would be obtained from applying the more stringent state requirement as opposed to the more liberal water management district criteria. Mr. Lopez-Paniagua claims that Petitioner does not meet criteria number one, as outlined in Rule 14-86.003(1), Florida Administrative Code, because the project has about 12,000 square feet of impervious area. Petitioner, he asserts, has not proven to the Department’s satisfaction that its drainage meets the criteria. Here, the project drains to a ditch at a point which is approximately 285 feet from the right-of-way for U.S. 19. It is Department policy to always review projects for drainage permit requirements, which projects are exempted if the review shows the project will not adversely affect the state highway system or the downstream property owners. Here, the Department contends, no such showing has been made.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Transportation enter a Final Order denying Petitioner’s request for an exemption from the drainage connection permitting requirements of Chapter 14-86, Florida Administrative Code. DONE and ENTERED this 30th day of January, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 30th day of January, 1997. COPIES FURNISHED: Francine M. Ffolkes, Esquire Department of Transportation Haydon Burns Building 605 Suwannee Street, MS-58 Tallahassee, Florida 32399-0458 Charles F. Barber, Esquire Alford, Barber & Mariani 1550 South Highland Avenue Clearwater, Florida 34614 Michael A. Hanson, Esquire 1207 North Himes Avenue Tampa, Florida 33607 Ben G. Watts, Secretary Attention: Diedre Grubbs, M.S. 58 Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Pamela Leslie General Counsel Department of Transportation 562 Haydon Burns Building 605 Suwannee Street, Suite 562 Tallahassee, Florida 32399-0450
The Issue Whether the Respondent, the Department of Environmental Regulation (DER), should deny the Petitioner's application for a Class C drinking water treatment plant operator certificate based on the Petitioner's alleged cheating on the examination.
Findings Of Fact The Respondent, the Department of Environmental Regulation (DER), previously determined that the Petitioner, Ralph Sanchious (Sanchious), was eligible for certification as a Class C Water Treatment Operator, subject only to successful completion of DER's examination. Sanchious sat for the November 2, 1989, examination administered at the Polk Correctional Institution (PCI) in Polk City, Florida. Although the examination notice that had been mailed to Sanchious, as well as to the other examinees, stated that examinees were not allowed to have "[a]ny other papers or notes . . . in the examination room," Sanchious brought his examination notice itself and the envelope it came in. At least one other examinee did the same. During the examination, which was multiple choice, Sanchious copied the question numbers on the envelope and marked next to each question number the letter signifying the choice he had made as his answer. He did not try to hide what he was doing. He did it openly right in front of the examination proctor, Henry P. Ziegler, Jr. Sanchious intended to take the record of his exam answers with him when he left the examination to help him pass a reexamination, if he did not pass the November 2, 1989 exam. Since examinees must give the examination booklet containing the multiple choice questions to the proctor at the end of the examination, it is not clear how a record of his answers would help him pass a reexamination unless Sanchious knew or believed he could learn when the same examination would be re-administered. It must be inferred that Sanchious knew or believed he could learn when the same examination would be re-administered, although it is not clear how he knew or why he believed he could learn this. Ralph Nichols, the instructor who taught the course that prepared Sanchious to take the examination, did not know or believe he could learn when the same examination would be repeated unchanged, and he did not think any of the examinees knew or could learn this. Neither the DER rules, the written examination notice, nor the oral instructions of the examination proctor advised Sanchious or the other examinees that he was not permitted to record his answers or take the record of his answers with him when he left the exam. Sanchious did not think what he was doing was wrong, was cheating or was in violation of any rules or regulations of either the DER, PCI or any test-taking "conventions." If he did, he would have tried to hide what he was doing from the proctor. At the end of the examination, Ziegler, the proctor, collected the examination answer sheets, test booklets and scratch paper, if any, from all examinees. Normally, Ziegler would return the answer sheet and exam booklet to the testing agency and destroy the scratch papers to maintain test security. But he confiscated Sanchious' answer sheet, examination booklet and materials, including the record of his answers that he had made on the envelope, and asked Sanchious what was on the envelope. Sanchious answered truthfully and told Ziegler what he planned to do with his record of the answers. Ziegler, an accepted expert in proctoring examinations, understood from examination "conventions" he had learned as an examination proctor that it is a breach of examination security, and therefore forbidden for proctors to allow, an examinee to record examination answers and leave the examination site with them. Ziegler conferred with Barbara Jacobs, PCI Educational Program Manager, to ask her what she thought should be done. Jacobs then told Sanchious he would not be permitted to remove the envelope on which he had recorded his answers. Sanchious replied with words to effect "fine, I already finished the examination, and all my answers are on the answer sheets." Ziegler, Jacobs and Nichols conferred further to decide whether what Sanchious had done was "cheating." They decided it was and declined to forward Sanchious' answer sheet to DER. Ziegler's letter to DER explained that he and Jacobs "deem taking out answers to these tests to be a serious breach of test security, since it is possible that Sanchious might have wanted to sell the answers to other inmates on his compound. We are both sure that you would not want Sanchious to do this, so we have withdrawn his answer sheets from the rest of the test takers' sheets and are not forwarding Sanchious' answer sheet to you for scoring. We trust you agree with our decision to not allow this inmate's test to be scored due to what we firmly believe was an unacceptable breach of security of your tests on the part of Sanchious." Although the DER did not respond to Ziegler's letter, it denied his application certification because it did not consider Sanchious to have passed the exam. Sanchious' answer sheets remain in the possession of Barbara Jacobs at PCI. DER authorizes the use of scratch paper in their certification examinations. DER has no rules or written notification of any kind that examinees may not record their answers on scratch paper during the examination. In fact, DER now encourages examinees to keep track of where they are on the examination by marking the examination booklet; and marking the answers on the booklet, as well as the answer sheet, would be one acceptable way of keeping track. It is understood that the examination proctor will collect the exam booklets and all scratch paper. DER always has allowed examinees other than prison inmates, and now allows all examinees, to review their scored examination answer sheets and the examination booklet to verify any incorrect answers. Persons choosing such a review are not permitted to take notes of the correct answers with them after the review. On two occasions, DER has discovered that an examinee smuggled "crib sheets" (summary notes of substantive information that probably would assist an examinee) into the exam site. Once, the proctor caught the examinee; the other time, it could not be determined who had smuggled the "crib sheets." Once DER received anonymous information that an individual in Orlando regularly was obtaining a list of what purported to be the actual answers to questions and was furnishing the list to certain examinees as a favor. This information has not resulted in any findings, and it is not clear how the individual would have obtained a written list of correct answers to the questions on a particular examination. On the most recent examination in Jacksonville, DER caught an examinee smuggling into the examination a list of the actual answers to the questions. Again, it is not clear how the answers were obtained. None of these incidents involved an examination at PCI, and none involved an examinee recording his own answers to exam questions on a separate piece of paper with intent to leave with the record of the answers after the examination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Respondent, the Department of Environmental Regulation, enter a final order that the Petitioner's answers to the November 2, 1989, Class C Water Treatment examination be scored and, if the Petitioner scored a passing grade, that the Petitioner be certified as a Class C Water Treatment Plant Operator. RECOMMENDED this 7th day of March, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 March, 1990. APPENDIX TO RECOMMENDED ORDER, CASE NO. 89-7002 To comply with the requirements of Section 120.59(2), Florida Statutes (1989), the following rulings are made on the Respondent's proposed findings of fact (the Petitioner not having filed any): 1.-3. Accepted and incorporated to the extent not subordinate or unnecessary. Rejected as not proven by the evidence. Ziegler first conferred with Nichols before deciding that Sanchious had "cheated." Otherwise, accepted and incorporated. Rejected as not proven by the evidence. It was not proven whether Sanchious knew or could learn when the same examination would be re- administered, knowledge that would be indispensable to the use of Sanchious' exam answers to cheat on a subsequent examination. Otherwise, accepted and incorporated. 6.-10. Accepted and incorporated to the extent not subordinate or unnecessary. 11. First sentence, accepted and incorporated to the extent not subordinate or unnecessary; second sentence, see 5., above. 12.-13. Accepted and incorporated to the extent not subordinate or unnecessary. 14. Rejected as not proven by the evidence. First, Setchfield agreed that whether Sanchious or someone else knew or could learn when the same examination would be re-administered would be indispensable to the future use of his exam answers to improve one's odds of choosing or guessing correct answers. Second, she testified that she could not answer the "philosophical" question whether the "cheating" she described would have occurred when Sanchious recorded and removed the answers with the intent to try to use them to improve his odds of choosing or guessing correct answers on a future exam or when he actually used the information on a future examination. COPIES FURNISHED: Ralph Sanchious (W-44) Polk Correctional Institution 3876 Evans Road, Box 50 Polk City, Florida 33868 Cynthia K. Christen, Esquire Department of Environmental Regulation 2600 Blair Stone Road Tallahassee, Florida 32399-2400 Dale H. Twachtmann, Secretary Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 Daniel H. Thompson General Counsel Department of Environmental Regulation Twin Towers Office Building 2600 Blair Stone Road Tallahassee, FL 32399-2400 =================================================================
