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.
The Issue The issue to be determined in these consolidated cases is whether proposed Florida Administrative Code Rule 62-42.300 is an invalid exercise of delegated legislative authority.
Findings Of Fact The parties agree and the Administrative Law Judge has determined that there exists no genuine issue as to any material fact. In the December 4, 2014 SERC addendum, the Department described the changes to the proposed rule as follows: The Notice of Change filed on November 7, 2014 does not change the proposed minimum flows or the recovery strategy included in the proposed rules. The Notice of Change merely adds the existing technical information that the Administrative Law Judge found missing in the original rule text, which results in the proposed rule being found by the Judge to be vague. Specifically, these changes include: Adding the period of record used to establish the baseline flows in the Lower Santa Fe and Ichetucknee Rivers and subsequently used to develop the proposed minimum flows, and, Adding the method used for filling the data gaps in the baseline flow record for the Ichetucknee River. The Final Order in Still-I determined that the proposed minimum flows were vague because they did not include a period of record (of water flow data) to be used with the flow duration frequencies. Flow duration frequencies are percentages of time that a particular amount of flow (in cubic feet per second) is equaled or exceeded, which can vary depending on the period of record that is used. The proposed rule now describes the period of record that was used to derive the minimum flows. Petitioners contend that the rule is still vague because the rule does not identify the period of record that will be used in the future to determine whether the minimum flows are being achieved. Petitioners expressed concern that Suwannee River Water Management District might use a scientifically unsound period of record to determine that the MFL waterbodies are no longer “in recovery.” Neither the Department nor Suwannee River Water Management District identified in Still-I or in this proceeding the period of record that will be used to determine whether the minimum flows have been achieved. However, the Recovery Strategy for the MFL waterbodies is in its first phase. The rule contemplates that the MFL waterbodies will remain in recovery at least until completion of the North Florida Southeast Georgia Regional Groundwater Flow Model in 2019 and the MFLs and the Recovery Plan are re-evaluated with the model as part of phase See proposed Fla. Admin. Code R. 62-42.300(1)(d). This interpretation was confirmed by the Department and the District at the hearing on the motions for summary final order. The Supplemental Regulatory Measures (which are unchanged) do not require applicants for consumptive use permits to determine or show how a proposed withdrawal of water will affect the flow duration frequencies set forth in the rule. The period of record to be used in determining whether the minimum flows are achieved is not used in the permitting process.
The Issue The issue in this case is whether the Southwest Florida Water Management District (District) should approve applications to renew consumptive use permits filed on behalf of the West Coast Regional Water Supply Authority (Authority), Pinellas County (County), and Freeman F. Polk (Polk), and if so, what conditions should be included in the permits. The District proposes to issue renewed permits to these applicants with specified conditions, but Polk seeks certain additional condition; to the permits sought by the Authority and the County, and similarly, the Authority and County seek the imposition of additional conditions on Polk's permit. The parties seek these additional conditions to insure that the permitted uses will not interfere with any legal use of water existing at the time of the applications, and will also not cause the water table to be lowered so that lake stages or vegetation are adversely and significantly affected on lands other than those owned, leased or controlled by the applicants.
Findings Of Fact The following findings are based upon relevant stipulations of the parties: The Authority is a special taxing district of the State of Florida encompassing Pasco, Pinellas and Hillsborough Counties, which was created by interlocal agreement on October 25, 1974. It is responsible for the design, construction, operation and maintenance of facilities in locations, and at times, necessary to insure that an adequate supply of water will be available to all persons residing within its boundaries. The District is an agency of the State of Florida which is charged with regulating consumptive uses of water in a sixteen county area, including Pinellas, Pasco and Hillsborough Counties. It has implemented a permitting program that requires all persons seeking to withdraw water in excess of an annual average daily rate of 100,000 gallons, and a maximum daily rate of 1,000,000 gallons, to obtain a consumptive use permit. The Cypress Creek Wellfield is located on a 4,895 acre site in central Pasco County, lying east of U.S. 41 between State Roads 52 and 54. The District owns 3,623 acres of this Wellfield, and the remaining 1,272 acres are owned by the City of St. Petersburg. Construction on the Cypress Creek Wellfield commenced in 1974, and it currently consists of thirteen production wells, numerous monitor wells, several thousand feet of transmission lines, two 5 gallon storage tanks, a pump station and several buildings. The City of St. Petersburg, Pinellas and Pasco Counties, and the District have transferred their rights and privileges in this Wellfield, as well as the Wellfield facilities, to the Authority by contracts entered into in November, 1973, and August 1974. Water produced at the Cypress Creek Wellfield is sold at cost by the Authority to users which include the City of St. Petersburg and Pinellas County. The water produced at this Wellfield comprises 29% of the County's total water system demand (20 million gallons a day), and 25% of the City of St. Petersburg's total system demand (10 million gallons a day). These water systems serve approximately 470,000 and 330,000 persons, respectively. In March 1978, the District issued a six-year consumptive use permit to the Authority, the City of St. Petersburg, and the County authorizing an annual average and maximum daily withdrawal of 30 million gallons a day from the Cypress Creek Wellfield. The Authority also began a detailed ecological monitoring program in, and around, this Wellfield in 1978. A three-year permit was then issued to the Authority in December, 1982, authorizing withdrawals of 30 million gallons a day, annual average, and 40 million gallons a day, maximum daily, from the Wellfield. The District determined by Order No. 82-28, dated December 1, 1982, that an average annual daily rate of withdrawal of 30 million gallons, and a maximum daily rate of withdrawal of 40 million gallons from the Cypress Creek Wellfield was a reasonable-beneficial use, was consistent with the public interest, and would not interfere with any legal use of water existing at the time of that application. An application for renewal of the Cypress Creek Wellfield consumptive use permit at the quantities permitted in 1982 was filed with the District on November 7, 1985, by the Authority, the County and the City of St. Petersburg. The continued withdrawal of water from the Cypress Creek Wellfield at an annual average daily rate of 30 million gallons, and a maximum daily rate of 40 million gallons is needed in order to meet the water supply demands of the residents of Pinellas and Pasco Counties, is in the interest of residents of Pinellas County, and will not cause the rate of flow of a stream or other watercourse to be lowered below the minimum rate of flow established by the District. The regulatory level of the potentiometric surface established by the District for the Cypress Creek Wellfield has never been exceeded by prior withdrawals of water at permitted rates. Continued withdrawal of water from the Cypress Creek Wellfield at an annual average daily rate of 30 million gallons, and a maximum daily rate of 40 million gallons will not cause the potentiometric surface level to be lowered below sea level, or any regulatory level established by the District, will not cause the surface level of water to be lowered below any minimum established by the District, and will not significantly induce salt water encroachment. The Cross Bar Ranch Wellfield is located on a 8,060 acre site in north central Pasco County, lying approximately one mile south of the Pasco-Hernando County line, and immediately east of U.S. 41. The Cross Bar Ranch Wellfield property has been owned by Pinellas County since 1976. Wellfield construction was completed in 1981. By agreement entered into on April 11, 1979, the Authority is obligated to sell the County water produced from the Cross Bar Ranch Wellfield, but any excess not currently being used by the County may be sold to other members of the Authority. A significant amount of water produced at Cross Bar Ranch is pumped to the Cypress Creek Wellfield where it is combined with that Wellfield's water, and then distributed to Pinellas and Hillsborough Counties, as well as the City of St. Petersburg, for further distribution. The water produced at these two Wellfields in combination accounts for about 60% of the County's total water system demand. Following pump tests performed from 1977 to 1979, as well as an ecological monitoring program, the District issued a modified consumptive use permit to the Authority by Order 80-9, dated February 6, 1980, for Cross Bar Ranch Wellfield. The District determined that withdrawals at an average daily rate of 30 million gallons, and a maximum daily rate of 45 million gallons from Cross Bar Ranch Wellfield was a reasonable beneficial use, was consistent with the public interest, and would not interfere with any legal use of water existing at the time of that application. On November 7, 1985, the Authority and County jointly applied to the District for renewal of the consumptive use permit for Cross Bar Ranch Wellfield at the current permitted quantities of an annual average daily rate of 30 million gallons, and a maximum daily rate of 45 million gallons. These withdrawal rates are needed in order to meet present and future water supply demands of the residents of Pinellas, Pasco and Hillsborough Counties, provide water for environmental mitigation, and make up water when one or more production facilities cannot pump at their permitted levels. The withdrawal of water from Cross Bar Ranch Wellfield at permitted rates will not cause the level of the potentiometric surface to be lowered below sea level, or any regulatory levels established by the District, and will not significantly induce salt water encroachment. Jumping Gully is the only stream or watercourse in the vicinity under the influence of this Wellfield, and the District has not established a minimum rate of flow for Jumping Gully. Hydrologic data collected from monitor wells located at the Cross Bar Ranch Wellfield show the potentiometric surface has been above mean sea level during the operation of this facility. The District has renewed consumptive use permits for a period of ten years for the City of St. Petersburg, and the City of Lakeland Power Plant. The Authority owns, leases or otherwise controls the area within both the Cypress Creek and Cross Bar Ranch Wellfields. Polk owns, leases or otherwise controls the property identified in his amended permit application of July 26, 1988. Both the Authority's and Polk's permit applications were filed on the proper forms, and otherwise comply with the District's procedural requirements for consumptive use permits. Each party has standing to participate in this case. The proposed uses of water which are the subject of these proceedings are reasonable beneficial uses, and in the public interest. The only permit criteria that remain at issue in this case are set forth in Rules 40D-2.301(1)(c) and (2)(e), Florida Administrative Code. The following findings of fact are based upon the evidence presented at the hearing: Polk was first issued a consumptive use permit for Ft. King Ranch in August, 1981, after both the Cypress Creek Wellfield and Cross Bar Ranch Wellfield had each been permitted to withdraw 30 million gallons per day. Polk's permit authorized him to withdraw ground water at an average annual rate of 420,000 gallons per day, and a maximum rate of approximately 1.94 gallons per day for irrigation of pasture grass and citrus, and cattle drinking water. A temporary consumptive use permit issued to Polk in August, 1981, was signed by him and states on its face that these additional groundwater withdrawals were necessary because of drought conditions. A modified permit was issued to Polk by the District in July, 1982, authorizing him to increase his withdrawals to an average annual rate of approximately 1.94 gpd, and a maximum rate of 5.9 gpd. Polk's wells are not metered. Prior to August, 1981, Polk did not have man made surface or groundwater withdrawal on his property. As it relates to this proceeding, the property owned, leased or otherwise controlled by Polk is known as the Ft. King Ranch, which is generally located between the Cross Bar Ranch and Cypress Creek Wellfields, and consists of approximately 6,000 acres. The Ft. King Ranch is comprised of five tracts which were separately acquired by Polk commencing in January, 1969, and ending in 1984. By 1978, Polk had acquired two of these five tracts. He leased a third tract beginning in 1971, before acquiring an ownership interest in 1981. These three tracts were designated parcels A, B, and C, and are located in the eastern and northern portion of the Ranch. These three parcels were the only tracts owned, leased or otherwise controlled by Polk at the time the first Cypress Creek and Cross Bar Ranch Wellfield permits were issued in 1978. The western tracts were acquired in 1982 and 1984, and were also referred to as the AL-BAR Ranch at hearing. Polk uses the Ft. King Ranch for a cow-calf operation, and also sod farming and seeding. From 1969 to approximately 1978, there was sufficient surface water on the Ft. King Ranch for these farming activities to be carried out without irrigation or wells. Water holes used by cattle were always wet, and lakes on the property were used for swimming and fishing. His pasture, hay, seed and sod grasses received moisture solely from rainfall. However, Polk did not establish the amounts of water used in his operations prior to the issuance of Wellfield permits. In 1976, parcels A, B, and C were used for these purposes, although Polk has frequently changed the specific size and location of acreages devoted to these land uses. In order to correct flooding that occurred on portions of the Ft. King Ranch during times of heavy rainfall, Polk sought the advice of the Soil Conservation Service in the mid-1970's. He was advised to construct a series of dikes and swales to control the flow of surface water on his property. During 1980 and 1981, Polk constructed a network of swales and ditches to divert and control the flow of surface water from portions of the Ranch needing less water to those requiring wetter conditions, such as his sod and seed operation. The swales interconnect lakes and ponds on his Ranch. He also constructed a levee on the property, and installed a lift pump. These activities have converted most of the eastern portion of his ranch to improved pasture and sod grasses, and virtually eliminated native vegetation. Polk had no professional help in the construction of his ditch-swale systems, or the levee. Beginning in approximately 1980, drier conditions were experienced at the Ranch. One of the ten driest years on record in this area occurred in 1980, and continued drought conditions in 1981 caused the District's Governing Board to declare a water shortage, and impose water conservation measures throughout the District. Some lakes and cypress swamps dried completely and failed to recharge to pre-1980 levels after rainfall. Due to reduced water availability since 1980, including drought conditions in 1985, Polk's calf weights have decreased, while the number of non-breeding cows has increased. Feed bills have increased due to reduced hay and grass production at the Ranch. Polk's bahia seed and sod crops have also declined since 1980 due to reduced surface water levels. Adequate and stable moisture is essential for seed production, and while such conditions did exist on the Ft. King Ranch prior to 1980, they have been absent since 1980. Due to the drier conditions which he noted in 1980 and 1981, Polk filed a formal complaint with the District in 1981. A site visit and pump test were conducted, and the District concluded that the Wellfields were causing less than a one foot drawdown in the Ft. King Ranch water table, and that dry conditions at his ranch were due primarily to drought. In 1985, Polk complained to the District again, and requested that it augment two lakes within the Ranch. After review of surrounding lake conditions, the District declined his request since Polk's lakes had not experienced water level declines atypical of lakes well beyond the influence of the Authority's Wellfields. Studies of water level elevations in the area indicate that the effect of Cypress Creek Wellfield pumpage is quite small when compared to natural changes in water levels due to variable rainfall and evapotransporation. Rainfall in this region is variable, and there has been a significant negative trend over time in surficial and potentiometric water levels that predates Wellfield pumpage. According to J. B. Butler, who was accepted as an expert in hydrology, the swales, dikes and levees constructed by Polk have not caused the water table or surface water level reductions experienced since late 1981. Rather, these are an attempt to divert and retain water on the property, and even in their absence, there would be no significant flow of surface water across Ft. King Ranch from an east to west direction. In addition, Butler testified that a fence line berm constructed along the northern border of the Ranch is an insignificant obstacle to the flow of surface water from the north to south across the Ranch when compared to topographic features, and has had no impact on the water tables of the Ranch. However, evidence introduced at hearing established that as early as 1981, the staff of the District concluded that the swales and elevated fence lines could be aggravating low water conditions by increasing evaporation and leakance, and by excluding surface water which would have entered the Ft. King Ranch from the north. The Authority offered competent substantial evidence to rebut the Butler testimony. Thomas Schanze, who was accepted as an expert in agricultural engineering, testified that Polk's elevated berm along his northern fence line has significantly restricted the flow of surface water onto Ft. King Ranch, and has contributed to the eastern portion of the Ft. King Ranch becoming a closed watershed. Between 1984 and 1986, approximately 700 million gallons of surface water have been excluded by Polk's water control and diversion activities. This exclusion has resulted in a diminished water table within the Ft. King Ranch of about one half foot compared with the water table on the northern side of the berm. Surface water cannot flow onto Polk's property until water levels immediately north reach flood stage. Aerial photographs of the Ft. King Ranch and surrounding properties show that the Polk property is significantly drier than surrounding properties, which include predominant wetlands. If the dry conditions experienced by Polk had been due to pumpage, the same dry conditions should be observed on surrounding properties and lands nearer the Wellfields. However, aerial photos show that lands closer to the Wellfields than Ft. King Ranch are less dry than the Ranch itself. This supports the position of the District and the Authority that Polk's own activities have had a significantly greater impact than pumpage on surface and groundwater levels. The reduction in productivity of Polk's farming activities is reasonably related to his northern berm which serves as a dike, preventing water from flowing onto Ft. King Ranch, as well as drought conditions existing in 1980, 1981 and 1985. The cumulative effect of water excluded from this property and dry weather conditions is significant, and accounts for decreased production. It was not established through competent substantial evidence that Polk's decreased production has resulted from any hydrologic impact of Wellfield pumpage. The District's expert in hydrology and ground water modeling, Robert G. Perry, concluded that significant water table declines on Ft. King Ranch due to pumping from Cypress Creek and Cross Bar Ranch Wellfields could not be confirmed. Through groundwater flow modeling and statistical analysis, he concluded that a one foot water table drawdown contour resulting from withdrawals at the rate of 30 mgd for 30 days without any recharge would not reach the Ft. King Ranch. Even in a worse case scenario of 120 days without recharge and pumpage at Cypress Creek of 30 mgd for 30 days, then 40 mgd for 30 days, and finally 30 mgd for 60 days, Perry concluded that the one foot water table drawdown contour would not reach Polk's Ranch. There is some evidence that under a worse case condition, pumpage at the Cross Bar Ranch Wellfield could result in the one foot water table drawdown contour intersecting a small portion of the western tract of the Ft. King Ranch, but this tract was not owned or leased by Polk in 1978, when the first Wellfield permits were issued. Conflicting evidence based upon steady state modeling by Craig Hutchinson of the United States Geological Survey was introduced on behalf of Polk to establish that the cumulative impact of the Wellfields could induce a significant drawdown in the water table in the area between the Wellfields, including the Ft. King Ranch. However, this evidence is rejected as less credible than the analysis conducted by Park and Phillip Davis, who was also accepted as an expert in hydrology and groundwater flow modeling. The steady state approach used by Hutchinson is inappropriate for analyzing the effects of wellfield withdrawals on the water table, because the water table is a dynamic system which is never at steady state. The transient groundwater simulation model used by the District is better suited for an analysis of impacts to the water table, although it does tend to overpredict such impacts, since it accounts for changes in rainfall. The Hutchinson analysis is also unreliable since it is based upon artificially derived antecedent water levels, rather than observed levels. Finally, he did not have required predevelopment water table data, and thus, could not verify water table predictions derived from his steady state model. A transient groundwater flow computer model used by Terry Bengtsson to estimate greater potentiometric surface and water table declines due to withdrawals from the Wellfields than predicted by Park or Davis was discredited, and shown to be unreasonable, by the results of a 28 day pump test in September and October, 1988. According to Rick Stebnisky, who was called on behalf of Polk and accepted as an expert in groundwater hydrology, the combined effect of pumping at the Cross Bar Ranch and Cypress Creek Wellfields has resulted in a significant reduction in water table and potentiometric surface levels at Ft. King Ranch, with such reductions being greater in the southern areas than northern portions of Polk's property. He testified that drawdowns have been noted since pumping began at Cypress Creek in April, 1976, with greater drawdowns occurring closest to the Wellfields, and for this reason drawdowns appear to be related to pumping rather than drought conditions. However, Stebnisky's conclusions were drawn from an overly simplistic hydrographic analysis which ignored factors other than pumpage, such as reduced rainfall, regional trends, surface drainage and non-wellfield pumpage, according to Robert G. Perry, an expert in hydrology and groundwater modeling. Stebnisky was not accepted as an expert in groundwater flow modeling. It was also established that some of the basic assumptions used by Stebnisky in predicting drawdowns were inaccurate, and not based upon accepted hydrologic principles. Therefore, when weighed and considered against other expert testimony, including that of Perry and Dr. J. I. Garcia-Bengochea, Ph.D., an expert in hydrology and environmental engineering, the testimony of Stebnisky is found to lack credibility. While Dr. Garcia-Bengochea agreed with the testimony of Stebnisky that the potentiometric surface and water table levels on the Ft. King Ranch had been somewhat reduced due PAGE 18 MISSING individual well meters, regardless of whether on-site wetlands are being augmented, and is sufficiently accurate for use in evaluating the impact of withdrawals on the water table and Floridan Aquifer. As a condition for renewal of the Authority's permits, the District has required that flow measuring devices or methods be installed for each augmentation discharge point, although generally augmentation of lakes and wetlands within wellfields is not metered. The allowable drawdown levels of potentiometric surface for the Cypress Creek Wellfield established by the District have never been reached. The lowest levels occurred during severe drought conditions in 1981 and 1985. However, even during these times, the lowest potentiometric surface level was 8.53 feet above regulatory levels. Notwithstanding the testimony of Philip Waller, an expert in hydrology, pumping from Polk's irrigation Wellfields have not had a significant impact on the Cypress Creek Wellfield because Waller's model assumptions are extreme, according to Robert G. Perry, whose field of expertise includes groundwater modeling. These unrealistic assumptions included that Polk would operate his irrigation wells at maximum capacity for 120 days, and that there would be no recharge, even though irrigation, like rainfall, would be expected to result in some recharge. Even under these extreme assumptions, Waller's modeling only produced a one foot drawdown at Cypress Creek Wellfield, which would still be well within regulatory levels established by the District, based upon data for the drought years of 1981 and 1985. Since 1979, Cypress Creek Wellfield has averaged approximately 30 million gallons per day, with the maximum withdrawal occurring in May, 1983, when it averaged 34.2 mgd. From 1981 to 1985, the average withdrawals from Cross Bar Ranch Wellfield remained stable at 13 mgd, but since 1986, the pumpage has increased to over 15 mgd due, in part, to the use of water from Cross Bar to compensate for contaminated wells shut down at the Eldridge-Wilde Wellfield. For purposes of Rule 40D-2.301(1)(c), Florida Administrative Code, the District does not consider the use of water that occurs naturally, without pumping or diversion, for use on crops or other agricultural purposes to be, an existing legal use of water, because it does not require a permit. The District does not apply Rule 40D-2.301(2)(e) to protect agricultural crops, but rather to protect naturally occurring vegetation. When an application to renew a consumptive use permit is reviewed by the District, and that renewal does not seek an increase in the quantity of water withdrawals, "legal users" are those present prior to the original permit. On May 17, 1988, a Final Order was entered in DOAH Case No. 88-0693R declaring the District's Rules 40D-2.301(3)(b), (c), and (d), Florida Administrative Code, which otherwise would apply in this proceeding, to be an invalid exercise of delegated legislative authority. The Authority's applications were declared complete by the District on June 18, 1987, and the District staff recommended issuance of these permits on August 14, 1987. Modifications to the draft permit were made by the District on December 28, 1988, and these modified draft permits are acceptable to the Authority. The latest draft permits contain stated conditions which include the requirement that the Authority directly measure the amount of water it uses to augment the water level of on-site wetlands. On February 22, 1989, the Authority and the District filed a Joint Notice of Settlement in Case Number 87- 4644 by which they settled their dispute as to the duration of consumptive use permit renewals for the Wellfields, and provided for a ten year permit for Cypress Creek, and a six year permit for Cross Bar Ranch Wellfield. Polk submitted his original permit application on April 13, 1987, and then amended his request on July 26, 1988. The District has proposed to issue a draft permit to Polk, with stated conditions.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Southwest Florida Water Management District enter a Final Order approving the consumptive use permit applications of the West Coasts Regional Water Supply Authority and Pinellas County for the Cross Bar Ranch and Cypress Creek Wellfields, with conditions proposed by the District, and also approving the consumptive use permit application of Freeman F. Polk, with conditions proposed by the District. DONE AND ENTERED this 10th day of July, 1989, in Tallahassee, Florida. 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 10th day of July, 1989. APPENDIX TO RECOMMENDED ORDER, CASE NOS. 87-4644, 87-4645, 87-4647, & 88-1169 Rulings on the District's Proposed Findings of Fact: Adopted in Findings 6, 21. Rejected as unnecessary. Adopted in Finding 6. Adopted in Finding 38. Adopted in Finding 21. Adopted in Finding 11. Adopted in Finding 38. 8-11. Adopted in Finding 20. 12. Adopted in Finding 21. 13-14. Adopted in Finding 22. Adopted in Finding 27. Adopted in Finding 25. 17-19. Adopted in Findings 25, 26. 20-22. Adopted in Findings 26, 28. 23-48. Adopted in Findings 31 through 35. 49-60. Adopted in Findings 28 through 30. 61-64 Adopted in Finding 36. 65-68. Adopted in Finding 37. Rulings on the Authority's Proposed Findings of Fact: Adopted in Finding 1. Adopted in Findings 4, 10. Adopted in Finding 2. 4-6. Adopted in Finding 39. Adopted in Finding 18. Adopted in Findings 21, 22. Adopted in Finding 40. 10-11. Adopted in Finding 3. 12-14. Adopted in Finding 36. Adopted in Findings 6, 38. Adopted in Finding 5. 17-19. Adopted in Findings 6, 21. 20. Adopted in Findings 7, 16. 21-23. Adopted in Finding 41. 24-25. Adopted in Finding 9. 26-27. Adopted in Finding 36. Adopted in Findings 11, 38. Adopted in Finding 10. Adopted in Finding 11. 3132 Adopted in Findings 11, 21. 33. Adopted in Findings 12, 16. 34-36. Adopted in Finding 41. Adopted in Finding 21. Adopted in Finding 24. Adopted in Finding 29. Adopted in Finding 24. 41-42. Adopted in Finding 22. 43-45. Adopted in Finding 25. Adopted in Finding 26. Adopted in Finding 25. Adopted in Finding 26. Adopted in Findings 26, 28. 50-53. Adopted in Finding 20. Adopted in Findings 20, 21. Adopted in Finding 20. Adopted in Finding 37. Rejected as not based on competent substantial evidence. Adopted in Finding 41. Rejected as unnecessary. 60-62. Adopted in Finding 35. 63. Adopted in Finding 36. 64-70. Adopted in Findings 34, 35. 71-76. Adopted in Findings 33 through 35. 77-78. Rejected as unnecessary and irrelevant. 79-80. Adopted in Finding 34. 81-87. Adopted in Finding 32. 88-91. Adopted in Findings 26 through 35. 92-96. Adopted in Findings 29, 30, but otherwise Rejected as unnecessary and cumulative. Adopted in Finding 28. Adopted in Finding 29. 99-100. Adopted in Finding 30. 101-102. Adopted in Finding 37. Rejected as unnecessary and cumulative. Adopted in Finding 37. Rejected in Finding 37. Adopted and Rejected in part in Finding 37 Ruling on Pinellas County's Proposed Finding of Fact: (The County also adopted the Authority's Proposed Findings.) 1. Rejected since the statement proposed by the County is not a finding of fact, but simply a statement on the evidence. Evidence which was not admitted at hearing has not been considered. Rulings on Polk's Proposed Findings of Fact: Adopted in Finding 3. Adopted in Findings 9, 10. Adopted in Finding 21. Rejected in Findings 6, 11, 21. Adopted in Finding 22. Adopted and Rejected in part in Findings 25 through 27. 7-8. Rejected in Findings 25 through 27. Adopted in Finding 25. Adopted in Finding 24. 11-13. Rejected in Findings 24, 29, 30. Adopted in Finding 37. Rejected as argument on the evidence and not a proposed finding of fact. COPIES FURNISHED: Edward P. de la Parte, Jr., Esquire Douglas M. Wyckoff, Esquire 705 East Kennedy Boulevard Tampa, Florida 33602 Thomas E. Cone, Jr., Esquire 202 Madison Street Tampa, Florida 33602 John T. Allen, Jr., Esquire Chris Jayson, Esquire 4508 Central Avenue St. Petersburg, Florida 33711 Bram D. E. Canter, Esquire 306 North Monroe Street Tallahassee, Florida 32302 Peter G. Hubbell, Executive Director Southwest Florida Water Management District 2379 Broad Street Brooksville, Florida 34699-6899
Findings Of Fact On October 15, 1982, Hal Thomas Reid Associates applied for a septic tank permit to serve a 16-room motel. On February 2, 1983, this application was amended to a 5,800 gallon septic tank to serve a 32-unit condominium and office. The lot on which this drain field is to be located is 70 feet by 100 feet. When the application was filed, the lot was inspected by the Citrus County Health Department. The elevation of the land averaged 2.5 to 2.9 feet above mean sea level. The 10-year flood plane in this area is 4.9 feet. Occasional high tides inundate this area; however, the water drains off rapidly and no one testified that water ever remained standing as long as seven consecutive days. Usually the water drains off in less than 24 hours. On March 1, 1983, an extremely high tide flooded this area and roads in the vicinity to a depth of approximately one foot. This water remained on the site less than 24 hours. The site is not located adjacent to state waters, is not an area designated as wetlands, and is without the dredge and fill permitting jurisdiction of the United States Army Corps of Engineers and the Florida Department of Environmental Regulation (Exhibits 20 and 21). By adding five feet of fill to the site, the bottom of the gravel below the drain pipes will be above the 10-year flood plane. The drain field capacity is adequate to handle the flow from 33 bathrooms of residential units. In approving this permit, the Citrus County Health Department used the 150 gallons per day discharge for residential units rather than the 100 gallons per day discharge from a motel unit. The water table at this location is two feet above mean sea level. This is determined by the elevation reached at high tides for 14 consecutive days. As a condition to Citrus County withdrawing as an intervenor in these proceedings, Applicant agrees: To revegetate and restore any alleged wetlands affected by the permit to a like or similar condition; To install three shallow draft monitor wells around the drain field towards the wetlands area adjacent to the site and towards Woods 'n Waters subdivision, establish an existing level of bacteria count prior to the activation of the septic tank, and to monitor said wells through the Citrus County Health Department on a quarterly basis; and In the event any monitor wells shall test at an unsatisfactory level, Applicant will forthwith correct this condition to the satis- faction of the Citrus County Health Department. This application meets all of the code requirements of Chapter 10D-6, Florida Administrative Code.
The Issue The issue for consideration in this case is whether Respondent's license as a dentist in Florida should be disciplined because of the matters alleged in the Administrative Complaint filed herein.
Findings Of Fact At all times pertinent to the issues herein, the Board of Dentistry was the state agency in Florida responsible for the licensing of dentists and the regulation of the dental profession in this state. Respondent, Dr. Sandra L. Jaudon, was licensed as a dentist in Florida having been issued license number DN 0007871. AS TO COUNT ONE: In January 1985, Dr. Jaudon, practicing in Brandon, Florida, examined 15 year old T. E., then a resident of a foster home, under a Medicaid program in effect at that time. Though Respondent denies she was told of any pain by either T. E. or the foster mother, T. E. claims she was experiencing pain in her two front teeth and her foster mother had brought her in. Weighing the evidence and its relative probabilities, it is found that most likely T. E. was experiencing pain at this time and communicated this fact to the Respondent. Dr. Jaudon had the foster parent fill out a complete medical history form and sign a consent form, and she also mailed a questionnaire to the child's physician. Respondent performed a complete examination, including x-rays on that first visit and did a cleaning and fluoride treatment. She also found T. E. had a few cavities, and, from the x-rays, concluded that she needed root canal work on two teeth. One of the teeth in issue was tooth number 8. Respondent informed the foster parent of this fact and, as a precaution, prescribed an antibiotic for tooth number 8, based on the x-ray. On the basis of the uncontroverted evidence of record, there is no evidence to indicate Dr. Jaudon's diagnostic was not proper, and it is found that it met the minimum standard for diagnosis. On the second visit, on January 21, 1985, Dr. Jaudon filled several teeth and noted swelling over tooth number 8. Because of this, she postponed the root canal treatment until the swelling went down because of the possibility of spreading infection, but prescribed further antibiotics for the existing infection. When the patient returned on February 1, 1985, Dr. Jaudon opened tooth number 8 and drained the infection, after which she sealed the tooth with a temporary closure. She also repeated the dose of antibiotics. Respondent contends that the prevailing standard at the time dictated that a tooth undergoing root canal therapy should be sealed between appointments. Both Petitioner's dentist witnesses concurred with this suggestion, and it is so found. When T. E. came into the office on February 8, 1985, Dr. Jaudon placed a filling on tooth number 8 to establish a stable reference for continuing root canal therapy. Dr. Jaudon claims that neither T. E. nor her foster mother indicated the girl had experienced any pain during the previous week. T. E. disagrees, claiming she was still in pain and told the Respondent so. No doubt she did. No further work was done, however, until a visit on April 10, 1985, when Dr. Jaudon reopened the tooth and cleaned it out. She then resealed it with a temporary filling, and again, the records fail to reflect any complaint of pain. Finally, on May 31, 1985, Dr. Jaudon reopened the tooth, re-treated it, inserted a cotton pellet, and sealed it with a temporary cover. On August 5, 1985, T. E. saw Respondent again. At that visit, Respondent did an examination, took x-rays, and cleaned her teeth. Nothing out of the ordinary was noted, and notwithstanding T. El's claim of constant pain, the chart entries of the dental technician who performed the cleaning fail to reflect that T. E. complained of any pain since her last treatment on May 31, 1985. When Dr. Jaudon checked the condition of tooth number 8, she noted signs of new decay. T. E. recalls that while Respondent was doing the root canal procedure, someone came into the treatment room and said that Medicaid would not pay any more. T. E. recalls that after that comment, Respondent ceased work on her. Dr. Jaudon claims she did not work on this patient further because she was not brought to the office. It is so found. Nonetheless, at that time of the last visit, T. E. had a swollen lip and was still experiencing pain. T. El's foster mother later telephoned Respondent who indicated those symptoms were normal. However, when the symptoms persisted for several days, the foster mother called the Department of Health and Rehabilitative Services, under whose aegis, she was serving as a foster parent, but there is no indication what happened. On August 14, 1985, T. E. was seen at home by Dr. Charles Kekich, a dentist who was working with the Medicaid fraud investigative team which was looking into the billing records of Dr. Jaudon, among others. At the time of this examination, T. E. was still in pain and experiencing difficulties with her teeth. Dr. Kekich examined T. E. on two or three separate occasions, but after this first examination, which was done in T. El's home, he referred her to the Health Department and she was then seen by Dr. W. Edward Gonzalez, a pediatric dentist in practice in Brandon who also specialized in Medicaid patients. Dr. Gonzalez, who has in the past served as chairman of the Florida Board of Dentistry, saw T. E. in his office on September 24, 1985. At that time, she was still complaining about severe pain in and around tooth number 8. The doctor x- rayed that tooth and opened it. When he did so, he found a plug of intermediate restorative material extending half way down the root canal. At the time of the examination, the tooth was mobile and was painful as the result of a build up of pressure and fluid, an indication of infection. The gum tissue in the area of the tooth was red and inflamed. He did not request T. E.ts xrays from Respondent, as is customary to avoid a duplication of radiography. Dr. Gonzalez removed the intermediate restorative material from the root. When the material was removed, Dr. Gonzalez determined that the tooth canal still contained necrotic pulp tissue which should not have been there. This was not proper work. The accepted procedure for performing a root canal consists of cleaning and sterilizing the entire tooth canal, removing all debris and tissue from the inner portion of the tooth, medicating the tooth and cementing a plastic filling into the canal. The accepted standard of care in root canal therapy relied upon by the Board of Dentistry calls for the filling material not to extend beyond the apex of the tooth. During his examination of T. El's tooth number 8, he found that the intermediate restorative material extended 3 or 4 millimeters beyond the apex of the tooth. This was inappropriate. After he had thoroughly cleansed the inner portion of the canal and rinsed it out, Dr. Gonzalez placed a pellet of forma creosol into the tooth and sealed it, sterilizing the inner portion of the canal. This relieved the patient of pain and constituted a permanent fix of the problem. The course of treatment performed by Dr. Gonzalez lasted over a period of approximately 13 months, ending in late October 1986. Dr. Gonzalez opined that Respondent's treatment of this patient was below standard for several reasons. Among these was her failure to complete the procedure, and her application of a substance in the tooth which extended well beyond the apex. T. El's records relating to tooth number 8 were also reviewed by Dr. Thomas Floyd, a Florida licensed pediatric dentist since 1978 and expert in the field of pediatric dentistry. He was also formerly the Florida Dental Association's liaison to the state Medicaid program for several years. According to Dr. Floyd, a root canal is commenced by cleaning the canal with finger files or root canal files to remove all tissue within the canal. Dr. Jaudon's records relating to her root canal procedure on tooth number 8 on T. E. did not reflect the root canal was filed out or that any filling materials were placed in it. If the root chamber is not properly cleaned, and material is left inside, it can become necrotic and lead to infection. This is what happened in this case. In Dr. Floyd's opinion, the temporary filling done by Dr. Jaudon in this case was inadequate and done in a grossly negligent manner. He found the filling occluded two-thirds of the root canal space. The infection which resulted caused T. E. to be maintained on antibiotics for an unnecessarily long period of time. Proper practice dictates the dentist will refer the patient to a specialist when it appears bacteria cannot be controlled over an extended period of time. In this case, Respondent's dental records for the patient reflect she was given antibiotics on January 7, January 21, February 1 and May 31, 1985, but they do not indicate why the antibiotics were prescribed after the initial dose. The records also fail to reflect whether the patient experienced any swelling, inflammation or infection in the area involved. Respondent's records for this patient do reflect, however, that she began to treat tooth number 8 on February 1, 1985, and the last entry in the records was made on May 31, 1985. There is no indication in her records why the root canal treatment was not completed. An entry dated April 10, 1985 states, "we are waiting for P.A.# to continue work." This may indicate that Respondent stopped work on this patient pending further payment authorization by Medicaid, as T. E. contends, though Respondent denies this. Based on the evidence outlined above, it is most likely that T. E. and her foster parent were not satisfied with the lack of pain relief the patient was getting from Dr. Jaudon's treatment. When, as a part of the Medicaid audit being performed by Dr. Kekich, it was suggested T. E. be seen by Dr. Gonzalez, this was done, and she did not return to Respondent for any further treatment. The records further show that on February 8, 1985, Respondent placed a permanent restoration on the mesial, buccal, lingual and incisal surfaces of tooth number 8. Placing a permanent filling in the area of a root canal which still contains necrotic or infectious debris is inappropriate practice as infection is likely to result. Ordinarily, permanent restorations are not placed on a tooth undergoing root canal treatment until the root canal has been completed. Records indicate that after placing the permanent restoration on tooth number 8, Respondent re-opened the tooth twice by drilling through the permanent restoration placed there in February 1985. Based on the above matters, both Dr. Gonzalez and Dr. Floyd concluded that Dr. Jaudon's treatment on tooth number 8 in T. El's mouth during the period between January and May 1985 failed to meet the minimum standard of performance in diagnosis and treatment. Notwithstanding Respondent's disagreement, it is so found. AS TO COUNT II Respondent does not dispute she pleaded nolo contendere in Circuit Court to 25 counts of Medicaid fraud. As a result of her plea, on November 19, 1986 she was placed on probation for one year on Counts 5 - 10 and 25 - 28, and one year consecutive for Counts 30 - 31. Beyond the routine conditions of probation, she was ordered to pay $238.00 in court costs; $952.00 in restitution to the Department of Health and Rehabilitative Services and $5,000 in prosecution costs to the Auditor of the Medicaid Department. Early termination of probation after one year was authorized. In matters relating to discipline of a dental license, a plea of nolo contendere, by statute, creates a rebuttable presumption of guilt to the underlying criminal charges. Respondent strenuously rejects any claim that she was guilty of any fraud involving Medicaid payments. According to Andrea Chilton, a senior investigator with the Agency's Medicaid Fraud Unit, the case against Respondent was generated based on a review of her billings due to a high percentage of three-surface restorations. At the beginning of the inquiry, Ms. Chilton secured a computer print-out of Respondent's billings and payments and selected a sample of them, relating to thirteen individual patients, for audit. The Agency retained Dr. Kekich, a public health dentist whose activities for the past several years, almost exclusively have consisted of dental patient evaluations to determine evidence of Medicaid fraud, to examine patient records and to compare those records to his independent examination of the patients' mouths. In conjunction with Miss. Chilton, Dr. Kekich examined all thirteen patients and their records and, having found discrepancies, then looked at an additional fifteen patients and their records, and also found discrepancies. Dr. Kekich, along with Special Agent Marcia Connell, who had been trained by Dr. Kekich to record dental procedures and fillings accurately, examined the first thirteen patients on August 14, 1985. Using an artificial light and a tongue blade, Dr. Kekcih looked into the patient's mouth and then called out by tooth number whether there was a filling present and if there was, what surfaces had been treated. If a tooth was missing he would call that out, or if a tooth had no fillings he would call that out as well. This examination procedure revealed a number of fillings for which Medicaid had been billed but which could not be found in the mouths of several patients. Medicaid reimbursed dentists on the basis of the surfaces restored. If there were more than one filling on a particular surface, only the designation of the surface was recorded, not the number of restorations per surface. This is the procedure followed during Dr. Kekich's examination of Respondent's patients. After the first examination, the Medicaid office requested Dr. Kekich reexamine the patients and note each restoration. There were changes in the count. For example, during the first examination of T. E., Dr. Kekich noted that the occlusal surface of tooth number 14 had been restored. During the reexamination conducted on May 15, 1986, approximately nine months later, T. El's mouth showed two restorations on the occlusal surface of tooth number 14. Respondent's records regarding T. E. reflect that on February 18, 1985, Respondent billed for a three-surface restoration on tooth 14. The records also reflect that the same day, she billed for a three surface restoration of tooth number 15 when the two examinations by Dr. Kekich revealed only one surface had been restored. By the same token, on March 1, 1985, she billed for a three surface restoration or both teeth numbers 30 and 31, but the examinations reveal only one restoration on each tooth. Ms. Chilton interviewed Respondent and asked her to explain those discrepancies and her procedure for treating Medicaid patients and her billing practices to EDS, the Medicaid billing agent. Dr. Jaudon was unable to clearly explain what had happened, claiming merely that she "didn't pay attention to their codes or their things I should have known ...," but the difference may be explained by the method used by Dr. Kekich to record procedures done. Based on this interview and the examinations of patients and records, Ms. Chilton found discrepancies on twenty- seven of twenty-eight cases totaling $952.00 for services billed but allegedly not rendered Notwithstanding her plea, Respondent has consistently maintained her innocence of any Medicaid fraud. Over the years of her practice, she claims she has treated literally thousands of Medicaid patients and has never been the subject of any complaint regarding their treatment. In the instant case, Respondent was selected for audit because of the relatively high number of three surface restorations for which she billed. She claims, however, that in all her billings she had followed the acceptable standards of the American Dental Association for tooth notation and billing codes. In addition, she asserts she has always utilized Medicaid prior authorization forms when requesting permission for treatment on patients. The instructions on those forms calls for the use of the ADA system, and where appropriate, she would also include x-rays to facilitate the decision. Dr. Jaudon questions the propriety of the examinations done by Dr. Kekich and his qualifications to evaluate her performance. She notes that he admitted to using only a light and a tongue blade to perform the examination. It should be noted, however, that he was merely looking at surface restorations and not doing a clinical examination. As to Kekich's qualifications, he is a licensed dentist, and though he has not been in dental practice for many years, having served as an agency consultant and examiner, possesses adequate technical credentials to perform the minimal surface examinations he did here. By the same token, the fact that he has been an agency employee for many years does not necessarily mean, as claimed by Respondent, that he was not familiar with the methods for charting certain types of fillings as prescribed by the ADA. However, it was shown that on two different patients, surface restorations that Dr. Kekich said were missing were, in fact, present. n Of all Respondent's procedure billings, including examinations, x-rays, white fillings, crowns, and extractions, only silver amalgam fillings were questioned. Respondent asserted that of all the dental procedures performed on patients, the silver filling is the type that generates differences in opinion as to surfaces. Different dentists can look at a silver filling and interpret it as one, or more than one, surface. When Dr. Kekich, at the request of the agency, reexamined some of the Respondent's patients he had previously examined, the results differed as to the identical teeth, even though no work on those teeth had been done in the interim. It was determined that on his first examinations, Dr. Kekich had made no distinction between O and OL fillings as is suggested by the ADA. These two fillings are different. Respondent pointed out that O+OL is the proper way to notate this filling, and this was the way she had done it in her Medicaid authorization requests and billings without objection by the agency. Though Petitioner indicated at hearing that a manual alleged to be in existence in 1985 prohibited reimbursement for O+OL fillings, the manual was not presented and Dr. Kekich, when questioned at deposition, could not recall in what years a manual addressing this issue existed. Respondent contends, and it appears to be a reasonable assertion, that if Medicaid had had such a policy prohibiting that type of filling at the time, her requests for prior authorization would not have been approved. A third examination of Respondent's patients in issue was conducted in May 1986 by a different dentist who was not called to testify at the hearing. The records of these examinations were not, in all cases, consistent with records of the prior two. Respondent claims, and Dr. Kekich agrees, that subjective interpretation and opinion can account for what a particular dentist calls a two or three surface filling, and that different examiners could identify a class 2 filling as either a two surface or a three surface filling. Respondent does not deny that she pleaded nolo contendere to the misdemeanor charges. The grand theft charges were dismissed. She pleaded as she did for several reasons. She had been approached by several parents of the patients involved who asked if there was some way in which the examinations could be brought to an end because of the stress being occasioned to the children as a result of the repeated examinations. She also had substantial concerns about the effect the investigation was having on her family. There were financial concerns as well. She had expended considerable sums in attorney fees and costs up to this point and had been advised by her attorney that the cost of going to trial to contest the charges would be an additional $30,000. Her attorney advised her to plead nolo contendere because, he asserted, such a plea was not an admission of guilt. Respondent has been licensed as a dentist in Florida since 1978 and has no prior disciplinary record. Both dentists, from whose offices she practiced, Drs. Wayman D. Price and Michael 0. Abdoney, would send her patients and, from time to time, see her patients. Neither has received or heard of any complaints from her patients or their own patients regarding her treatment. She continued to treat Medicaid patients throughout the investigation to no cost to insure they received proper care and to ward off any issue of patient abandonment. Any money received from Medicaid during the investigation was placed by Respondent into escrow. She has cooperated with the investigation and in no way unreasonably caused the delay in coming to hearing. Because of financial considerations, she has, from time to time, had to proceed without counsel, and was not represented at this hearing, her counsel having withdrawn shortly before the hearing. Though in 1987 she withdrew from practice out of deference to her patients and because of the large amount of time needed to devote to the defense of the matters alleged here, Respondent has continued to take all and more than is required of continuing education courses in an effort to keep current with developments in her field. She has met all the conditions of her probation and it was successfully terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Board of Dentistry enter a final order dismissing so much of Count I of the Administrative Complaint as alleges Respondent is guilty of diagnosis below standard, but finding her guilty of treatment below standard in the root canal treatment of T.E. It is further recommended that Count II of the Administrative Complaint be dismissed. It is further recommended that Respondent's license be reprimanded and placed on probation for a period of six months. DONE and ENTERED this 19th day of May, 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) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 1997. COPIES FURNISHED: Natalie Duguid Esquire Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Sandra L. Jaudon, D. M. D., pro se Post Office Box 2023 Brandon, Florida 33599-2023 William Buckhalt, Executive Director Agency for Health Care Administration Board of Dentistry Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact At all times pertinent to the issues herein, the Department was the state agency responsible for the regulation and issuance of dredge and fill permits for waters of the state. Hunt is a real property development company which owns the property in issue located contiguous to Sarasota Bay on the east and an artificial canal, dredged many years ago, located to the south. The property in issue includes submerged lands. Petitioners, Manasota and Manatee are environmental interest associations whose standing as parties hereto was stipulated to by Hunt and the Department. The Rosens are owners of a piece of land at the bayward end of the property located to the south of the artificial canal to the south of the property in issue. On September 2, 1988, Hunt applied to the Department for a dredge and fill permit to construct a dock system four feet wide and approximately one thousand feet in length along the northern edge of the artificial canal. Four access walkways would extend from the existing berm to the north out to the proposed dock. The request also sought permission to trim mangroves to facilitate construction of and provide access to the dock; to place 22 cubic yards of fill to stabilize an existing private road; and to relocate the existing access channel by dredging approximately 700 cubic yards of material. Petitioners do not object to the placement of the 22 cubic yards of fill. During the review process, the Department identified several deficiencies in the proposal which it required be modified before a permit could be issued. Hunt agreed to comply with all of the Department's modifying requirements. As a result, in its amended form the proposal calls for the dock to be reduced in size from 5,080 square feet to approximately 3,800 square feet; access points to be reduced from four to three; the installation of a flushing system consisting of a 30 inch culvert between the west end of the canal and the mangrove swamp to the north to enhance the water quality in the artificial canal; the submittal of historical information to demonstrate the existence of a historic canal which would support maintenance dredging; and the submittal of a mitigation proposal for the seagrasses which would be destroyed by the dredging of a new channel and for the mangroves to be trimmed to facilitate the dock construction. The revised application also sought permission to construct a previously approved (different permit) boardwalk, the mitigation for which has been completed and is apparently successful. This mitigation is located in the northern boundary of the Hunt property. The wetlands area adjacent to Hunt's north property line is a Class II, Outstanding Florida Water, (OFW). The property in issue is located contiguous to Sarasota Bay, a Class II water body designated as an OFW). This portion of the bay is not approved for shellfish harvesting. Sometime between 1951 and 1957, a channel was dredged from the Intracoastal Waterway running generally north and south in the bay, west across approximately 400 feet of bay bottom into what was then a mangrove forest on the east side of Longboat Key. The westernmost 1400 foot extension of that channel into the forest is the artificial canal in issue which receives untreated storm water runoff from Jungle Queen Way, the roadway to the south of the canal. The canal is a Class III water and is not an OFW. Approximately 1,225 feet of the southern shoreline of that canal is seawalled, with approximately 35% of the southern shoreline having mature mangrove trees along it. The entire northern shoreline is vegetated by mature mangrove trees. There is no seawall on the northern shore. The canal varies in depth from less than one foot at points to a maximum of 7 1/2 feet at other points. As a result of shoaling at the canal juncture with the bay, a sand spit has formed, and at low tide, water depth is minimal but allows the passage of shallow draft vessels if their motors are raised. The original channel has silted in to a great degree and has become vegetated by approximately 1,350 square feet of various shoal grasses. It is home to several species of water animal including crown conch, lightning whelk, venus sunray clams, jingle shell, banded tulip snail and common nassa snail as well as supporting a diverse and abundant group of bottom dwelling organisms. The grass beds are fish habitats as well as nursery and feeding grounds and fish species present include some important to commercial and sport fishing. Though the remains of the original channel are often indistinct and difficult to define, the Department, in its analysis of the application for permit, determined from a review of the documentary evidence presented , and it is also found here, that a historic channel exists as described, and is navigable at least fifty percent of the time. As such, the Department concluded that that channel qualified for the maintenance dredge exemption. The Department also concluded that a minimum amount of dredging would be required to clear the historic channel sufficiently to allow boats to utilize it during a full range of tidal conditions. The seagrass beds currently existing in the historic channel would be substantially damaged by a maintenance dredging in the area. Though the Department has no authority to require mitigation for this impact should Hunt exercised its right to maintenance dredge, as an alternative, Hunt proposed to dredge a hook shaped channel curving to the north around that portion of the historic channel which penetrates the grass beds. This alternative site is also located in Class II waters and an Outstanding Florida Water. Dredging at the alternative site would displace much the same amount of material, (approximately 700 cubic yards), and the resultant channel would be approximately the same length, width, and depth overall. The alternative site will cross an area which contains a shoal grass, Cuban Shoalweed, but utilization of this site will have a substantially lesser impact to the overall seagrass population than would dredging of the historic channel. If Hunt chooses to utilize the alternative route, it would have to comply with the Department's mitigation requirements which include transplanting the displaced grass from the alternative channel to another location. The conditions for the mitigation were developed by Department personnel in conjunction with the Department of Natural Resources whose personnel have agreed to participate in the transplantation. Hunt has agreed to undertake additional mitigation planting regardless of whether the transplant is successful. The Department has determined that Hunt's total mitigation program is sufficient to offset the adverse impacts of the proposed dredging. Any sea grasses in the area of the channel will be protected by the installation of signs indicating their location. Speed will be limited by the installation of "No Wake" zone signs, and, in addition, the natural dog-leg in the channel should minimize the impact to adjacent shorelines and reduce the potential for shoaling or erosion. The Department gathered water quality data for the area from 1988. This is consistent with the current statutory and rule criteria which permits the use of data existing in the year prior to application. To supplement this, however, the Department also required that Hunt submit water quality data for the actual project site as a part of the application process. From this input, existing ambient water quality standards were established. To insure that these existing ambient water quality standards within the OFW are maintained during construction, the Department has established a mixing zone and has indicated a requirement for the use of double turbidity curtains. Additional safeguards include limiting dredging to periods of low tide. The Department has concluded that these prosthetic activities will most likely result in maintenance of the water quality standards required for Class II and OFW. Any diminishment of those standards would be of limited duration. The Department was also satisfied that the project would not adversely impact in this area after construction was completed and the facility in operation. In support of this position, the Department relied on evidence tending to show that the design of a culvert proposed for incorporation into the project should significantly improve flushing of the water within the canal. Pollutant loading to the system should be reduced as a result of the biological filtration of the mangrove community which will absorb many of the excess nutrients currently in the canal water, and the removal of suspended solids. Expert evidence on the subject indicates that flushing time, currently estimated at 9 days, will be reduced to less than 4 days. Polluting activities, such as fueling facilities, live-aboards, and major repair and maintenance of boats in the canal will be prohibited. Any pollutants not removed by the natural filtration process described above will, therefore, remain in the canal water for less time than before. If vessels are docked in the canal, the minimal amount of resulting oil and grease pollution should not be sufficient to degrade water quality in either the canal or the bay to a point below acceptable established standards. In fact, such impact should be both non-detectable and non-measurable.. Hunt's plan calls for the removal of approximately 20 of the approximately 2,400 mangrove trees and the trimming of approximately 230 additional ones. Though this trimming, as a part of an exempt activity, is also exempt, and as a result, mitigation in not required, Hunt indicates its intention to plant 3 trees for every tree removed or trimmed, and this proposal, considered acceptable to the Department, has been incorporated as one of the permit conditions. The new mangrove area to be planted in mitigation should be fully established within 3 years of planting and will provide the same beneficial function as the replaced trees. Hunt's mitigation planting for the previously mentioned boardwalk project has been successful. To protect the manatee population as much as possible, the Department has also included conditions to the permit requiring the posting of manatee awareness signs along the canal and channel and the installation of a permanent informational display at the facility. These measures, though no guarantee of compliance by individual boaters, are currently the most effective safeguards short of prohibition of boat activity. The Department has concluded, and it is so found, that, considering the proposed project against the statutory criteria relating to dredge and fill permitting of this nature, the project, as conditioned, is in the public interest and would have no cumulative impact on the environment in the area. When the 36 special conditions attached to the permit by the Department are complied with, the effect on fish and wildlife resources in the area should be beneficial. As a result of the mitigation activities, both mangrove and seagrass populations should be increased and the shoreline enhanced. Water quality in the canal should be significantly improved above existing conditions, and the abandonment of the historic maintenance dredging operation, with its associated impacts, is clearly in the public interest. The incorporation of a permit condition precluding any subsequent maintenance dredging in the historic channel upon completion of the relocation is a safeguard clearly in the public interest. The evidence also indicates, supporting Departmental findings to that effect, that the project will not adversely affect the public health, safety, welfare or property of others; nor will it adversely affect the conservation of fish and wildlife, endangered, threatened or other. It will not adversely affect navigation or flow of water or cause harmful erosion or shoaling. It will not adversely affect fishing or recreational values or marine productivity in the area; nor will it endanger significant historical or archaeological resources which exist currently in the area.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that a Final Order be entered in this case granting a Dredge and Fill permit to Hunt Building Corporation consistent with the terms and conditions outlined in the Department's Intent to Issue, dated March 29, 1990, under file NO. 41-1542543. RECOMMENDED this 3rd day of January, 1991, in Tallahassee, Florida. ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1991. APPENDIX TO RECOMMENDED ORDER IN CASES NO. 90-2350 & 90-2736 The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR PETITIONERS, MANASOTA AND MANATEE: 1. Accepted. 2(a) - (e). Accepted and incorporated herein. Accepted and incorporated herein. Accepted. & 6. Accepted and incorporated herein. Accepted. - 12. Accepted and incorporated herein. Rejected as contrary to the evidence. Accepted. - 17. Accepted and incorporated herein. Accepted. - 22. Not appropriate Findings of Fact. Should be in Conclusions of Law. 23. - 26. Rejected. 27. - 30. Accepted and incorporated herein. 31. - 33. Accepted. Accepted except for last clause. Not a Finding of Fact but a comment on the state of the evidence. Rejected. Not proven. Not a proper Finding of Fact and not supported by authority. Accepted and incorporated herein except that the canal is a Class III water body. Accepted and incorporated herein. Not a Finding of Fact but a Conclusion of Law. Rejected. Accepted. Accepted but not determinative of any issue of fact or law. Ultimate Fact. Rejected. FOR RESPONDENT HUNT Accepted and incorporated herein. & 3. Accepted and incorporated herein. 4. & 5. Accepted and incorporated herein. 6. & 7. Accepted and incorporated herein. 8. - 10. Accepted and incorporated herein. 11. & 12. Accepted and incorporated herein. 13. Repetitive information. 14-1 & 2. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. Accepted and incorporated herein. - 28. Accepted and incorporated herein. FOR RESPONDENT DEPARTMENT: 1. - 5. Accepted and incorporated herein. 6. - 8. Accepted and incorporated herein. Accepted. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. Accepted. - 18. Accepted and incorporated herein. Accepted and incorporated herein. Accepted and incorporated herein. & 22. Accepted and incorporated herein. 23. & 24. Accepted. Accepted and incorporated herein. - 31. Accepted and incorporated herein. 32. Accepted and incorporated herein. COPIES FURNISHED: Martin Rosen 672 Jungle Queen Way Longboat Key, Florida 34228 Thomas W. Reese, Esquire 123 Eighth Street North St. Petersburg, Florida 33701 Patricia Petruff, Esquire John V. Quinlan, Esquire Dye & Scott, P.A. P.O. Box 9480 Bradenton, Florida 33506 Cecile I. Ross, Esquire Department of Environmental Regulation Twin Towers Office Building 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, Florida 32399-2400 Daniel H. Thompson General Counsel DER 2600 Blair Stone Road Tallahassee, Florida 32399-2400
Findings Of Fact The Respondent, Peter Kurachek, was a licensed dentist at all times relevant to the allegations contained in the Administrative Complaint, having been issued license number 0005429, and was so licensed at the time of hearing. On January 19, 1981, Clarence Nicholson consulted the Respondent at the Sheppard Dental Center in Clearwater, Florida, regarding a dental problem. The Respondent performed a root canal treatment on Nicholson's tooth number six, a cuspid, and prepared the tooth to receive a crown. On January 31, 1981, the Respondent installed the permanent crown, which he had had prepared. In August 1981, the crown fell out, and Nicholson returned to the Sheppard Dental Center. Nicholson did not see the Respondent on this visit, and the crown was recemented by Dr. Christopher Clarke. In November 1981, the crown fell out a second time. Nicholson returned to the Sheppard Dental Center. On this occasion, Nicholson did not see Respondent, and the crown was recemented in place by Dr. Clarke. Dr. Clarke made no gross alterations to the crown on either of the appointments; however, he did clean the crown in preparation for recementing it on both occasions. Shortly after Dr. Clarke recemented the crown the second time, Nicholson saw Respondent and requested that he correct the crown. The Respondent advised Nicholson that he would be happy to replace the crown and redo the work if the crown became loose again. Respondent feared that forcefully removing the crown in order to prepare a new one might damage Nicholson's tooth. Because he would be responsible if the tooth were broken while removing the crown, the Respondent elected to deal with Nicholson's problem if the crown became loose again of its own accord. In April 1982, more than a year after Respondent did the work for Nicholson, and after the crown had been recemented twice by another dentist, Nicholson was examined by Dr. Paul Hounchell, a dental consultant for the Petitioner. As a result of his examination, Dr. Hounchell opined that the treatment provided by the Respondent did not meet the minimal accepted standards of practice in the community. (Tr. 81.) However, Dr. Hounchell indicated that his opinion was based upon the fact that Nicholson was unable to have the crown fixed to his satisfaction. Dr. Hounchell stated, "The only unprofessional thing is that we run this man around, you know, for a half a year, a year or something like that." (Tr. 121.) The record reflects that Nicholson only saw the Respondent one time after the Respondent installed the crown, and that on that occasion the Respondent told Nicholson that he would replace the crown to Nicholson's satisfaction if the crown became loose again. The record further reflects that Nicholson never tried to see the Respondent thereafter. The tooth in question was a nonvital tooth as a result of the root canal therapy. Such a tooth is more brittle and may fracture more easily. However, the tooth had a good-sized large root which was adequate to support a longer post. The various dentists disagree concerning whether it would have been appropriate for the Respondent to have removed the crown when he saw Nicholson after Dr. Clarke had recemented the crown in place. The treatment provided by the Respondent to Nicholson met minimum acceptable standards of practice in the community.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the charges against the Respondent, Peter Kurachek, D.D.S., be dismissed. DONE and RECOMMENDED this 25th day of April, 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 25th day of April, 1983. COPIES FURNISHED: Julie Gallagher, Esquire Department of professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Peter Kurachek, DDS 703 Tropical Circle Sarasota, Florida 33581 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 H. Fred Varn, Executive Director Board of Dentistry 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the arguments of counsel, posthearing memoranda and the entire record compiled herein, the following relevant facts are found. On January 15, 1979, the then applicant, General United, submitted a joint application to the Department of Army Corps of Engineers and the Florida Department of Environmental Regulation for a permit to "remove a rock bulkhead approximately twenty (20) feet wide and fifty (SO) feet long to a minus five (- 5) feet below low tide, to connect upland canals to access channels." The excavation as requested pursuant to the permit application, if approved as applied for, would require the deposit of approximately 167 cubic yards of fill on uplands owned by the applicant (DER Exhibit 1). By letter dated May 15, 1979, Respondent, Department of Environmental Regulation, gave Petitioner notice that it intended to deny Petitioner's permit application for reasons, summarily stated, that the dredging/excavation as requested in the permit application would result in a degradation of local water quality and that the project, as applied for, would result in a reduction of the capability of habitat to support a well-balanced fish and wildlife population and an impairment of the management of feasibility of fish and wildlife management resources contrary to the public interest as defined in Sections 253.123 and 403.087. Florida Statutes. Public Law 92-500 and Section 17-4.07, Florida Administrative Code. Respondent thereafter filed a request for a formal administrative hearing pursuant to Section 120.57(1), Florida Statutes. The Petitioner called as adverse witnesses Messrs. R. F. Dumas, Field Agent; Donald Lawless, Chemist; and Curtis Kruer, Field Agent, all employed by the Department of Environmental Regulation. Petitioner's final witness was Dr. Earl Rich, a professor of biology and environmental consultant. Respondent called as witnesses Mike Nowicki, a Dredge and Fill Supervisor; and Messrs. Curtis Kruer and Donald Lawless. As applied for, the project entails the excavation of an access channel approximately twenty (20) feet wide and fifty (50) feet long to a depth of five (5) feet from Petitioner's uplands to the waters of Florida Bay. The parties stipulated that the opening would enter the waters of Florida Bay, which is a Class III water body as defined by Respondent's rules and regulations (Joint Exhibit 2). In the area of Sunset Acres, there is a canal system of approximately 1,940 feet, approxirately one-half of which is occupied by mobile home construction. The canal system is isolated from Florida Bay at the present time by a boulder bulkhead with an elevation of approximately three (3) feet above mean water level (Petitioner's Exhibit 3 and testimony of Rich). The adjacent canals are all approximately fifty (50) feet wide with an average depth of approximately seventeen (17) feet. There is agreement among the witnesses that the interior canal system is stratified and is very good to a depth of appraximately ten (10) feet, at which point the water quality deteriorates. At the lower levels, dissolved oxygen and specie diversity are low. Specie diversity in the upper column (distance of approximately ten (10) feet) supports approximately fifteen (15) fish species and twenty-two (22) species of macro-invertebrates . Algae growth was observed on the canal wall which denotes a continuity of plant and life support systems (testimony of Dr. Rich). Evidence reveals that the plant and fish specie diversity in the adjacent canal system was equally as diverse as that in the adjoining open waters of Florida Bay. The tests conducted in the water columns reflect that the dissolved oxygen levels in the upper column had average concentrations of approximately four (4) parts per million and that dissolved oxygen levels in adjacent canals which were open to Florida Bay fell in the range of 4.3 to 4.6 parts per million, 1/ which in some instances is below Class III standards (testimony of R. F. Dumas). The evidence reveals that there will he no discharge from septic tanks inasmuch as there is a collection and wastewater treatment plant for Sunset Acres. The testimony reveals that the proposed project is situated away from the prevailing winds and that there is little likelihood than detritus will be dumped into the canal systems by natural wind and wave action. In this regard, the evidence reveals that the tidal fluctuations in this area of Florida Bay are less than six (6) inches (testimony of Dr. Rich and Mr. Dumas). Evidence also reveals that inasmuch as the water quality in the interior canal system is strikingly similar and of the same quality as that water outside the canal systems, there is no reason to suspect that the opening of this project would degrade the water quality of the present canal systems based on the minimal tidal fluctuations in the area and the location of the project which is away from the prevalent winds. Nor were any facts introduced to support Respondent's concern for its assumption that the subject project would result in a degradation of water quality. Nor was there any showing that the proposed project, if permitted. would interfere with or otherwise hamper the propagation of fish and wildlife habitat. To the contrary. there is evidence that there is greater fish specie diversity in the canal systems than in the adjacent open waters of Florida Bay. It is likely that by permitting this project, the adjacent waters will benefit from such a rich and varied specie diversity (testimony of Dr. Rich and Petitioner's Exhibit 3).
Recommendation Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on February 27, 1980, in Key West, Florida. The parties stipulated that the hearing closed March 18, 1980, the date on which the parties were granted leave to file memoranda supportive of their respective positions. Said memoranda has been received and was considered by me in preparation of this Recommended Order.
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 Whether Petitioner's application for an environmental resource permit to remove two canal plugs in the Cahill canal system should be granted or denied.
Findings Of Fact The proposed project On March 19, 1998, Petitioner Cahill submitted a permit application to the Department to remove two canal plugs in the Cahill Pines and Palms subdivision on Big Pine key. A backhoe would be used to dredge and lower the plugs to a depth of minus five feet mean low water (-5 ft. MLW) for the purpose of providing boating access to the properties now isolated from open water. The Cahill canal system is located within class III waters of the state which open into Pine Channel, a natural waterbody designated as Outstanding Florida Waters (OFW). In 1991 and 1995 Petitioner Cahill submitted permit applications to the Department to remove the same two canal plugs. Those applications were initially denied and the denials were litigated in formal administrative hearings. Those hearings resulted in Department final orders denying both applications.3 Background4 In July, 1991, the Department received a permit application requesting the removal of two canal plugs down to a depth of minus five-and-a-half feet NGVD. A formal administrative hearing was conducted on March 3 and 4, 1994, in Key West, Florida, before Stuart M. Lerner, a duly designated Hearing Officer (now Administrative Law Judge) of the Division of Administrative Hearings. That initial permit application denial was based upon water quality considerations and the project's failure to meet the public interest test. On May 17, 1995, Petitioner submitted a permit application to the Department which was denied. The basis for the permit denial was that the project was substantially similar to the previously litigated project. On April 23, 1996, a second formal administrative hearing was held in Key West, Florida, before Administrative Law Judge Susan B. Kirkland. Judge Kirkland found that the 1995 permit application did not address the issues raised by the Department in the first administrative hearing. Judge Kirkland also concluded that the 1995 application should be denied on the basis of res judicata. The Department entered a Final Order on September 12, 1996, concluding that the doctrine of res judicata applied to support the denial of Petitioner's 1995 application. New facts/changed conditions In all material aspects, the proposed dredging activity in the current permit application is identical to the previously proposed dredging activity. Petitioner Cahill seeks to lower the two canal plugs to allow boat access. The documents submitted in support of the current application do not propose any significant changes to what was proposed in the two prior applications. Petitioner Cahill provided copies of provisions of the Monroe County Comprehensive Plan, the Florida Keys National Marine Sanctuary Management Plan and two Monroe County Ordinances, in support of the current permit application. This information does not constitute new facts or changed conditions sufficient to characterize the proposed project as substantially different from the previously denied applications. Petitioner Cahill provided a list of "enhancements" in the current permit application seeking to provide reasonable assurance for issuance of an environmental resource permit. These proposed "enhancements" are not binding on the Petitioner Cahill's members and do not constitute such new facts or changed conditions as to make the project substantially different from the previously denied applications. The differences between the current application and the two previously denied applications are primarily cosmetic differences. The substance of the matter is unchanged in any material detail.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be issued in this case denying Petitioner's pending application for an environmental resource permit. DONE AND ENTERED this 15th day of March, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of March, 1998.
