96-005692 Department Of Agriculture And Consumer Services vs. Curtis Little, D/B/A Johnnie's Trim Shop Status: Closed Recommended Order on Friday, May 29, 1998.

Summary: Evidence in license discipline case was insufficient to prove violation alleged.

/STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, )

BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 97-5692

)

MERLE N. JACOBS, )

)

Respondent. )

______________________________)

RECOMMENDED ORDER

A final hearing was conducted in this case on March 25,

1998, in West Palm Beach, Florida, before Michael M. Parrish, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Thomas E. Wright, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

For Respondent: Dr. Merle N. Jacobs, pro se

614 Northwest 8th Avenue

Delray Beach, Florida 33444

STATEMENT OF THE ISSUE

This is a license discipline case in which the Respondent

has been charged in a Corrected Administrative Complaint with a

violation of Section 466.028(1)(m), Florida Statutes.

PRELIMINARY STATEMENT

At the final hearing in this case, the Petitioner presented

the testimony of one expert witness, Dr. John Jordan, and offered

the testimony of the patient by means of a deposition transcript.

In addition to the testimony, the Petitioner offered four

exhibits, all of which were received in evidence. The Petitioner

testified on his own behalf and also presented the testimony of

his wife. The Petitioner also offered one exhibit, which was

received in evidence.

At the conclusion of the hearing the parties were allowed

ten days from the filing of the transcript within which to file

their respective proposed recommended orders. The transcript was

filed with the Division of Administrative Hearings on April 20,

1998. On April 29, 1998, the Petitioner filed a timely proposed

recommended order. The Respondent requested an extension of time

until May 8, 1998. The request was granted. Thereafter, on

May 20, 1998, the Respondent filed two letters, one undated and

the other dated May 18, 1998, 1 in which he summarizes his view of

the case. The post-hearing submissions of all parties have been

carefully considered during the preparation of this Recommended

Order.

FINDINGS OF FACT

1. At all times material to this proceeding, the

Respondent, Dr. Merle N. Jacobs, has been licensed to practice

dentistry in the State of Florida. He currently holds license

number DN 0005940.

2. During the period from January 22, 1993, through

March 27, 1995, T. C. was a patient of the Respondent. During

that period of time, the Respondent performed various dental

services for T. C., including the making and fitting of a partial

denture.

3. The Respondent prepared and kept dental records and

medical history records of his care of patient T. C. The

Respondent's records of such care are sufficient to comply with

all relevant statutory requirements.

4. The Respondent's records of such care do not include any

notations specifically identified or captioned as a treatment

plan. The records do, however, include marginal notes of the

course of treatment the Respondent intended to follow in his care

of patient T. C. Those marginal notes describe the treatment the

Respondent planned to provide to patient T. C.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction

over the subject matter of and the parties to these consolidated

cases. Section 120.57(1), Florida Statutes.

6. The Petitioner is the state agency charged by statute

with regulating the practice of dentistry in the State of

Florida.

7. In cases of this nature, proof greater than a mere

preponderance of the evidence must be submitted. Clear and

convincing evidence is required. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996);

Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); McKinney v.

Castor , 667 So. 2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v.

Castor , 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v.

Department of Business and Professional Regulation , 654 So. 2d

205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of

Business Regulation , 601 So. 2d 245 (Fla. 1st DCA 1992); Munch v.

Department of Professional Regulation , 592 So. 2d 1136 (Fla. 1st

DCA 1992); Newberry v. Florida Department of Law Enforcement ,

585 So. 2d 500 (Fla. 3d DCA 199 1); Pascale v. Department of

Insurance , 525 So. 2d 922 (Fla. 3d DCA 1988); Section

120.57(1)(h), Florida Statutes. ("Findings of fact shall be

based on a preponderance of the evidence, except in penal or

licensure disciplinary proceedings or except as otherwise

provided by statute.")

8. "[C]lear and convincing evidence requires that the

evidence must be found to be credible; the facts to which the

witnesses testify must be distinctly remembered; the testimony

must be precise and explicit and the witnesses must be lacking in

confusion as to the facts in issue. The evidence must be of such

weight that it produces in the mind of the trier of fact a firm

belief or conviction, without hesitancy, as to the truth of the

allegations sought to be established." In re Davey , 645 So. 2d

398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

9. The disciplinary action taken against the licensee may

be based only upon those offenses specifically alleged in the

administrative complaint. See Cottrill v. Department of

Insurance , 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v.

Department of State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987);

Hunter v. Department of Professional Regulation , 458 So. 2d 842,

844 (Fla. 2d DCA 1984).

10. In determining whether Section 466.028(1)(m), Florida

Statutes, has been violated in the manner charged in the

administrative complaint, one "must bear in mind that it is, in

effect, a penal statute. . . . This being true the statute must

be strictly construed and no conduct is to be regarded as

included within it that is not reasonably proscribed by it.

Furthermore, if there are any ambiguities included such must be

construed in favor of the . . . licensee." Lester v. Department

of Professional and Occupational Regulations , 348 So. 2d 923, 925

(Fla. 1st DCA 1977).

11. The conduct for which disciplinary action may be taken

against a licensed dentist includes the following at Section

466.028(1)(m), Florida Statutes:

(m) Failing to keep written dental records

and medical history records justifying the

course of treatment of the patient including,

but not limited to, patient histories,

examination results, test results, and X

rays, if taken.

12. The Corrected Administrative Complaint issued in the

instant case, after allegations identifying the parties, alleges

the following:

3. Between January 22, 1993, and March 27,

1995, patient T. C. presented to Respondent

for dental care.

4. On or about June 8, 1994, Respondent

took impressions for a partial to be anchored

to Patient T. C.'s tooth #12. The partial

did not fit properly.

5. On or about September 11, 1994,

Respondent took impressions for a partial to

replace patient T. C.'s pre-existing partial.

6. Respondent failed to take radiographs

prior to making the aforementioned

impressions.

7. Based on the foregoing, Respondent has

violated Section 466.028(1)(m), Florida

Statutes, by failing to keep written dental

records and medical history records

justifying the course of treatment of the

patient including, but not limited to,

patient histories, examination results, test

results, and x-rays, if taken.

13. Notably absent from the above-quoted allegations is any

mention of a "treatment plan." Also absent is any mention of

Rule 21G-17.002, 2 Florida Administrative Code, which, among other

things, requires that dental treatment records contain a

"treatment plan proposed by the dentist."

14. In the opinion of the Petitioner's expert, the

Respondent's records complied with all requirements, except the

rule requirement that the records contain a treatment plan. Such

being the case, the evidence is insufficient to prove the

statutory violation charged in the Corrected Administrative

Complaint.

15. In the opinion of the Petitioner's expert, the

Respondent's records failed to comply with the requirements of

the above-mentioned rule, because, in his opinion, the records

failed to include a treatment plan. Even if proved by the

required quality of evidence, 3 such a conclusion could not be a

proper basis for disciplinary action against the Respondent,

because the Corrected Administrative Complaint does not contain a

factual allegation that the records lack a treatment plan, nor

does it contain an allegation that the Respondent violated Rule

21G-17.002, Florida Administrative Code. It is a well-

established rule of law that disciplinary action cannot be meted

out on the basis of violations that are not charged in the

administrative complaint. (See the cases cited in paragraph 9,

above.) Such being the case, the Corrected Administrative

Complaint in this case must be dismissed.

RECOMMENDATION

On the basis of all of the foregoing it is RECOMMENDED that

a Final Order be issued in this case dismissing all charges

against the Respondent.

DONE AND ENTERED this ____ day of May, 1998, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this ____ day of May, 1998.

ENDNOTES

1/ The letter dated May 18, 1998, explains that the undated

letter was timely mailed. For unknown reasons, the original of

the undated letter was never received by the Division of

Administrative Hearings. The Respondent's post-hearing

submissions have been treated as timely-filed.

2/ Rule 21G-17.002, Florida Administrative Code, has since been

renumbered as Rule 64B5-17.002.

3/ In any event, the greater weight of the evidence in this case

is to the effect that the Respondent's marginal notations are

sufficient to comply with the "treatment plan" requirement of

Rule 21G-17.002. In this regard, I have found the Respondent's

testimony to be more persuasive than the testimony of the

Petitioner's expert. Although the Petitioner's expert expressed

the unexplained opinion that the subject records did not contain a

treatment plan, he did not explain the basis for that opinion, and

he was not recalled to express any opinion on the Respondent's

assertion that the marginal notes were sufficient to comply with

the "treatment plan" requirement of Rule 21G-17.002.

COPIES FURNISHED:

Thomas E. Wright, Esquire

Agency for Health Care Administration

Post Office Box 14229

Tallahassee, Florida 32317-4229

Dr. Merle N. Jacobs

614 Northwest 8th Avenue

Delray Beach, Florida 33444

William Buckhalt, Executive Director

Board of Dentistry

Department of Health

1940 North Monroe Street

Tallahassee, Florida 32399-0792

Angela T. Hall, Agency Clerk

Department of Health

1317 Winewood Boulevard, Building 6

Tallahassee, Florida 32399-0700

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.