00-001517 Department Of Health, Board Of Denistry vs. Michael Jerome Clair, D.D.S. Status: Closed Recommended Order on Thursday, April 12, 2001.

Summary: Respondent`s license to practice dentistry revoked in Maryland following entry of Consent Order; Florida filed Administrative Complaint based on Maryland action; credible mitigation not shown; license revoked.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 00-1517

)

MICHAEL JEROME CLAIR, D.D.S., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held before Daniel M. Kilbride,

Administrative Law Judge, Division of Administrative Hearings,

on January 11, 2001, by video conference between Tallahassee and

Orlando, Florida.

APPEARANCES

For Petitioner : Michael J. Cohen, Esquire

517 Southwest First Avenue

Fort Lauderdale, Florida 33301

For Respondent : Jeff G. Peters, Esquire

Jeff G. Peters & Associates

1266 Paul Russell Road

Cedars Woods Office Center

Tallahassee, Florida 32301-7103

STATEMENT OF THE ISSUES

Whether Respondent's license as a dentist should be

disciplined in Florida as a result of having his license revoked

in Maryland. If so, what discipline would be appropriate .

PRELIMINARY STATEMENT

An Administrative Complaint was filed by the Department of

Health, Board of Dentistry, on February 14, 2000, charging

Respondent with a violation of Subsection 466.028(1)(b), Florida

Statutes, for having his license to practice dentistry in

Maryland revoked. Respondent filed an Election of Rights, dated

March 20, 2000, and requested an administrative hearing. This

matter was referred to the Division of Administrative Hearings

on April 6, 2000, and was set for hearing and discovery ensued.

Following continuances granted at the request of the parties, a

formal hearing was held on January 11, 2001.

Prior to the hearing, the parties filed a Joint Pre-Hearing

Stipulation. At the hearing, Petitioner introduced the

following Exhibits into evidence:

1. Consent Order from the State Board of

Dental Examiners for the State of Maryland,

dated August 11, 1999.

2. September 28, 1999, letter from

Respondent to the Agency for Health Care

Administration, Board of Dentistry.

Respondent testified on his own behalf and introduced the

following Exhibits into evidence:

1. Massachusetts action with regard to

Maryland revocation.

2. Four letters attesting to Respondent's

good character.

3. Florida licensure.

4. September 13, 2000, letter from the

Florida Academy of General Dentistry;

September 20, 2000 , letter from the National

Academy of General Dentistry; and renewal of

license from the Commonwealth of

Massachusetts.

A Transcript of the hearing was prepared and filed on

March 1, 2001. Prior to the date set for the parties to file

post-hearing submittals, Respondent filed a Motion to Enlarge

Time to File Proposed Recommended Orders. The Motion was

granted, giving each party until April 2, 2001, in which to file

their proposed recommended orders. Both parties filed Proposed

Recommended Orders which have been given careful consideration

in the preparation of this Recommended Order.

FINDINGS OF FACT

The following Findings of Fact are determined:

1. Petitioner is the state agency charged with regulating

the practice of dentistry pursuant to Section 20.243, Florida

Statutes, Chapter 455, Florida Statutes, and Chapter 466,

Florida Statutes.

2. Pursuant to the authority of Subsection 20.43(3)(g),

Florida Statutes, Petitioner has contracted with the Agency for

Health Care Administration, hereinafter referred to as the

"Agency," to provide consumer complaint, investigative, and

prosecutorial services required by the Division of Medical

Quality Assurance, councils or board, as appropriate, including

the issuance of emergency orders of suspension or restriction.

3. Respondent is, and has been at all times material

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

issued license number DN 10010. Respondent's address is

6112 Raleigh Street, Apartment No. 1506, Orlando, Florida 32835.

4. Respondent was a licensed dentist in the State of

Maryland and other states. On or about August 12, 1999,

Respondent's license to practice dentistry in the State of

Maryland was revoked. A true copy of the Consent Order which

revoked Respondent's Maryland dental license was admitted in

evidence as Petitioner's Exhibit One. By letter dated

September 28, 1999, Respondent advised the Agency for Health

Care Administration, Board of Dentistry, of his revocation in

Maryland.

5. Based upon the foregoing, Respondent's license to

practice dentistry in the State of Florida is subject to

discipline for violating Subsection 466.028(1)(b), Florida

Statutes, for having a license to practice dentistry revoked,

suspended, or otherwise acted against, including the denial of

licensure, by the licensing authority of another state,

territory, or country.

6. The State of Maryland revoked Respondent's license

based upon findings of fact contained in the Consent Order

admitted into evidence. The findings conclude that during the

period of 1992 to 1998 Respondent engaged in a scheme of

performing unnecessary procedures on patients, and training and

encouraging dentists who worked for him to do the same,

including putting pressure on these dentists to perform

unnecessary procedures. The other findings parallel this

charge, including performing root canal therapies which were

unnecessary; replacing amalgam restorations which did not need

to be replaced, which caused the need for root canal therapy and

crowns; misleading patients in these regards; and billing for

services which were not needed. Respondent freely, voluntarily,

and knowingly waived his right to a due process hearing and

agreed to the entry of the Consent Order.

7. The findings were based upon the materials and evidence

available to the authorities in Maryland.

8. Respondent is licensed in the State of Florida to

practice dentistry. Respondent's current license expires on

February 28, 2002.

9. Respondent is licensed to practice dentistry in the

Commonwealth of Massachusetts and the State of West Virginia.

Respondent's license to practice dentistry in those States has

been renewed.

10. Respondent is an approved continuing education course

provider and instructor, authorized by the Florida Academy of

General Dentistry and the National Academy of General Dentistry.

11. Respondent has not been previously disciplined by the

State of Florida, Board of Dentistry.

12. Respondent has maintained the continuing education

requirements for the states where he is licensed. In addition

to those requirements, Respondent has maintained the United

States Academy of Dentistry continuing education requirements.

The Academy requires seventy-five hours every two years.

13. Respondent testified that he and his family moved to

Florida in 1998. Respondent was living in Florida in 1999 when

he received notice of the Maryland Complaint. Respondent

testified that as a result of his move to Florida the previous

year, and due to financial constraints, he could not afford the

legal fees and costs necessary to pursue a formal hearing and

defend himself against the charges contained in the Complaint.

14. Respondent testified that when he consulted with a

Maryland attorney regarding the costs of challenging the

Administrative Complaint, he had not been aware of the negative

impact it could have on his license in Florida.

15. Respondent notified the State of Florida of the action

taken by the Board of Dentistry in Maryland as required by

Florida law.

16. Respondent testified that the practice of dentistry is

important to him and that in his opinion he did not pose a risk

to health, safety, and welfare of the citizens of Florida and

that should it be deemed appropriate to place him on probation

for a period of time and/or to direct supervision by another

dentist be required, he would have no objection to such

conditions being placed on his license to practice in Florida.

17. It was Respondent's intention to practice dentistry in

a group practice, and he would therefore be in a setting

pursuant to which the supervision of another dentist licensed in

the State of Florida would be possible.

18. Respondent testified that the Maryland Complaint

proceeded directly to a consent agreement, without a full

investigation of the charges or the taking of any depositions.

Respondent testified that the financial inability to hire an

expert witness and proceed to trial with legal counsel led to

his decision to enter into a consent agreement.

19. In order to avoid any further litigation, Respondent

signed a Consent Order with the State of Maryland, which

resulted in the revocation of Respondent's licensee to practice

dentistry. The Consent Order granted Respondent the ability to

seek reinstatement in five (5) years.

20. Respondent testified that he has been licensed as a

dentist for about fifteen years.

21. The Massachusetts Board of Registration in Dentistry

received notice of the revocation proceeding in Maryland and

filed their own complaint against Respondent. After reviewing

all the documentation present in the complaint filed against

Respondent by the State of Maryland, Massachusetts determined

that the Complaint should be dismissed.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction of the subject matter and the parties thereto

pursuant to Subsection 120.57(1) and Section 120.569, Florida

Statutes.

23. Subsection 466.028(1)(b), Florida Statutes, provides

that the following shall constitute grounds for which

disciplinary action may be taken:

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.

24. Subsection 466.028(2), Florida Statutes, provides for

the following range of 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

or another licensee.

(f ) Restricting the authorized scope of

practice.

25. Rule 64B5-13.005, Florida Administrative Code,

provides Disciplinary Guidelines employed by the Board of

Dentistry. Subsection (1) provides:

Unless relevant mitigating factors are

demonstrated the Board shall always impose a

reprimand and an administrative fine not to

exceed $3,000.00 per count or offense when

disciplining a licensee for any of the

disciplinary grounds listed in subsections

(2) or (3) of this rule. The reprimand and

administrative fine is [sic] in addition to

the penalties specified in subsections (2)

and (3) for each disciplinary ground.

26. Subsection (3)(c) of Rule 64B5-13.005, Florida

Administrative Code, is applicable to the violation at issue and

provides:

The usual action of the Board shall be to

impose a period of probation, restriction of

practice, suspension and/or revocation

depending upon the conduct involved and

penalties imposed by the other jurisdiction.

27. Rule 64B5-13.005(4), Florida Administrative Code,

provides that the Board shall consider as aggravating or

mitigating factors the following:

(a ) The severity of the offense;

(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;

(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 subsections (2) and (3)

above;

(o ) Any other relevant mitigating or

aggravating factor under the circumstances.

28. The Maryland action is a legal action on the merits

and must be honored by Florida. There is a good policy reason

for honoring actions taken by other states. Only Maryland had

the practical opportunity to investigate the charges on the

merits. If their findings are not accepted, then all a dentist

must do to avoid the consequences of license revocation is

tender his or her license and move to another state, claiming

that the charges were unfounded. The Florida Board of Dentistry

is not in a position to investigate and prosecute actions which

took place in Maryland and must accept the Maryland findings as

final. Principles of full faith and credit mandate that Florida

give full force and effect to the Maryland action.

29. The Maryland revocation was consensual. As such, a

record which would have supported or negated the merits of the

charges was avoided. Respondent agreed to the consent order

with full advise and assistance of legal counsel.

30. The action taken by the State of Massachusetts

consisted of a review of the same materials before this body

without an independent de novo investigation. As such, action

by Massachusetts has no bearing on the decision to be made by

the Florida Board of Dentistry.

31. The following mitigating factors exist : Respondent

has not been previously disciplined by the Board; the length of

time Respondent has practiced; and the effect of the penalty

upon Respondent's livelihood.

32. The following aggravating factors exist: the severity

of the offense; the danger to the public; the number of

repetitions of offenses or number of patients involved; the

actual damage, physical or otherwise, caused by the violation

and the reversibility of the damage; the deterrent effect of the

penalty imposed; and the actual knowledge of Respondent

pertaining to the violation.

33. Respondent states that he plans to go back to work

with the Comfortable Care Dental Group in one of their offices

in Longwood, Florida, where he would accept the direct

supervision by the other dentist who practices there.

34. It is not possible to tell if Respondent was in fact

guilty of the Maryland charges. However, by agreeing to the

entry of the Consent Order, Respondent admitted to the

allegations contained in the Administrative Complaint.

Therefore, they must be taken as established by the Consent

Order. As such, Respondent may present a danger to the public.

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 violating Subsection 466.028(1)(b),

Florida Statutes, and revoking Respondent's license to practice

dentistry in the State of Florida.

DONE AND ENTERED this 12th day of April, 2001, in

Tallahassee, Leon County, Florida.

___________________________________

DANIEL M. KILBRIDE

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 [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 12th day of April, 2001.

COPIES FURNISHED :

Michael J. Cohen, Esquire

517 Southwest First Avenue

Fort Lauderdale, Florida 33301

Jeff G. Peters, Esquire

Jeff G. Peters & Associates

1266 Paul Russell Road

Cedars Woods Office Center

Tallahassee, Florida 32301-7103

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

William W. Large, General Counsel

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.