00-001921 Department Of Health, Board Of Denistry vs. Houshang J. Dayan, D.D.S. Status: Closed Recommended Order on Friday, February 9, 2001.

Summary: Respondent`s conviction of crimes in another state concerning sexual misconduct related to the practice of dentistry constituted violations of Section 466.028, Florida Statutes. Respondent`s license to practice dentistry should be revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 00-1921

)

HOUSHANG J. DAYAN, D.D.S., )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

A hearing was held pursuant to notice on November 28, 2000,

by Barbara J. Staros, assigned Administrative Law Judge of the

Division of Administrative Hearings, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Rosanna M. Catalano, Esquire

Agency for Health Car Administration

2727 Mahan Drive

Fort Knox Building, Mail Stop 39

Tallahassee, Florida 32308

For Respondent: No appearance was made on behalf

of Respondent.

STATEMENT OF THE ISSUE

At issue is whether Respondent committed the offenses set

forth in the Amended Administrative Complaint and, if so, what

penalty should be imposed.

PRELIMINARY STATEMENT

Petitioner, Department of Health, Board of Dentistry, filed

an Amended Administrative Complaint on or about February 17,

2000, with two counts of professional violations against

Respondent, a licensed dentist.

Respondent disputed the allegations in the Amended

Administrative Complaint and petitioned for a formal hearing

involving disputed issues of material fact. The case was

referred to the Division of Administrative Hearings on or about

May 8, 2000. A formal hearing was set for November 28, 2000,

with notice of said hearing sent to counsel for both parties.

On September 20, 2000, counsel for Respondent filed a Motion

to Withdraw. No response to the motion was filed and the motion

was granted on October 3, 2000. On October 4, 2000, a Notice of

Hearing was sent directly to Respondent to the address identified

as Respondent's by his attorney.

No pre-hearing stipulation was filed. Counsel for

Petitioner indicated that Respondent had not responded to

discovery or attempts at contacting him.

At hearing, Petitioner presented the testimony of Evangaline

Rentz and Michael Kennedy. Official recognition was taken of

Chapters 455 and 466, Florida Statutes, and Section 20.43,

Florida Statutes. Petitioner's Exhibits numbered 1-3 were

admitted into evidence.

At the time the hearing was scheduled to commence, the

hearing was opened but no appearance was made on behalf of

Respondent. The hearing recessed for one-half hour to give

Respondent every opportunity to appear, but no appearance was

made on his behalf.

A transcript consisting of one volume was filed on

January 5, 2001. On January 8, 2001, Petit ioner timely filed a

Proposed Recommended Order which has been considered in the

preparation of this Recommended order. Respondent has not filed

any post-hearing submission.

FINDINGS OF FACT

1. Petitioner is the state agency charged with regulating

the practice of dentistry pursuant to Section 20.43, Florida

Statutes, and Chapters 455 and 466, Florida Statutes. Pursuant

to the authority of Section 20.43(3)(g), Florida Statutes,

Petitioner has contracted with the Agency for Health Care

Administration to provide consumer complaint, investigative and

prosecutorial services by the Division of Medical Quality

Assurance, councils, or boards.

2. Respondent is and has been at all times material hereto,

a licensed dentist in the State of Florida, having been issued

license number DN0006759. Respondent's dental license has been

delinquent since March 1, 2000.

3. Respondent's last known address is 8081 Park Villa

Circle, Cupertino, California 95014.

4. On or about December 16, 1993, Respondent was convicted

in a jury trial of one count of soliciting prostitution, five

counts of sexual battery and two counts of false imprisonment in

the County of Santa Clara, California. Respondent was sentenced

to three years in prison. The sentence was suspended and

Respondent was placed on felony probation for five years subject

to the following conditions: that he serve one year in the

county jail; that he pay fines and penalties; that he undergo

psychiatric counseling; that he report his conviction to future

employers; that he report to the California Dental Board; that he

treat male patients only; and that he have no contact with the

victims.

5. The circumstances underlying Respondent's criminal

convictions involved sexual battery of female employees in the

dental office and of female patients during dental treatments in

his office while he was engaged in the practice of dentistry.

6. In or around January 1996, the California Board of

Dentistry accepted Respondent's surrender of his California

license to practice dentistry in case number AGN 1994-18, and

allowing Respondent to apply for reinstatement after one year,

subject to the terms and conditions of Respondent's criminal

probation.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction

over the parties and subject matter in this case pursuant to

Sections 120.569 and 120.57(1), Florida Statutes.

8. Petitioner has the burden of proving by clear and

convincing evidence the specific allegations of the Amended

Administrative Complaint. See Ferris v. Turlington , 510 So. 2d

292 (Fla. 1987).

9. Section 466.028, Florida Statutes, reads in pertinent

part as follows:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(b) Having a license to practice dentistry

or dental hygiene revoked, suspended, or

otherwise acted against, including the denial

of licensure, by the licensing authority of

another state, territory, or country.

(c) Being convicted or found guilty of or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which relates to the practice of

dentistry or dental hygiene. A plea of nolo

contendere shall create a rebuttable

presumption of guilt to the underlying

criminal charges.

* * *

(2) When the board finds any applicant or

licensee guilty of any of the grounds set

forth in subsection (1), it may enter an

order imposing one or more of the following

penalties:

(a) Denial of an application for licensure.

(b) Revocation or suspension of a license.

(c) Imposition of an administrative fine not

to exceed $3,000 for each count or separate

offense.

(d) Issuance of a reprimand.

(e) Placement of the licensee on probation

for a period of time and subject to such

conditions as the board may specify,

including requiring the licensee to attend

continuing education courses or demonstrate

competency through a written or practical

examination or to work under the supervision

of another licensee.

(f) Restricting the authorized scope of

practice.

10. Count I of the Amended Administrative Complaint charged

Respondent with committing an act which disciplinary action may

be taken pursuant to Section 466.028(1)(b), Florida Statutes, for

having a license to practice dentistry revoked, suspended, or

otherwise acted against by the licensing authority of another

state. As Respondent's license to practice dentistry was

suspended by the licensing authority of California, Petitioner

has met its burden of proving Count I.

11. Count II of the Amended Administrative Complaint

charged Respondent with committing an act for which disciplinary

action may be taken pursuant to Section 466.028(1)(c), Florida

Statutes, for being convicted or found guilty of a crime in any

jurisdiction which relates to the practice of dentistry. As

Respondent was convicted by a California jury of one count of

soliciting an act of prostitution, five counts of sexual battery

and two counts of false imprisonment, all crimes which were

related to Respondent's practice of dentistry, Petitioner has met

its burden of proving Count II.

12. Rule 64B5-13.005, Florida Administrative Code, reads in

pertinent part as follows:

(3) When the Board finds an applicant or

licensee whom it regulates under Chapter 466,

Florida Statutes, has committed any of the

acts set forth in Section 466.028, Florida

Statutes, it shall issue a Final Order

imposing appropriate penalties within the

ranges recommended in the following

disciplinary guidelines:

* * *

(c) Having a license to practice dentistry

or dental hygiene revoked, suspended, or

otherwise acted against, including the denial

of licensure by the licensing authority of

another state, territory, or country. The

usual action of the Board shall be to impose

a period or probation, restriction of

practice, suspension and/or revocation

depending upon the conduct involved and

penalties imposed by the other jurisdiction.

In the case of an applicant, the Board shall

deny the application.

(d) Being convicted or found guilty,

regardless of adjudication, of a crime in any

jurisdiction which directly relates to the

practice of dentistry or dental hygiene. The

usual action of the Board shall be to impose

any of the penalties specified in subsection

466.028(2), F.S. dependent upon the gravity

of the underlying conduct. However, in the

case of criminal conduct involving insurance

fraud, sexual misconduct , or drug violations,

the Board shall impose a suspension or

revocation . In the case of an applicant, the

Board shall deny the application.

* * *

(4) Based upon consideration of aggravating

or mitigating factors, present in an

individual case, the Board may deviate from

the penalties recommended in subsections (2)

and (3) above. The Board shall consider as

aggravating or mitigating factors the

following:

(a) The severity of the offence;

(b) The danger to the public;

(c) The number of repetitions of offenses

or number of patients involved;

(d) The length of time since the violation;

(e) The number of times the licensee has

been previously disciplined by the

Board;

(f) The length of time the licensee has

practiced;

(g) The actual damage, physical or

otherwise, caused by the violation

and the reversibility of the damage;

(h) The deterrent effect of the penalty

imposed;

( i) The effect of the penalty upon the

licensee's livelihood;

(j) Any efforts of rehabilitation by the

licensee;

(k) The actual knowledge of the licensee

pertaining to the violation;

(l) Attempts by the licensee to correct or

stop the violation or refusal by the

licensee to correct or stop violation;

(m) Related violations against the licensee

in another state including findings of

guilt or innocence, penalties imposed

and penalties served;

(n) Penalties imposed for related

offenses under sections (2) and (3)

above;

(o) Any other relevant mitigating or

aggravating factor under the

circumstances.

(Emphasis supplied.)

* * *

13. Petitioner seeks revocation of Respondent's license to

practice dentistry. Revocation is one of the penalties which the

board may impose pursuant to Section 466.028(2), Florida

Statutes, and is within the permissible range established by Rule

64B-13.005. Moreover, several of the aggravating factors which

are enumerated in said rule are present. No mitigating factors

were presented by Respondent. Accordingly, there being no reason

to deviate from Petitioner's recommendation, its proposed penalty

is accepted as appropriate. Walker v. Department of Business and

Professional Regulation , 705 So. 2d 652, (Fla. 5th DCA 1998).

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of

Law set forth herein, it is

RECOMMENDED:

That the Board of Dentistry enter a final order adopting the

foregoing findings of fact and conclusions of law and which

revokes Respondent's license.

DONE AND ENTERED this 9th day of February, 2001, in

Tallahassee, Leon County, Florida.

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Build ing

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of February, 2001.

COPIES FURNISHED:

Rosanna M. Catalano, Esquire

Agency for Health Care Administration

Post Office Box 14229

Mail Stop 39

Tallahassee, Florida 32317-4229

Houshang J. Dayan, D.D.S.

8081 Park Villa Circle

Cupertino, California 95014

William H. Buckhalt, Executive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way

Tallahassee, Florida 32399-1701

Theodore M. Henderson, Agency Clerk

Department of Health

4052 Bald Cypress Way Bin A02

Tallahassee, Florida 32399-1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.