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.


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

1/STATE OF FLORIDA

4DIVISION OF ADMINISTRATIVE HEARINGS

8DEPARTMENT OF HEALTH, )

12BOARD OF DENTISTRY, )

16)

17Petitioner, )

19)

20vs. ) Case No. 97-5692

25)

26MERLE N. JACOBS, )

30)

31Respondent. )

33______________________________)

34RECOMMENDED ORDER

36A final hearing was conducted in this case on March 25,

471998, in West Palm Beach, Florida, before Michael M. Parrish, an

58Administrative Law Judge of the Division of Administrative

66Hearings.

67APPEARANCES

68For Petitioner: Thomas E. Wright, Esquire

74Agency for Health Care Administration

79Post Office Box 14229

83Tallahassee, Florida 32317-4229

86For Respondent: Dr. Merle N. Jacobs, pro se

94614 Northwest 8th Avenue

98Delray Beach, Florida 33444

102STATEMENT OF THE ISSUE

106This is a license discipline case in which the Respondent

116has been charged in a Corrected Administrative Complaint with a

126violation of Section 466.028(1)(m), Florida Statutes.

132PRELIMINARY STATEMENT

134At the final hearing in this case, the Petitioner presented

144the testimony of one expert witness, Dr. John Jordan, and offered

155the testimony of the patient by means of a deposition transcript.

166In addition to the testimony, the Petitioner offered four

175exhibits, all of which were received in evidence. The Petitioner

185testified on his own behalf and also presented the testimony of

196his wife. The Petitioner also offered one exhibit, which was

206received in evidence.

209At the conclusion of the hearing the parties were allowed

219ten days from the filing of the transcript within which to file

231their respective proposed recommended orders. The transcript was

239filed with the Division of Administrative Hearings on April 20,

2491998. On April 29, 1998, the Petitioner filed a timely proposed

260recommended order. The Respondent requested an extension of time

269until May 8, 1998. The request was granted. Thereafter, on

279May 20, 1998, the Respondent filed two letters, one undated and

290the other dated May 18, 1998, 1 in which he summarizes his view of

304the case. The post-hearing submissions of all parties have been

314carefully considered during the preparation of this Recommended

322Order.

323FINDINGS OF FACT

3261. At all times material to this proceeding, the

335Respondent, Dr. Merle N. Jacobs, has been licensed to practice

345dentistry in the State of Florida. He currently holds license

355number DN 0005940.

3582. During the period from January 22, 1993, through

367March 27, 1995, T. C. was a patient of the Respondent. During

379that period of time, the Respondent performed various dental

388services for T. C., including the making and fitting of a partial

400denture.

4013. The Respondent prepared and kept dental records and

410medical history records of his care of patient T. C. The

421Respondent's records of such care are sufficient to comply with

431all relevant statutory requirements.

4354. The Respondent's records of such care do not include any

446notations specifically identified or captioned as a treatment

454plan. The records do, however, include marginal notes of the

464course of treatment the Respondent intended to follow in his care

475of patient T. C. Those marginal notes describe the treatment the

486Respondent planned to provide to patient T. C.

494CONCLUSIONS OF LAW

4975. The Division of Administrative Hearings has jurisdiction

505over the subject matter of and the parties to these consolidated

516cases. Section 120.57(1), Florida Statutes.

5216. The Petitioner is the state agency charged by statute

531with regulating the practice of dentistry in the State of

541Florida.

5427. In cases of this nature, proof greater than a mere

553preponderance of the evidence must be submitted. Clear and

562convincing evidence is required. See Department of Banking and

571Finance, Division of Securities and Investor Protection v.

579Osborne Stern and Company , 670 So. 2d 932, 935 (Fla. 1996);

590Ferris v. Turlington , 510 So. 2d 292 (Fla. 1987); McKinney v.

601Castor , 667 So. 2d 387, 388 (Fla. 1st DCA 1995); Tenbroeck v.

613Castor , 640 So. 2d 164, 167 (Fla. 1st DCA 1994); Nair v.

625Department of Business and Professional Regulation , 654 So. 2d

634205, 207 (Fla. 1st DCA 1995); Pic N' Save v. Department of

646Business Regulation , 601 So. 2d 245 (Fla. 1st DCA 1992); Munch v.

658Department of Professional Regulation , 592 So. 2d 1136 (Fla. 1st

668DCA 1992); Newberry v. Florida Department of Law Enforcement ,

677585 So. 2d 500 (Fla. 3d DCA 199 1); Pascale v. Department of

690Insurance , 525 So. 2d 922 (Fla. 3d DCA 1988); Section

700120.57(1)(h), Florida Statutes. ("Findings of fact shall be

709based on a preponderance of the evidence, except in penal or

720licensure disciplinary proceedings or except as otherwise

727provided by statute.")

7318. "[C]lear and convincing evidence requires that the

739evidence must be found to be credible; the facts to which the

751witnesses testify must be distinctly remembered; the testimony

759must be precise and explicit and the witnesses must be lacking in

771confusion as to the facts in issue. The evidence must be of such

784weight that it produces in the mind of the trier of fact a firm

798belief or conviction, without hesitancy, as to the truth of the

809allegations sought to be established." In re Davey , 645 So. 2d

820398, 404 (Fla. 1994), quoting, with approval, from Slomowitz v.

830Walker , 429 So. 2d 797, 800 (Fla. 4th DCA 1983).

8409. The disciplinary action taken against the licensee may

849be based only upon those offenses specifically alleged in the

859administrative complaint. See Cottrill v. Department of

866Insurance , 685 So. 2d 1371 (Fla. 1st DCA 1996); Kinney v.

877Department of State , 501 So. 2d 129, 133 (Fla. 5th DCA 1987);

889Hunter v. Department of Professional Regulation , 458 So. 2d 842,

899844 (Fla. 2d DCA 1984).

90410. In determining whether Section 466.028(1)(m), Florida

911Statutes, has been violated in the manner charged in the

921administrative complaint, one "must bear in mind that it is, in

932effect, a penal statute. . . . This being true the statute must

945be strictly construed and no conduct is to be regarded as

956included within it that is not reasonably proscribed by it.

966Furthermore, if there are any ambiguities included such must be

976construed in favor of the . . . licensee." Lester v. Department

988of Professional and Occupational Regulations , 348 So. 2d 923, 925

998(Fla. 1st DCA 1977).

100211. The conduct for which disciplinary action may be taken

1012against a licensed dentist includes the following at Section

1021466.028(1)(m), Florida Statutes:

1024(m) Failing to keep written dental records

1031and medical history records justifying the

1037course of treatment of the patient including,

1044but not limited to, patient histories,

1050examination results, test results, and X

1056rays, if taken.

105912. The Corrected Administrative Complaint issued in the

1067instant case, after allegations identifying the parties, alleges

1075the following:

10773. Between January 22, 1993, and March 27,

10851995, patient T. C. presented to Respondent

1092for dental care.

10954. On or about June 8, 1994, Respondent

1103took impressions for a partial to be anchored

1111to Patient T. C.'s tooth #12. The partial

1119did not fit properly.

11235. On or about September 11, 1994,

1130Respondent took impressions for a partial to

1137replace patient T. C.'s pre-existing partial.

11436. Respondent failed to take radiographs

1149prior to making the aforementioned

1154impressions.

11557. Based on the foregoing, Respondent has

1162violated Section 466.028(1)(m), Florida

1166Statutes, by failing to keep written dental

1173records and medical history records

1178justifying the course of treatment of the

1185patient including, but not limited to,

1191patient histories, examination results, test

1196results, and x-rays, if taken.

120113. Notably absent from the above-quoted allegations is any

1210mention of a "treatment plan." Also absent is any mention of

1221Rule 21G-17.002, 2 Florida Administrative Code, which, among other

1230things, requires that dental treatment records contain a

"1238treatment plan proposed by the dentist."

124414. In the opinion of the Petitioner's expert, the

1253Respondent's records complied with all requirements, except the

1261rule requirement that the records contain a treatment plan. Such

1271being the case, the evidence is insufficient to prove the

1281statutory violation charged in the Corrected Administrative

1288Complaint.

128915. In the opinion of the Petitioner's expert, the

1298Respondent's records failed to comply with the requirements of

1307the above-mentioned rule, because, in his opinion, the records

1316failed to include a treatment plan. Even if proved by the

1327required quality of evidence, 3 such a conclusion could not be a

1339proper basis for disciplinary action against the Respondent,

1347because the Corrected Administrative Complaint does not contain a

1356factual allegation that the records lack a treatment plan, nor

1366does it contain an allegation that the Respondent violated Rule

137621G-17.002, Florida Administrative Code. It is a well-

1384established rule of law that disciplinary action cannot be meted

1394out on the basis of violations that are not charged in the

1406administrative complaint. (See the cases cited in paragraph 9,

1415above.) Such being the case, the Corrected Administrative

1423Complaint in this case must be dismissed.

1430RECOMMENDATION

1431On the basis of all of the foregoing it is RECOMMENDED that

1443a Final Order be issued in this case dismissing all charges

1454against the Respondent.

1457DONE AND ENTERED this ____ day of May, 1998, in Tallahassee,

1468Leon County, Florida.

1471___________________________________

1472MICHAEL M. PARRISH

1475Administrative Law Judge

1478Division of Administrative Hearings

1482The DeSoto Building

14851230 Apalachee Parkway

1488Tallahassee, Florida 32399-3060

1491(850) 488-9675 SUNCOM 278-9675

1495Fax Filing (850) 921-6847

1499Filed with the Clerk of the

1505Division of Administrative Hearings

1509this ____ day of May, 1998.

1515ENDNOTES

15161/ The letter dated May 18, 1998, explains that the undated

1527letter was timely mailed. For unknown reasons, the original of

1537the undated letter was never received by the Division of

1547Administrative Hearings. The Respondent's post-hearing

1552submissions have been treated as timely-filed.

15582/ Rule 21G-17.002, Florida Administrative Code, has since been

1567renumbered as Rule 64B5-17.002.

15713/ In any event, the greater weight of the evidence in this case

1584is to the effect that the Respondent's marginal notations are

1594sufficient to comply with the "treatment plan" requirement of

1603Rule 21G-17.002. In this regard, I have found the Respondent's

1613testimony to be more persuasive than the testimony of the

1623Petitioner's expert. Although the Petitioner's expert expressed

1630the unexplained opinion that the subject records did not contain a

1641treatment plan, he did not explain the basis for that opinion, and

1653he was not recalled to express any opinion on the Respondent's

1664assertion that the marginal notes were sufficient to comply with

1674the "treatment plan" requirement of Rule 21G-17.002.

1681COPIES FURNISHED:

1683Thomas E. Wright, Esquire

1687Agency for Health Care Administration

1692Post Office Box 14229

1696Tallahassee, Florida 32317-4229

1699Dr. Merle N. Jacobs

1703614 Northwest 8th Avenue

1707Delray Beach, Florida 33444

1711William Buckhalt, Executive Director

1715Board of Dentistry

1718Department of Health

17211940 North Monroe Street

1725Tallahassee, Florida 32399-0792

1728Angela T. Hall, Agency Clerk

1733Department of Health

17361317 Winewood Boulevard, Building 6

1741Tallahassee, Florida 32399-0700

1744NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

1750All parties have the right to submit written exceptions within 15

1761days from the date of this recommended order. Any exceptions to

1772this recommended order should be filed with the agency that will

1783issue the final order in this case.

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Date
Proceedings
PDF:
Date: 05/29/1998
Proceedings: Recommended Order
PDF:
Date: 05/29/1998
Proceedings: Recommended Order (hearing held , 2013). CASE CLOSED.
Date: 01/29/1997
Proceedings: Order Closing File sent out. CASE CLOSED, Parties have reached a Settlement.
Date: 01/21/1997
Proceedings: (Petitioner) Amended Motion to Relinquish Jurisdiction to the Petitioner filed.
Date: 12/20/1996
Proceedings: (Petitioner) Motion to Relinquish Jurisdiction to the Petitioner; CC:Letter to Rhonda Bass from Curtis Little (Re: he has settled) (filed via facsimile).
Date: 12/10/1996
Proceedings: Initial Order issued.
Date: 12/04/1996
Proceedings: Agency referral letter; Petition for Formal Proceeding Form; Attachment to Petition; Agency Notice of Denial; (2) Letters to B. Crawford from J. Floyd (re: request for review) filed.

Case Information

Judge:
WILLIAM A. BUZZETT
Date Filed:
12/04/1996
Date Assignment:
12/10/1996
Last Docket Entry:
05/29/1998
Location:
Port St. Joe, Florida
District:
Northern
Agency:
Department of Agriculture and Consumer Services
 

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