Findings Of Fact On or about December 16, 1985, Petitioners submitted an application requesting qualifications in five major classes of work and two incidental classes of work. At the hearing, qualification in cement paving was not pursued. The Department denied the applications for qualification to bid on contracts for Minor Bridges, Portland Cement Concrete, Hot Plant-mixed Bituminous Base and Surface courses, and the two incidental classes of fencing and grassing, seeding and sodding. Petitioner here contests the Minor Bridge, Hot Plant-mixed Bituminous Base and Surface courses and the two miscellaneous categories. Superior Paving has been in the road building business for many years and the sole basis for denying qualification for Hot Plant-mixed Bituminous Base and Surface courses is that Superior does not own an asphalt plant. During the years Petitioner has worked in road construction for DOT its work has been satisfactory, contracts have been completed on time, and there has been no default. Petitioner has the financial ability to perform the work for which qualification is requested and has experienced personnel necessary for this work. With respect to construction work on minor bridges, Petitioner's general manager and superintendent both have extensive experience in this work area. During the past two years, Petitioner has done no work on DOT projects as the result of a two year suspension for a contract crime. Prior thereto on DOT construction involving minor bridge work in which Superior was the prime contractor, this work was subcontracted out to a contractor specializing in bridge construction. However, Superior has the resources to obtain all equipment needed for minor bridge work. Also Petitioner has been the successful bidder on jobs involving fencing as well as grassing, seeding and sodding. Petitioner has used this type work to meet its quota for subcontracting at least ten percent of the job to minority and female subcontractors. On one occasion when the sodding subcontractor failed to complete the project, Petitioner used its own personnel and equipment to do so. Petitioner's request for qualification for these incidental classes was denied because its application failed to show that the company accomplished fencing, grassing, seeding and sodding with its own forces and equipment. (Exhibit 14.) Most of the evidence submitted in these proceedings involved the denial of qualification for the type work that has been Petitioner's primary category for many years, viz. asphalt paving. The sole reason for denying Petitioner qualification in this class of work is that Petitioner does not have its own asphalt plant (Exhibit 14.) This requirement imposed by Respondent is a recent one which was placed into effect in 1985 following the amendment to Rule 14- 22.03 F.A.C. That amendment added "and the adequacy of equipment to perform the specific classes of work." At the time this change to the rule was made DOT was applying the policy of requiring a contractor to own an asphalt plant in order to qualify for this work class. When asked why this unwritten policy was not included in the rule when amended in 1985, the witnesses involved in incorporating the change involving equipment into the rule replied he could not answer that. The policy of DOT that in order to qualify for asphalt paving the bidder must own an asphalt plant has general applicability and has been applied during the past year to all contractors bidding on DOT road projects. DOT personnel who testified in these proceedings stated the purpose of adding the phrase regarding having the necessary equipment to the requirement for qualification, was to bring the rule more in line with the statutory provisions. The adverse publicity DOT received in recent years because of contractor delays in completing projects and deficiencies in some of the work performed resulted in the tightening of the requirements for qualification. Two contractors in particular were late in completing contracts on which they were successful bidders and part of the delay was due to their inability to get the necessary road paving material. However, both of these contractors owned asphalt plants. One had delays in getting a permit from the Department of Environmental Regulation to erect a plant near Destin, Florida, and the other had a falling out with his supplier and could not get the required material. In neither of these cases did the ownership of an asphalt plant alleviate the problem. No evidence was presented showing that a delay in the completion of a project was due solely to the failure of the contractor to have his own asphalt plant. Several asphalt producers submitted letters to the effect that they had supplied paving material to Petitioner for many years and would continue to supply him as much as he would buy. One plant owner testified that he had been in the production and laying of asphalt pavement for many years and much preferred to have the role only of supplier. He also testified that most producers felt the same way. There is no policy or rule requiring contractors who bid on jobs requiring the use of road aggregates to have their own rock quarry in order to qualify for this work class. Petitioner has the necessary equipment to transport mix from the plant to the job site and to install the mix at the job site. Hot Plant-mixed Bituminous Base and Surface courses can be successfully trucked approximately 60 miles from the plant. Accordingly, under DOT's policy, a successful bidder will frequently have to erect an asphalt plant near the job site. This will require him to obtain permits and negotiate the environmental problems associated therewith. The effect of not being qualified for Minor Bridge and Hot Plant-mixed Bituminous classes is that Petitioner is not qualified to bid as a prime contractor when one or more of these classes, in the aggregate, comprises fifty percent or more of the work.
Findings Of Fact Petitioner is the governmental agency responsible for issuing licenses to practice dentistry and for regulating such licensees on behalf of the state. Respondent practices general dentistry under license number DN 0002494. Background Mr. Hubert Anderson is a 70-year-old male (the "patient"). The patient initially saw Respondent in September, 1989, for replacement of a three-unit gold bridge that had been seated many years earlier. The patient did not experience any pain from the old bridge. However, the old bridge had to be replaced because tooth #8 had abscessed and needed to be removed. On October 30, 1989, Respondent constructed and installed a porcelain- fused-to-metal bridge. The bridge is a six unit, anterior, fixed bridge for teeth numbers 6-11. The pontics of the bridge are located in the space formerly occupied by the patient's two anterior teeth, numbers 8 and 9. The two crowned teeth on either side of the pontics, numbers 6,7, and 10,11, form the abutments in the bridge that hold the pontics in place. 2/ Respondent built up tooth number 10 with dissolvable dental cement. A non-dissolvable material should have been used to build up tooth number 10. The patient experienced generalized pain and soreness in the mouth immediately upon installation of the bridge by Respondent. The patient returned to Respondent's office approximately one month later complaining that everything hurt. Respondent told the patient that nothing was wrong. However, Respondent offered to replace the bridge if the patient would have root canals done on all four abutments. 3/ Respondent did not confirm his diagnosis with x-rays. Open margins caused by an ill fitting bridge can cause symptoms similar to those associated with the need for root canals including: sensitivity to hot and cold; sensitivity upon chewing or eating sweet, sour, or salty food; and generalized aching. Open Margins The pain experienced by the patient was caused by the ill fitting bridge constructed and installed by Respondent. The substructure of the bridge was so ill fitting that the entire bridge needed to be replaced in 1991. 4/ None of the bridge margins fit well around the abutment teeth. 5/ Tooth number 6 has grossly open distal and mesial margins. Tooth numbers 7 and 10 have grossly open distal, mesial, and facial margins. Tooth number 11 is sensitive to percussion and has open margins circumferentially. 6/ The open margins in the bridge constructed and installed by Respondent jeopardize the patient's health. The open margins present areas where bacteria and food debris can collect and lead to decay or plaque. Open margins also expose nerve endings in dentin and cause discomfort. 7/ Other Causes Excluded The open margins in the bridge constructed and installed by Respondent are not caused by decay. A porcelain-fused-to- metal bridge with properly adapted margins at the time the bridge is seated in the patient's mouth will not exhibit open margins over a short period of time unless there is recurrent decay which erodes the teeth away from the bridge margin. The patient does not exhibit recurrent decay. The patient's decay resistance is evidenced by his age and lack of fillings or cavities in his teeth. The absence of recurrent decay was documented in two separate dental examinations. 8/ The open margins in the bridge constructed and installed by Respondent are not caused by gum recision. The patient has no periodontal problems, including periodontal problems in the area where the bridge is located. 9/ The open margins in the bridge constructed and installed by Respondent are not caused by normal wear and tear. The open margins on a porcelain-fused- to-metal bridge do not expand under normal wear and tear. Even if expansion were to occur as a result of normal wear and tear, the expansion would be slight and would occur over a period of 10 to 15 years. The margins in the bridge installed by Respondent are gross margins that were present when the bridge was installed. They were documented by examination within two years of the date of installation. The open margins in the bridge constructed and installed by Respondent are not caused by expansion of the metal in the porcelain-fused-to-metal bridge. If the bridge margins were closed at the time the bridge was initially seated, and then later opened due to expansion of the underlying metal, the porcelain veneer on all of the abutments would have fractured. The porcelain on the patient's abutments is intact. 10/ Negligence And Incompetence Respondent is incompetent and negligent within the meaning of Section 466.028(1)(y). Open margins in the patient's bridge are the result of Respondent's failure to meet the minimum standards of performance in installing the patient's bridge. 11/ Prior to permanently cementing a bridge to a patient's mouth, a dentist should "try-in" the bridge, checking all margins, contacts, and occlusion by clinical examination and x- ray. Respondent failed to meet the minimum standards of performance for dentists by failing to detect the open margins at the time of the try-in and by failing to remake the bridge by retaking the impression and sending it back to the laboratory for re-fabrication. The patient complained of pain on at least two separate occasions. Respondent's failure to use x-rays to determine the cause of the patient's complaints of pain failed to meet the minimum standards of performance for dentists. All crown and bridge margins should end on sound tooth structure. The bridge installed by Respondent is short and does not finish on sound tooth structure. The failure to finish on sound tooth structure fails to meet the minimum standards of performance for dentists. The margin on tooth number 10 ends on the build-up of cement and not on sound tooth structure. The failure to finish the bridge on non-dissolvable material fails to meet the minimum standards of performance for dentists. Respondent failed to detect open margins when initially fitting the bridge on the patient and upon two subsequent examinations. Respondent diagnosed the patient as needing root canals without verifying the diagnosis with x-rays. Respondent failed to determine the cause of the patient's pain on two separate examinations including the failure to use x-rays for diagnostic purposes.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a Final Order finding Respondent guilty of violating Section 466.028(1)(y), reprimanding Respondent, imposing a fine of $3,000, and placing Respondent on probation for one year pursuant to the terms of probation prescribed in Petitioner's PRO. RECOMMENDED this 18th day of July, 1995, in Tallahassee, Florida. DANIEL S. MANRY 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 18th day of July 1995.
The Issue The issue for determination is whether Respondent, Ralph Toombs, committed violations of Chapter 466, F.S., with regard to two dental patients, as alleged in two Administrative Complaints. If the violations are found, some disciplinary action must be recommended.
Findings Of Fact Ralph E. Toombs, D.D.S., is and at all relevant times has been licensed as a dentist in the State of Florida having been issued license number DN 0007026. At all times relevant to the allegations of the two complaints, Dr. Toombs practiced general dentistry in West Palm Beach, Florida, under the group which he owned, the Florida Dental Group. He has since left the West Palm Beach area, and resides in St. Cloud, Osceola County, Florida. In March 1984, patient A.K. was referred to Dr. Toombs for a problem with the joint in her jaw, the temporal mandibular joint (TMJ). She was given a mouth brace, but lost it. She also obtained general dentistry services. After she lost the mouth brace, she moved into orthodontic treatment by an orthodontist, Edward Sheinis, D.D.S., who was employed by the Florida Dental Group. This treatment, including the fitting and adjustment of braces, lasted about a year, until May 1985. At that time Dr. Sheinis left the group and opened his own office in Coral Springs, Florida. When he left, Dr. Sheinis informed his orthodontic patients where he was going. Under his contract with the Florida Dental Group, the patients and their records belonged to the group. His contract expired on May 31, 1985, but Dr. Toombs asked him to leave the day before his final day for treating patients. Dr. Sheinis felt that Dr. Toombs had the idea that he was trying to take patients away. After Dr. Sheinis left, no orthodontist replacement joined the group. Dr. Toombs' office continued making appointments for A.K. and she was treated by him in June, July and August. A. K.'s insurance company had paid for her orthodontic treatment plan in advance. She did not ask for return of the money, but neither was it offered. She did not want to travel to Dr. Sheinis' new office and she also felt that she had already paid the group for the services. She anticipated that a new orthodontist would be hired. Dr. Toombs claimed that the orthodontic patients were given the choice of going with Dr. Sheinis, being referred to another orthodontist, or staying with the group until another orthodontist was found. He claims that in some cases, money was refunded to patients who sought treatment elsewhere. He does not make those claims specifically with regard to A. K. and her testimony that the options and possibility of refund were never discussed with her is credible, consistent, and convincing. The orthodontic treatment rendered by Dr. Toombs to A. K. in June, July and August 1985, was primarily for maintenance, rather than to advance her treatment plan. Ligatures were replaced or re-tied and some parts of the appliances were repaired. A new scheme of elastics was developed in the August appointment, which could have advanced her treatment, but was also only intended for maintenance, according to Dr. Toombs. A September appointment was made, but was cancelled by Dr. Toombs' office and another appointment for October was made. That appointment was also cancelled by Dr. Toombs' office. By September or October the Florida Dental Group was in bankruptcy; the office was closed down and the patient files were in the hands of a trustee. Some records are still inaccessible. A. K. attempted to contact the office, but there was no answer. She heard from a friend that Dr. Toombs had left. She called the American Dental Association and was told they did not know his whereabouts. She then returned for treatment to the dentist who had originally referred her for the TMJ treatment, David Feuer, D.D.S., an orthodontist. A primary purpose of orthodontic treatment is tooth movement. If a patient's treatment is simply maintained, but not advanced for two months, there may not be harm, but minimum acceptable standards of dental practice require that the patient be referred promptly when the treating dentist cannot continue the appropriate treatment plan. The evidence does not clearly establish Dr. Toombs's lack of competence to appropriately continue A. K.'s orthodontic treatment. Therefore, when Dr. Sheinis left, he had the choice of making a referral and transferring the payment, or pursuing the treatment himself. He did neither. By his own admission, in a response to DPR investigator, Charlene Willoughby (Petitioner's Exhibit #7-AK) Dr. Toombs did nothing more than maintain A. K. orthodontically, by changing ligature ties. His attempt at hearing to explain that course as necessary to undo substandard work by Dr. Shienis is unsupported by any competent evidence. Patient S.C. Between approximately February 1984, and October 1985, Ralph Toombs provided dental services to patient, S.C. Those services included, among others not pertinent to this proceeding, the fabrication, fitting, and delivery of a maxillary bridge and lower partial denture. In lay terms, this involved basic full mouth reconstruction. At the time that S.C. began seeing Dr. Toombs he had already had bridge work beginning in 1970. He first saw Dr. Toombs on an emergency basis when he had fractured part of that work. When reconstruction is done, it is necessary to provide a structure to support the bridge, where the existing teeth are incapable of that support on their own. Two methods of support are a post and core, and pins. Pins are used when there is more existing structure; they are screwed into a tooth. The post and core is used generally when teeth have been endodontically treated (root canal therapy). The post is inserted through the central canal area into the tooth. The post provides more stability. A tooth that has been treated endodontically is devitalized, dry and fragile. The use of pins in such teeth is likely to cause crazing (small multiple cracks) or fractures; the support is weakened, and either it fails or causes failure in another site in the structure. In S.C.'s reconstruction, Dr. Toombs extensively used pins in devitalized teeth, in some instances as many as four or five pins in a single tooth. Dr. Toombs installed a bridge, but it cracked, and he replaced it. Later, shortly after Dr. Toombs closed his office in September or October 1985, S.C. returned to his prior dentist, Steven E. Kiltau, DDS, with a complaint that the porcelain had fractured and that his lower bridge work kept falling out. Dr. Kiltau found the bridge work loose and fractured. There were also bulky margins and open margins, or spaces between the original tooth and the crown, allowing the accumulation of food debris. Dr. Kiltau also suspected that some of the pins had perforated the sides of the teeth. Dr. Kiltau and other dentists who treated S.C., both before and after Dr. Toombs, as well as experts retained by Petitioner, attributed the failure of the structure provided by Dr. Toombs to his inappropriate use of pins. The testimony of these witnesses established uneqivocally that this aspect of the treatment violated minimum standards of performance. Petitioner did not, however, establish that the bulky and open margins were caused by Dr. Toombs' negligence. Some evidence of decay was apparent in S.C.'s teeth and the witnesses were reluctant to conclude that this was the result, and not the cause of the margins.
Recommendation Based on the foregoing, it s hereby RECOMMENDED: That the Board of Dentistry enter a final order, finding Respondent guilty of violations of Sections 466.028(1)(u) and (y), F.S., assessing an administrative fine of $3,000.00, and placing Respondent on probation for two years, with the requirement that he also attend such continuing education courses as the Board finds appropriate. Although this recommended penalty is less than that suggested by counsel for Petitioner, it is still within the guidelines of the Board in Rule 21G-13.005, F.A.C. DONE and ORDERED this 23rd day of August, 1989, in Tallahassee, Leon County, Florida. MARY CLARK Hearing Officer Division of Administrative Hearings 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1989. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner, as to A. K. Rejected as unnecessary. Adopted in Paragraph 1. Adopted in Paragraph 3. and 4. Adopted in Paragraph 6. Adopted in Paragraphs 6 and 7. 7 through 10. Rejected as statements of testimony, rather than findings of fact. 11. Adopted in Paragraph 6. 13. through 15. Rejected as statements of testimony rather than findings of fact. Respondent, as to A. K. Rejected as unnecessary. Adopted in Paragraph 1. Adopted in Paragraph 3. and 4. Rejected as inconsistent with the weight of the evidence. Her continuation was not entirely voluntary; she had paid for the treatment and was not given an alternative. Rejected as unsupported by credible evidence. Rejected as contrary to the evidence. Adopted in Paragraph 5. Rejected as contrary to the weight of evidence. through 15. Rejected as immaterial. Petitioner, as to S. C. Rejected as unnecessary. Adopted in Paragraph 1. Adopted in Paragraph 10, except that, according to the record, S.C.'s and treatment by Dr. Toombs began in 1984. Adopted in Paragraph 13. through 11. Rejected as statement of testimony, rather than findings of fact. Rejected as immaterial. Other competent evidence established the existence of decay. and 14. Rejected as statements of testimony. Adopted in Paragraph 13. Rejected as a statement of testimony. through 22. Rejected as unnecessary or a statement of testimony. The margins were proven; their cause was not proven. Respondent, as to S. C. Rejected as unnecessary. Adopted in Paragraph 1. and 4. Adopted in Paragraph 10, except the record establishes that treatment commenced in 1984. 5. through 8. Rejected as unnecessary or immaterial. Rejected to the extent that the finding implies that failure was not due to Respondent's negligence. Adopted in Paragraph 14. through 19. Rejected as unnecessary. 20. Rejected as contrary to the weight of the evidence. COPIES FURNISHED: John Namey, Esquire Department of Professional Regulation 1520 East Livington Street Orlando, Florida 32803 Ronald M. Hand, Esquire 241 East Ruby Avenue Waterfront Square, Suite A Kissimmee, Florida 32741 William Buckhalt Executive Director Dept. of Professional Regulation Board of Dentistry 1940 N. Monroe St., Suite 60 Tallahassee, Florida 32399-0792 Kenneth E. Easley General Counsel Dept. of Professional Regulation 1940 N. Monroe St., Suite 60 Tallahassee, Florida 32399-0792
Findings Of Fact This cause comes on for consideration based on the Petitioners' challenge to the Respondent's State of Florida, Department of Environmental Regulation's stated intent to issue a permit to the applicant, Atlantic Bancorporation under the authority of Chapters 253 and 403, F.S., and Public Law 92-500. The Respondent Atlantic Bancorporation filed an application for a permit with the Respondent State of Florida, Department of Environmental Regulation. There were four items found in the application, being: The construction of a 256 foot long by 5 foot wide dock, together with a 30 foot long by 14 foot wide boat ramp. Six storm sewers using 15" pipe with headwalls. An access road to the boat ramp of 425 feet in length, constructed of limerock. Crossing of a stream with sanitary sewer. The details of the written application may be found in the Respondent, Atlantic Bancorporation's Exhibit #1, admitted into evidence. The only aspects of the permit application which the Petitioners are challenging pertain to the proposed dock, boat ramp and access road to those facilities. On May 3, 1977, Mr. C. E. Barber, an inspector with the Department of Environmental Regulation met with Daniel Thatcher, the President of General Shelter Corporation, which corporation was the agent of Atlantic Bancorporation on that date. (Subsequent to the time of the application General Shelter Corporation has become the owner of the land and Atlantic Bancorporation is the first mortgagee on the land.) The meeting on May 3, 1977 took place at the site of the proposed boat dock, boat ramp and access road. The meeting was for purposes of pre-application inspection, as a preliminary step toward filing the application for permit. During the course of this meeting, Mr. Barber looked around the general area and talked to Thatcher about the underlying scope of the project and the items which would be considered in the permit process. This conversation and inspection took place over a period of 45 minutes. Subsequent to this meeting and conversation, the application for permit was filed on May 9, 1977 over the signature of Daniel Thatcher. Inspector Barber determined that the nature of the project was such that a short form investigation could be utilized in keeping with the requirements of Chapter 403, F.S. He returned to the area of the project on June 7, 1977 and spent two hours inspecting the area. He went to his office and wrote a report on the question of granting the permit. This report is entitled Permit Application Appraisal and may be found as Respondent's Department of Environmental Regulation's Exhibit #1, admitted into evidence. His recommendation was that the permit be granted upon condition that silt screens be used in the course of the construction phase of the project to combat turbidity in the literal zone, an area of the creek In which the dock and boat ramp are being placed. Mr. Barber's supervisor David Scott, who was an Environmental Specialist III, at the time of the application, approved the recommendation that the permit be granted. This approval of Mr. Barber's position was upon condition that the silt screens be employed in the construction phase. Additionally, the State of Florida, Department of Natural Resources and local water management district were made aware of the pending application of the Respondent Atlantic Bancorporation. Neither of these agencies offered any comment or disagreement to the intention to grant the permit. The Petitioners were notified of the position of the State of Florida, Department of Environmental Regulation's intention to issue the permit requested by Atlantic Bancorporation, in the form of letters addressed to the Petitioners. Copies of those letters may be found as Respondent, Department of Environmental Regulation's Composite Exhibit #2, admitted into evidence. The substance of these letters is the same in that the letters state that the Department of Environmental Regulation has been given reasonable assurances by the applicant that the short term and long term effects of the proposed activity will not result in violation of water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. Nor, will the proposed activity interfere with the conservation of fish, marine and wildlife or other natural resources to such an extent as to be contrary to the public interest. Finally, the letter also states that the proposed project will not create a navigational hazard, or serious impediment to navigation, or substantially alter or impede the natural flow of waters, so as to be contrary to the public interest. In trying to establish a position contrary to that of the Respondent, State of Florida, Department of Environmental Regulation, Petitioners offered the testimony of one of the Petitioners Thomas T. Elmore, Jr. and a Mr. Lamar Veal. The substance of their testimony indicated that there was a large number and variety of fish, marine and wildlife to include: osprey, hawks, blue and white herring, water turkey, ducks, coots, cranes, geese, egrets, woodpeckers, and various other small birds. The type of fish spoken of were bass and sunfish. They also indicated that alligators, manatee, and shrimp may be found in the vicinity of the project. Specific reference was made to one manatee that had been observed in the area which appeared to have been scarred by propellers of boats. Reference was also made to an alligator that had been killed, apparently by propellers of boats. Considering the damage done to the manatee, it is unclear where the damage occurred, because the area in question, which is known as Doctors Lake is a tributary to the St. Johns River, a body of water of considerable dimension. On the other hand Doctors Lake is one to one and a half miles wide and five miles long. These same witness, to wit: Elmore and Veal, testified about grass beds at various places in the area of Doctors Lake. Photographs offered as exhibits by the Petitioners demonstration that some of these grasses were found in the vicinity of the location for the boat ramp and dock, but there was no testimony that these grasses would be unduly disturbed. Testimony by Mr. Veal indicated that Doctors Lake does not "flush" very readily. Their testimony established that there are a number of homes located on Doctors Lake and that there is some motor boat activity and that oil and gas spills from boats occur in the lake. Finally, the testimony established that the power boats that pass by have some effect, which measurement was not known, on the erosion of the shore, particularly in the areas that lack grass vegetation. The area where the permit is requested is not one lacking in grass vegetation at the shoreline. After examining the sum and substance of the testimony offered in behalf of the Petitioners, they have failed to establish that the granting of the permit and subsequent construction under the permit, violates water quality criteria, standards, requirements and provisions of Chapter 17-3, Florida Administrative Code. Nor, have they established that the proposed activity will interfere with the conservation of fish, marine and wildlife or other natural resources, to such an extent as to be contrary to the public interest. Moreover, the Petitioners have failed to show that the proposed project will create a navigational hazard, or a serious impediment to navigation, or substantially alter, or impede the natural flow of navigable waters so as to be contrary to the public interest. Therefore, the Petitioners have failed to show any reason why the permit as applied for should not be granted by the Respondent, State of Florida, Department of Environmental Regulation.
Recommendation It is recommended that the permit application filed by Atlantic Bancorporation, which is the subject of this case, be granted by the State of Florida, Department of Environmental Regulation. DONE AND ENTERED this 25th day of October, 1977, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Edward C. Coker, III, Esquire 1212 Atlantic Bank Building Jacksonville, Florida 32202 Allen Scott, II, Esquire 220 East Forsyth Street Jacksonville, Florida 32202 Sheri W. Smallwood, Esquire Assistant General Counsel Department of Environmental Regulation 2562 Executive Center Circle, East Montgomery Building Tallahassee, Florida 32301
The Issue Respondent's alleged violation of Section 466.24(3)(a), Florida Statutes.
Findings Of Fact Dr. Albert Leo Vollmer is registered as a dentist with the Florida State Board of Dentistry, license no. 1437, and practices dentistry at Satellite Beach, Florida (Testimony of Mullins). On July 19, 1973, Allen M. Dingman made application to the Veterans Administration for medical benefits consisting of dental treatment (Petitioner's Exhibit 3). Authorization was given by the Veterans Administration for the requested treatment and Mr. Dingman sought the services of the Respondent. Respondent submitted a treatment plan to the Veterans Administration which was approved. Respondent thereafter provided dental services to Mr. Dingman and, in October, 1973, billed the Veterans Administration for the completed treatment. On October 18, 1973, payment in the amount of $503.00 was approved and paid to the Respondent by the Veterans Administration. This included payment for providing a 3/4 crown on tooth 20 in the amount of $115.00, a full gold crown on tooth 19 for $110.00, and a gold pontic on tooth number 18 for $90.00 (Petitioner's Exhibit 4). In April, 1974, Mr. Dingman visited Dr. Robert B. Downey, D.D.S., concerning a bridge which Respondent had provided him to replace the second molar (tooth number 18), which bridge Dingman had subsequently lost. He asked Dr. Downey what the cost would be to remedy his problem and informed him that the Veterans Administration had paid for the other work. Dr. Downey thereupon contacted the Veterans Administration concerning the prior treatment (Testimony of Dingman, Downey). Approximately a year later, Mr. Dingman was examined by Dr. Fred C. Nichols, D.D.S., of the Veterans Administration, who found that Dingman did not have gold crowns on teeth number 19 and 20, nor a gold pontic to replace tooth number 18. Mr. Dingman showed Dr. Nichols a cast metal frame work which had once been intended as a unilateral mandibular partial denture to replace tooth number 18 (Testimony of Nichols; Petitioner's Exhibit No. 5). The Veterans Administration, by letter of May 19, 1975, advised the Respondent that he would be billed for $315.00 representing the work which had not been performed. Respondent advised the VA that Mr. Dingman had objected to crown preparations and that he had therefore prepared a cantilever bridge which had been too bulky and thereafter another bridge was made at his expense which was apparently acceptable. The Veterans Administration reasserted its claim for $315.00 and Respondent, by letter of July 14, 1975, sought a credit for the work which he had performed, and by a further letter of August 12, 1975 advised that, although all of his records concerning Mr. Dingman could not be found, he estimated the cost of his actual work to be $207.90, and sought credit therefor (Petitioner's Composite Exhibit 6). Respondent testified that although his original plan was to provide fixed bridge work for Mr. Dingman, upon reflection and after noting that the patient was a hypersensitive person who objected to having the necessary preparatory work that would be required for crowns, he decided to attempt to preserve the natural teeth if possible and not to "abort" them. He further testified that although he had requested his office assistant to prepare an amended VA form for the patient to reflect his decision to do a different type of work, he did not follow-up to see if it was sent in to the Veterans Administration. He further maintained that his office assistant had done poor work, that he did not pay much attention to the paper work in the office and, although he usually reviewed applications for treatment such as Exhibit 4 by "implicit faith", he would usually "skip-read" these forms and sign them without completely checking the details thereon. He stated that his accounts were in a mess during this period and that this was the reason the dental laboratory records concerning Mr. Dingman were unavailable and why he had since hired accountants to do his bookkeeping work. His present assistant supported the fact that when she was first employed about a year and a half ago, Respondent's records were sloppy and that it was her custom to prepare various forms for the Respondent's signature. Mr. Dingman denied that he had ever told the Respondent that he was afraid to have his teeth cut into, or that he was hypersensitive in nature (Testimony of Vollmer, Mander, Person, Dingman) Dr. Daniel Beirne, a physician of Indian Harbor Beach, testified that he had common patients with the Respondent, and that the Respondent had an excellent reputation for truth and veracity in the community. Dr. Downey testified to the Respondent's bad reputation as a dentist, as did Dr. Carroll D. House, a member of the Brevard Dental Society Grievance Committee (Testimony of Burre, Downey, House). Respondent's license to practice dentistry was suspended in 1958 for a period of three months for an advertising violation with the proviso that the suspension was suspended for a period of one year upon certain conditions. His license was again suspended for a period of six months in 1960 for advertising violations (Petitioner's Exhibits 7 & 8)
Findings Of Fact On January 20, 1988 the City made application to the Department for issuance of a dredge and fill permit to replace an existing wooden bridge known as the Lynnhaven Terrace Bridge which crosses Deep Bottom Creek in Duval County, Florida. At that time the existing bridge was a two lane timber bridge measuring approximately 20 feet wide, having two spans of 19 feet and 14 feet respectively with associated guardrails. The replacement bridge was to be 44 feet wide and 37 feet long. Subsequently, a revision was made to the permit application which called for reduction in the width of the bridge to 39 feet. A copy of the original application may be found as City's Exhibit 2 admitted into evidence and the revision was received as City's Exhibit 3. The bridge in its revised format would include two paved lane and two sidewalks on the outside of those lanes. This bridge too would have guardrails. The bridge replacement project would involve the dredging of approximately 122 cubic yards of material from the creek bottom and the installation of 12 concrete pilings along the riverbank. Approximately 4.75 cubic yards of fill will be placed below the mean high waterline and 690 cubic yards above that line. Stabilization of the north and south banks of the side of the bridge will be accomplished with 160 linear feet of sheet pile wall. The total acreage to be filled is approximately 1.1 acres with 0.002 acres being in wetlands or open waters within the Deep Bottom Creek. By this arrangement, part of the activities are within waters of the state and the upward extent of those waters and confer jurisdiction on the Department to require a dredge and fill permit and water quality certification. The jurisdiction of the Department extends to the mean high waterline of the creek in accordance with Section 403.913(2), Florida Statutes, and this takes into account the opportunity to examine the implications of dredging and filling associated with the project. The waters at issue are Class III waters. Black Bottom Creek is part of a drainage basin leading to the St. Johns River, a major water body. The reason for this project concerns the present bridge's deteriorating condition as shown in the City's Composite Exhibit 1, a series of photos. The bridge is in such disrepair that it has been downgraded in its load rating to three (3) tons, which is inadequate to support heavy vehicles, to include emergency vehicles such as firetrucks. With the advent of the concrete bridge, this problem would be rectified. An attempt to effect repairs on the existing bridge is not a reasonable choice for the City. The Department, in response to the application, conducted an assessment of that application or appraisal to include biological and water quality concerns. A copy of the report rendered in response to the application may be found as the Department's Exhibit 1. That report favors the grant of a permit in water quality certification and at the date of hearing that opinion was still held by the Department. The report points out that the project would straighten out a problem with a curve in the creek course by the choice of location for the new bridge. This arrangement will assist in the flow pattern and give a positive influence in preventing shoaling underneath the existing bridge. It will also positively affect the problem of the erosion in the upland area of the existing bridge which causes deposition of material into the creek bottom. The report describes the fact that steps to contain turbidity during the construction phase can be achieved. Having been satisfied concerning this application, an Intent to Issue a Permit and water quality certification was stated on April 15, 1988. A copy of the Intent to Issue may be found as Department's Exhibit 2 admitted into evidence. The permit was to be issued on condition concerning the question of authority to operate in waters of the state as contemplated by Chapter 253, Florida Statutes. That matter is not one for consideration in the present dispute. It also refers to preservation of historical and archeological artifacts. There has been no demonstration that such artifacts exist in the area of this project. The turbidity control mechanisms were mentioned as a special condition and as suggested before, those matters can be attended by this applicant and are expected to be. There is reference to doing the work at periods of average or low water, and there was no indication that this could not be accomplished by the applicant. On April 19, 1988 the actual permit was rendered and had attached letters of April 18, 1988 advising the City that it could contest the permit terms and the fact that others might promote objections to the permit and water quality certification. In fact, a number of land owners in the general vicinity of the project have contested this permit application leading to the present hearing. The petition and challenge to the intention to grant a permit was timely made. The Petitioners are Mr. and Mrs. John Jordan, Mr. and Mrs. Ian Ablett, Mr. Keith Kelly, Ms. Dorothy Brown, Mr. Hal Moyle, Ms. Holly Baker, Ms. Beatrice Diomont, J. H. Cater, Mr. and Mrs. W. Reed, Mr. and Mrs. H. Carrell, Mr. Harvey Jay, Ms. K. C. Walsh and Donald Braddock. Only Mr. and Mrs. Ablett, Mr. Kelly, and the Carrell's attended the hearing and established their standing to challenge the intended agency action. Moreover, the nature of their challenge as set forth in their petition has been restricted by a ruling which struck reference to the alleged influence which this project has on property values associated with a lack of sensitivity for aesthetics in exchanging the wooden bridge for a concrete pile bridge. Otherwise, the Petitioners through the presentation at hearing spoke in terms of shoaling at the site as a matter of their concern. This problem is not one which is attributable to the City and its activities, it is related to commercial activities upstream from the project site. As described, if anything, the project will alleviate those problems to some extent. Additional reasons which the Petitioners advanced in opposition concern the belief that they did not need a new bridge, that the bridge was too wide and that they did not need sidewalks and guardrails. Notwithstanding their perceptions, the overall public needs would favor the replacement of the bridge to include wider lanes and sidewalks for safe pedestrian passage. Again, at present, there are no sidewalks with the existing bridge. The expression of opposition by the Petitioners beyond the reference to the shoaling problem and the effects on water levels is not a matter of environmental concern contemplated by the permit application review process under consideration here. On May 13, 1988, the Department of the Army issued a permit for this project, a copy of which may be found as City's Exhibit 4 admitted into evidence. In addition, the Coast Guard has no opposition to this project and has said as much in its correspondence of May 2, 1988, a copy of which may be found as City's Exhibit 5 admitted into evidence. The immediate and long term impacts of this project are not violative of applicable state water quality standards, in that reasonable assurances have been given that those standards will not be exceeded. This project is not contrary to the public interest. It is not adverse to public health, safety or welfare or property of others. The project will not adversely affect the conservation of fish and wildlife, to include endangered or threatened species or other habitats. The project will not adversely affect navigation or the flow of water which will cause harmful erosion or shoaling. The project will not adversely affect the fishing or recreational values or marine productivity in the vicinity of the project. The project is permanent in nature but over time it will not have adverse impacts on the environment. Considering the current conditions and diminished value of environmental functions being performed by the area, they are not particularly significant at present and the project will not change that posture, in fact it may improve the circumstance. Specifically, at present no endangered or threatened species are found within the creek. There had been some wildlife activity, but continuing problems with silting or shoaling have occurred since the homeowners in the area dredged the creek bottom, and wildlife has decreased as a result. This relates to the upstream activities which continue to promote problems in the creek bottom. On the subject of navigation, limited navigation is available by small boats or canoes at present, and the elevations of the replacement bridge are such as to not interfere with that activity.
The Issue The issue is the appropriate penalty to be imposed upon Dr. Carroll for two admitted violations of the Dental Practice Act: (1) performing root canal treatment which was below acceptable standards, and (2) practicing beyond the scope of dentistry.
Findings Of Fact Findings Concerning Liability The following findings of fact are based upon the paragraphs or subparagraphs of the Administrative Complaint which Dr. Carroll admits: Inadequate Root Canal Therapy Dr. Carroll treated Sylvia Lankheim. He performed root canal therapy on Ms. Lankheim's lower left second bicuspid (tooth #20) and provided a post and crown for the tooth. Dr. Carroll's endodontic treatment and post and crown restoration of tooth #20 were inadequate, and subsequently failed. Practicing Beyond the Scope of Dentistry Dr. Carroll neither admits nor denies the following allegations found in the Administrative Complaint, but agrees that they make out a prima facie case for the charge of practicing beyond the scope of dentistry: On or about October 31, 1983, Dr. Carroll made a presentation at a local condominium association concerning the purported hazards of mercury poisoning resulting from amalgam restorations in teeth. His presentation included films, testimonies by two former patients, and paraphernalia used to test for mercury toxicity. As the result of this presentation, Ms. Sylvia Lankheim scheduled an appointment with him on about November 3, 1983. When Dr. Carroll saw Ms. Lankheim on November 3, he took full mouth x-rays and made an impression of her teeth for study models. On or about November 8, 1983, Dr. Carroll's dental assistant conducted a Mercury Patch Test on Ms. Lankheim to determine her sensitivity to mercury. The test involves placing a solution of mercury chloride on a band- aid, placing the band-aid on the forearm, removing the band-aid 24 hours later and interpreting the patient's dermatological response to the test. Use of a patch test to determine an allergic response or sensitivity to mercury is not within the scope of the practice of dentistry as defined in Section 466.003, Florida Statutes (1985). The patch test used by Dr. Carroll to determine an allergic response or sensitivity to mercury is not reliable and its use is unproven. Based upon these facts, Dr. Carroll has agreed he is guilty of the charge of practicing beyond the scope of dentistry, in violation of Section 466.028(1)(z), Florida Statutes (1985), as alleged in paragraph 13(d) of the Administrative Complaint. Findings Pertaining to Penalty Penalty guidelines have been adopted by the Board of Dentistry in Rule 21G-13.005, Florida Administrative Code. The penalty for incompetence in the practice of dentistry is prescribed under Rule 21G-13.005(2)(bb) as follows: Being guilty of incompetence. The usual action of the Board shall be to impose a period of probation, restriction of practice, suspension and/or revocation. The usual penalty for practicing beyond the scope of dentistry is stated in Rule 21G-13.005(2)(dd) as follows: Practicing or offering to practice beyond the scope permitted by law or accepting and performing professional responsibilities which the licensee knows or has reason to know that he is not competent to perform. The usual action of the Board is to impose a period of probation, restriction of practice, and/or suspension. The Board may deviate from these penalties in an individual case based upon the following aggravating or mitigating factors: The severity of the offense; The danger to the public; The number of repetitions of offenses or number of patients involved; The length of time since the violation; The number of times the licensee has been previously disciplined by the Board; The length of time the licensee has practiced; The actual damage, physical or otherwise, caused by the violation and the reversibility of the damage; The deterrent effect of the penalty imposed; The effect of the penalty upon the licensee's livelihood; Any efforts of rehabilitation by the licensee; The actual knowledge of the licensee pertaining to the violation; Attempts by the licensee to correct or stop the violation or refusal by the licensee to correct or stop violation; Related violations against the licensee in another state including findings of guilt or innocence, penalties imposed and penalties served; Penalties imposed for related offenses... Rule 21G-13.005(4)(a)-(n), Florida Administrative Code. Dr. Carroll relies on a number of recent cases decided by the Board of Dentistry to argue that the appropriate penalty in this case is a fine of no more than $1,000, and a requirement that he attend 20 to 25 hours of additional training in endodontics in addition to the continuing education required of dentists to maintain their licensure. He maintains that no probation is necessary, as rehabilitation or as punishment. In the case of Board of Dentistry v. Norman A. Fenichel, reported at 10 FALR 6745 (Board of Dentistry, 1988) the Board imposed an administrative fine of $1,500 and placed the dentist on probation for two years, with a requirement that he attend 36 hours of continuing education in crown and bridge work, 36 hours in endodontics and 12 hours in the laws and rules relating to the practice of dentistry or ethics. The penalty was based upon findings made after a formal hearing that the dentist had performed inadequate root canal therapy, and that after the patient had stopped payment on the check for that dental work due to pain and the improper seating of the crown. Fenichel had failed to forward her file to a subsequent treating dentist. Dr. Carroll also relies on other discipline cases of the Board of Dentistry to support the penalty he advocates, where there were stipulated dispositions in somewhat similar circumstances. The case of Board of Dentistry v. Daniel B. Baldridge, DPR Case 0066648 (Board of Dentistry 1987) involved a charge of a feeble attempt to perform endodontic therapy on tooth #3. The stipulated disposition was a fine of $1,000, a reprimand, and probation far one year during which Dr. Baldridge was required to complete 20 hours of continuing education in endodontics. No portion of the Baldridge stipulation included an agreement that Baldridge was guilty of any violation, which is a significant difference from the present case. In the case of Board of Dentistry v. Vance Bishop, Case 0068343 (Board of Dentistry 1988), Dr. Bishop neither admitted nor denied the allegations of an Administrative Complaint which charged that he had provided incomplete endodontic filling of a tooth on which he placed a crown and that two other crowns were poorly done. A fine of $1,500 was imposed, Dr. Bishop was reprimanded, placed on probation for a year and required to complete 15 hours of continuing education in endodontics and another 15 hours in the area of crown and bridge work, endodontics and another 15 hours in the area of crown and bridge work. In the case of Board of Dentistry v. David Murrin, Board of Dentistry Case 0066593 (Board of Dentistry 1988), Dr. Murrin entered into a stipulation without admitting any of the facts in the Administrative Complaint. According toe the complaint, Murrin had performed a root canal and installed a crown on a mandibular left first molar (tooth #19), but subsequent examination showed that the root canal procedure had never been concluded because there was only partial removal of pulp tissue from the tooth, and no filling material had been used. His records failed to show any therapy had been attempted. Murrin was charged with making untrue representations in the practice of dentistry in violation of 466.028(1)(l), Florida Statutes; malpractice, in violation of 466.028(1)(y), Florida Statutes; exploiting a patient for financial gain in violation of 466.028(1)(m), Florida Statutes; and fraud and deceit in the practice of dentistry, in violation of Section 466.028(1)(u), Florida Statutes. According to the stipulation he paid administrative costs of $1,000, and received a reprimand but no period of probation. In the case of Board of Dentistry v. Frederick Newton, Board of Dentistry Case 0070984 (Board of Dentistry 1988), Dr. Newton entered into a settlement stipulation in which he admitted the allegations of fact contained in the Administrative Complaint (with a small correction of those facts). According to the admitted facts, Dr. Newton provided root canal therapy on tooth #3 and amalgam restorations on teeth #3, 14, 19 and 30. The root canal therapy on tooth #3 was inadequately filled and sealed, Johnson did not record on the patient's chart the use of a rubber dam, did not record the canal length of tooth #3, chart the measurements for the endodontic files he used, or take a post-operative x-ray showing the completed root canal therapy. He was therefore charged with malpractice in violation of Section 466.028(1)(y), Florida Statutes, and failing to keep records justifying the course of treatment in violation of section 466.028(1)(m), Florida Statutes. The Board's final order imposed an administrative fine of $1,500, reprimanded him and placed him on probation for a period of twelve months, in which time he was required to complete 20 hours of endodontic continuing education and one course in recordkeeping.
Recommendation Based upon the foregoing, it is RECOMMENDED that a Final order be entered by the Board of Dentistry finding Dr. Carroll guilty of violation of Sections 466.028(1)(y), Florida Statutes (1985) and 466.028(1)(z), Florida Statutes (1985), that an administrative fine in the amount of $1,500 be imposed, that he be reprimanded, and that his license be placed on probation for a period of one year, during which he shall complete 25 hours of continuing education in endodontics in addition to any other education required to keep his licensure current. DONE and ORDERED this 9th day of May, 1989, in Tallahassee, Leon County, Florida. WILLIAM R. DORSEY, JR. 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 9th day of May, 1989. COPIES FURNISHED: Nancy M. Snurkowski, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Michael J. Cohen, Esquire 517 Southwest First Avenue Fort Lauderdale, Florida 33301 Salvatore A. Carpino, Esquire One Urban Centre, Suite 750 4830 West Kennedy Boulevard Tampa, Florida 33609 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William Buckhalt, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32399 =================================================================
