10-010476PL Department Of Health, Board Of Denistry vs. Francisco Fonte, D.D.S. Status: Closed Recommended Order on Monday, May 23, 2011.

Summary: Respondent found not guilty of having failed to keep adequate dental records; committed fraud, deceit, or misconduct; and caused a dental office to be operated in such a manner as to result in substandard dental treatment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

DENTISTRY , )

)

Petitioner, )

) Case No. 10 - 1047 6 PL

vs. )

)

FRANCISCO FONTE , D. D.S. , )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative Law Judge John G. Van Laningham conducted

the final hearing in this case, which began on February 28,

2011, and ended on March 3, 2011. The hearing, which was

webcast over the Internet using streaming media technology, took

pla ce at sites in Tallahassee and Miami, Florida .

APPEARANCES

For Petitioner: Jeff G. Peters , Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

For Respondent: Orland o Rodriguez - Rams, Esquire

Lorenzo & Rodriguez - Rams

9192 Coral Way, Suite 201

Miami, Florida 33165

STATEMENT OF THE ISSUE S

The issue s in this case are whether Respondent , a dentist

who owns a multidentist practice, (a) failed to keep dental

reco rds and medical history records justifying the course of a

patient's treatment; (b) billed a patient for dental services

that were not actually rendered, thereby committing fraud,

deceit, or misconduct; or (c) caused a dental office to be

operated in such a manner as to result in substandard dental

treatment. If Respondent committed any of these offenses, it

will be necessary to determine an appropriate penalty.

PRELIMINARY STATEMENT

On May 25, 2010, Petitioner Department of Health issued a

three - count Administrative Complaint against Respondent

Francisco Fonte, D.D.S. Dr. Fonte timely requested a formal

hearing, and on December 2, 2010, the Department referred the

matter to the Division of Administrative Hearings. The

undersigned scheduled a multiday hearing to begin on

February 28, 2011.

B oth parties were represented by counsel at the hearing,

which went forward as planned. The Department 's witnesses were

Robert Seimitz, Maria Cardoso, Margarita Subirats, Lisa Ortega,

A.H., O.R., D.S., J.S., Dr. Hal Haering, and Dr. Fonte.

Dr. Fonte called Dr. Idalmis Ramos - Abelenda as a witness.

Received in evidence were Joint Exhibits 1, 19, 22, 32, and 3 6;

and Petitioner's Exhibits 2, 4, 24, 26, 27, 28, 29, and 30.

The final hearing transcript, co mprising eight volumes, was

filed on March 29 , 201 1 . T he Department's motion requesting

that the deadline for filing proposed recommended orders be

enlarged to April 21, 2011 , was granted. Each party timely

filed a Proposed Recommended Order , and these h ave been

considered . Dr. Fonte's motion to strike the appendix attached

to the Department's Proposed Recommended Order is denied.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 20 1 0 Florida Statutes. 1

FINDINGS OF FACT

1 . At all times relevant to this case, Respondent

Francisco Fonte, D.D.S . , was licensed to practice dentistry in

the state of Florida.

2 . Petitioner Department of Health (the "Department") has

regulatory jurisdiction over licensed dentists such as

Dr. Fonte . 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

th e dentist has committed a disciplinable offense.

3. Here , the Department alleges that Dr. Fonte committed

three such offenses . In Count I of the Administrative

Complaint, the Department charged Dr. Fonte 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 J.S. In Count II, Dr. Fonte was charged with

committing fraud, deceit, or misconduct in the practice of

dentistry, an offense under section 466. 028(1)(t). In support

of this charge, the Department alleged that, as part of a

systematic scheme to defraud patients, Dr. Fonte had sought

payment from J.S. for services not actually rendered, and had

done the same to "Patients P.W., J.M., E.T., A.C., A. H., F.C.,

M.S., D.L. and/or as many as 500 additional patients . . . ."

In Count III, the Department charged Dr. Fonte with having

caused a dental office to be operated in such a manner as to

result in dental treatment that is below minimum acceptable

sta ndards of performance for the community, which is an offense

defined in section 466.028(1)(ff).

4 . The events giving rise to this case began in the summer

of 200 8 , when a young adult named J.S. went to the offices of

Advanced Dental Innovations, P.A. ("AD I") for treatment of a

painful tooth. ADI, which was owned by Dr. Fonte, operated a

dental clinic in Royal Palm Beach, Florida . Several dentists

practiced in ADI's premises ÏÏ but not Dr. Fonte himself. He was

employed by the Florida Department of Correct ions as a Senior

Dentist and worked at the Everglades Correctional Institution in

Miami, where he treated the inmates.

5. Dr. Fonte was not actively involved in the daily

business or professional operations of ADI. To manage the

clinic, ADI hired Marth a Somohano, who held a Florida dental

radiographer license and was purportedly experienced in running

dental offices. Dr. Fonte trusted Ms. Somohano to manage the

business competently and protect his investment in ADI.

6. One of the dentists who saw pati ents for ADI was Dr.

Idalmis Ramos - Abelenda. She worked in ADI's offices one day per

week from around April 2008 to April 2009. 2 Although J.S. was

seen by at least one other dentist at ADI's clinic, Dr. Ramos -

Abelenda became his treating dentist of recor d . Dr. Fonte never

saw or treated J.S.

7. During a five - month period, from July through November

2008, Dr. Ramos - Abelenda performed extensive dental work on

J.S., which is documented in handwritten progress notes that ADI

maintained in its records . Base d on the opinion of the

Department's expert witness, which was not disputed, the

undersigned finds that the dental work which J.S. received met

or exceeded the applicable minimum standards of performance.

8. The bills for this dental work eventually total ed

around $ 26,000 . There is no evidence that this amount exceeded

the fair market value of the services rendered . 3 Initially, J.S.

paid for his treatment using a regular credit card, rapidly

incurring a debt of $4,685. Then , J.S. established a credit

ca rd account with CareCredit®, a credit service of GE Money Bank

which provides f inancing for health related costs . Through

CareCredit®, ADI was paid $21,429 for dental services rendered

to J.S . 4

9. A separate CareCredit® account was opened in the name

of J.S.'s mother, D.S. The evidence fails to establish clearly

the extent to which ADI submitted J.S.'s charges to D.S.'s

CareCredit® account for payment , although there is evidence

suggesting that this happened. More important, however, are t he

Department ' s alleg ation s that D.S. never applied for a

CareCredit® credit card , and that someone at ADI forged her

signature on the application.

10. Th e accusation that Dr. Fonte or his agent stole

D.S.'s identity and fraudulently established a line of credit in

h er name is a very serious one , to be sure, but the undersigned

is far from convinced o f its veracity. The proof consists

largely , if not exclusively , o f D.S.'s testimony ÏÏ an awfully

thin evidential ground for this sort of wrongdoing , which should

have lef t an incriminating paper trail . Further, t he Department

did not call a forensic document examiner to testify, for

example, that a questioned document examination had establish ed

that the signature on the CareCredit® application is not D.S.'s ,

or to give a n opinion that the application can be traced to

another known source, e.g. , Ms. Somohano . Thus, even if the

undersigned were able to find based on clear and convincing

evidence that D.S.'s signature had been forged on a credit

application (which he is not ), there is insufficient evidence to

determine who was responsible for the purported fraud, and no

basis for finding that Dr. Fonte was involved in ÏÏ or even awar e

of ÏÏ the alleged misdeed.

11. Much of the Department's case against Dr. Fonte rests

on a "Sin gle Patient Ledger" (the "Ledger") that ADI maintained

in the ordinary course of business , which showed the debits and

credits entered upon J.S.'s account. Recorded on the Ledger are

the dates on which dental services were rendered to J.S., a

brief descri ption of each service, the charge for each service,

payments received, and J.S.'s current balance. The Ledger is

clearly not a dental record or medical history record; it is,

rather, a business record ÏÏ and most likely was prepared

primarily for internal p urposes, as part of ADI's book of

accounts.

12. The Department alleges that the Ledger lists services

that were not rendered to J.S. Plainly, the services shown on

the Ledger are more extensive than those described in the

handwritten progress notes, whi ch are the dental records made by

J.S.'s treating dentists. Based on t he opinion of the

Department's expert witness, which was credible in this regard,

the undersigned finds that the Ledger identifies services that

could not reasonably have b een performed in J.S.'s mouth. The

undersigned further finds, based primarily on the testimony of

Dr. Ramos - Abelenda, that where the progress notes and the Ledger

are in conflict, the progress notes are the accurate record of

the dental services rendered to J.S.

13. That the Ledger lists services not actually rendered to

J.S. does not necessarily mean, however, that a fraud was

committed, as the Department alleges. For one thing, t he

evidence does not clearly and convincingly establish that someone

knowingly falsifi ed the Leger with intent to deceive. The

Ledger's inaccuracies , for instance, might have been the result

of incompetence instead of malice .

14. There is, moreover, insufficient evidence to identify

clearly the person or persons who prepared the Ledge r. The

signs point to Ms. Somohano, who reportedly exercised tight

control over the accounting systems at ADI. Th e evidence fails ,

however, to convince the undersigned that she was the only

person who might have accessed the Ledger. More imp ortant,

ther e is no persuasive ( much less clear and convincing ) evidence

that Dr. Fonte had anything to do with the Ledger. Even

assuming that Ms. Somohano or some other employee of ADI

knowingly falsified the Ledger, there is not a sufficient

evidential basis for fi nding that Dr. Fonte authorized,

ratified, acquiesced to, or even knew about such wrongdoing ,

which affected only a single patient . 5

15. Although the Department alleged that Dr. Fonte had

"engaged in an organized scheme to systematically bill for

dental s ervices that were never rendered," there is no

persuasive evidence that J.S. or any other patients were

"defrauded." Besides J.S., only two patients ÏÏ A.H. and O.R. ÏÏ

gave testimony at the final hearing. There are no allegations

of material fact in the Adm inistrative Complaint which, if

proved, would establish that Dr. Fonte defrauded either A. H. or

O.R., the latter of whom wa s not even identified in the

complaint. 6

16. Pleading deficiencies aside , neither A.H. nor O.R.

gave testimony that clearly and c o nvincingly proved fraud, much

less a fraudulent scheme similar to the one alleged (but not

proved) to have been perpetrated against J.S. Each of them, it

can fairly be said, is a disgruntled former patient of ADI.

Broadly speaking, one or the other, or both, claim to have been

overcharged for services rendered, provided unwanted services,

given shoddy treatment, and administered controlled substances

by someone other than a dentist. None of this was alleged in

the Administrative Complaint. No dental or billing records

concerning either of these patients were offered as evidence.

No expert testimony was given concerning the treatment these

patients received.

17. Indeed, the only expert testimony offered at the final

hearing concerning standards of p erformance came from the

Department's expert, who testified that the treatment J.S. had

received was "fine," and that he had no opinion regarding the

care of any patient other than J.S. Thus, the evidence fails to

establish that the operation of ADI resul ted in dental treatment

that fell below the minimum acceptable standards of performance

for the community.

Ultimate Facts

18 . The evidence is insufficient to prove that Dr. Fonte,

as the owner of ADI, failed to maintain either the original or a

duplicat e of J.S.'s dental records ; to the contrary, ADI

maintained these records . It is a close question , however,

whether the dental records made by J.S.'s dentist of record,

Dr. Ramos - Abelenda, fully satisfied the minimum content

requirements prescribed in Fl orida Administrative Code Rule

64B5 - 17.002(1). Th is question need not be decided, however,

because (a) the owner dentist of a multidentist practice is not

responsible for the content of dental records made by a dentist

of record, and Dr. Fonte was not the dentist of record for J.S.;

and, alternatively, (b) if an owner dentist is responsible for

the content of other dentists' records, his responsibility in

this regard extends only to "employee, associate or visiting

dentists" ÏÏ and the evidence fails to prov e clearly and

convincingly that Dr. Ramos - Abelenda was any of these.

Consequently, Dr. Fonte is not guilty of committing an offense

punishable under section 466.028(1)(m) , Florida Statutes. 7

1 9. The evidence fails to establish clearly and

convincingly th at anyone , much less Dr. Fonte, committed fraud,

deceit, or misconduct in the practice of dentistry. Assuming

such wrongdoing did occur in connection with the treatment and

billing of J.S., however, it was clearly not done by Dr. Fonte

himself, and there was no allegation, nor any persuasive

evidence , that Dr. Fonte directed, approved, or should have

known about an agent's misconduct . Accordingly, Dr. Fonte is

not guilty of committing an offense punishable under section

466.028(1)(t) .

20. Finally, beca use there is no evidence that any patient

of ADI received substandard dental treatment, Dr. Fonte is not

guilty of causing a dental office to be operated in such a

manner as to result in dental treatment that is below minimum

acceptable standards of perfor mance, which is a disciplinable

offense under section 466.028(1)(ff).

CONCLUSIONS OF LAW

21 . The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding pursuan t to

s ections 120.569, and 120.57(1), Florida Statu tes.

22 . A proceeding, such as this one, to suspend, revoke, or

impose other discipline upon a license is penal in nature.

State ex rel. Vining v. Fla . Real Estate Comm ' n , 281 So. 2d 487,

491 (Fla. 1973). Accordingly, to impose discipline, the

Departme nt must prove the charges against Dr. Fonte by clear and

convincing evidence. Dep' t of Banking & Fin., Div. of Sec. &

Investor Prot . v. Osborne Stern & Co. , 670 So. 2d 932, 933 - 34

(Fla. 1996)(citing Ferris v. Turlington , 510 So. 2d 292, 294 - 95

(Fla. 1987) ); Nair v. Dep ' t of Bus . & Pro f ' l Reg . , Bd. of

Medicine , 654 So. 2d 205, 207 (Fla. 1st DCA 1995).

2 3 . Regarding the standard of proof, in Slomowitz v.

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

developed a "workable definition of clear and convincing

evidence" and found that of necessity such a definition would

need to contain "both qualitative and quantitative standards."

The court held that:

clear 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.

Id. The Florida Supreme Court later adopted the Slomowitz

court's description of clear and convincing evidence. See In re

Davey , 645 So . 2d 398, 404 (Fla. 1994). The First District

Court of Appeal also has followed the Slomowitz test, adding the

interpretive comment that "[a]lthough this standard of proof may

be met where the evidence is in conflict, . . . it seems to

preclude evidence t hat is ambiguous." Westinghouse Elec. Corp.

v. Shuler Bros., Inc. , 590 So. 2d 986, 988 (Fla. 1st DCA 1991),

rev . denied , 599 So. 2d 1279 (Fla. 1992)(citation omitted).

24. Disciplinary statutes and rules "must be construed

strictly, in favor of the one a gainst whom the penalty would be

imposed." Munch v. Dep't of Prof'l Reg., Div. of Real Estate ,

592 So. 2d 1136, 1143 (Fla. 1st DCA 1992); see Camejo v. Dep't

of Bus. & Prof'l Reg. , 812 So. 2d 583, 583 - 84 (Fla. 3d DCA

2002); McClung v. Crim. Just. Stds. & Training Comm'n , 458 So.

2d 887, 888 (Fla. 5th DCA 1984)("[W]here a statute provides for

r evocation of a license the grounds must be strictly construed

because the statute is penal in nature. No conduct is to be

regarded as included within a penal statute that is not

reasonably proscribed by it; if there are any ambiguities

included, they must be construed in favor of the licensee.");

see also, e.g. , Griffis v. Fish & Wildlife Conserv. Comm'n , 57

So. 3d 929 (Fla. 1st DCA 2011)(statues imposing a penalty mu st

never be extended by construction).

25. Due process prohibits an agency from taking

disciplinary action against a licensee based on matters not

specifically alleged in the charging instrument. See §

120.60(5), Fla. Stat. ( " No revocation, suspension, annulment, or

withdrawal of any license is lawful unless, prior to the entry

of a final order, the agency has served, by personal service or

certified mail, an administrative complaint which affords

reasonable notice to the licensee of facts or conduct whi ch

warrant the intended action . . . ."); see also Trevisani v.

Dep't of Health , 908 So. 2d 1108, 1109 (Fla. 1st DCA 2005)("A

physician may not be disciplined for an offense not charged in

the complaint."); Marcelin v. Dep't of Bus. & Prof'l Reg. , 753

So. 2d 745, 746 - 747 (Fla. 3d DCA 2000); Delk v. Dep't of Prof'l

Reg. , 595 So. 2d 966, 967 (Fla. 5th DCA 1992)("[T]he conduct

proved must legally fall within the statute or rule claimed [in

the administrative complaint] to have been violated.").

26 . In Count I of the Administrative Complaint, the

Department charged Dr. Fonte u nder s ection 4 6 6.0 28 (1)(m) , which

provides in pertinent part as follows :

(1) The following acts constitute grounds

for denial of a license or discip linary

act ion . . . :

* * *

( 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.

27. In connection with t his charge, the Department alleged

further that Dr. Fonte had not complied with rule 64B5 - 17.002,

which provides, in the parts quoted in the Administrative

Complaint, as follows:

64B5 - 17.002 Written Dental Records; Minimum

Content; Retention.

(1) For the purpose of implementing the

provisions of subsection 466.028(1)(m),

F.S., a dentist shall maintain written

records on each patient which written

records shall contain, at a minimum, the

following information about the patient:

(a) Appropriate medical hist ory;

(b) Results of clinical examination and

tests conducted, including the

identification, or lack thereof, of any oral

pathology or diseases;

(c) Any radiographs used for the diagnosis

or treatment of the patient;

(d) Treatment plan proposed by the de ntist;

and

(e) Treatment rendered to the patient.

28. At hearing, when it became clear that Dr. Fonte had

neither seen nor treated J.S., the Department invoked subsection

(5) of rule 64B5 - 17.002, which provides as follows:

All dental records required b y this rule and

any additional records maintained in the

course of practicing dentistry shall be the

property of the owner dentist of the dental

practice in which the dental patient is seen

or treated and the owner dentist shall be

ultimately responsible f or all record

keeping requirements set forth by statute or

rule.

(a) The owner dentist is responsible for

the records of patients seen or treated by

any employee, associate or visiting

dentists .

(b) Multiple owners will be held equally

responsible for t he records of patients seen

or treated within the dental practice of

that dental group.

(c) An owner dentist is not responsible for

the records of an independent dentist who is

merely leasing or renting space or services

for the operation of a separate de ntal

practice.

(Emphasis added.) The Department contends that, as the owner

dentist, Dr. Fonte is responsible for any deficiencies in the

content of the dental records and medical history records made

during the course of J.S.'s treatment at ADI.

29. A s mentioned above, disciplinary statutes and rules

must be strictly construed against the enforcing authority,

which among other things means that

without a clear, unambiguous provision in

the statute indicating legislative intent to

hold the licensee res ponsible for the

negligent or wrongful acts committed by

another, the administrative agency is not

authorized to extend the effect of the

statute.

McDonald v. Dep't of Prof'l Reg. , Bd. of Pilot Comm'rs , 582 So.

2d 660, 669 (Fla. 1st DCA 1991) (Zehmer, J., specially

concurring). Nothing in section 466.028(1)(m) evinces a

legislative intent to penalize one dentist for the failure of

another to keep dental records and medical history records

justifying the course of treatment of a patient whom the first

dent ist never saw.

30. In contrast, s ection 466.018(4) ÏÏ which the Department

has not charged Dr. Fonte with violating ÏÏ imposes on owner

dentists a record - keeping requirement. This statute provides in

relevant part as follows:

In a multidentist practice of a ny nature,

the owner dentist shall maintain either the

original or a duplicate of all patient

records, including dental charts, patient

histories, examination and test results,

study models, and X rays, of any patient

treated by a dentist at the owner dent ist ' s

practice facility. The purpose of this

requirement is to impose a duty upon the

owner of a multidentist practice to maintain

patient records for all patients treated at

the owner ' s practice facility whether or not

the owner was involved in the patie nt ' s

treatment. This subsection does not relieve

the dentist of record in a multidentist

practice of the responsibility to maintain

patient records.

§ 466.018(4), Fla. Stat.

31. Strictly construing rule 64B5 - 17.002 (5) in favor of

the licensee, and being mindful that discipline should not be

imposed on a licensee for the acts of another absent a clear

statutory warrant, the undersigned concludes that Dr. Fonte's

responsibility for the records of patients treated by other

dentists at ADI is limited to keep ing the records in accordance

with the rule and section 466.018(4) ÏÏ that is, preserving and

maintaining the original or a duplicate of such records. In

sum, Dr. Fonte's duty as an owner dentist involves records

retention ; he is not obligated , as an owner, to create (or

ensure the creation of) dental records which justify the

treatment of other dentists' patients or otherwise meet minimum

content requirements.

32. Alternatively, if rule 64B5 - 17.002(5) could be

construed to obligate an owner dentist to mak e certain that all

dental records concerning patients seen in his multidentist

practice meet minimum content requirements, such responsibility

extends only to "the records of patients seen or treated by any

employee, associate or visiting dentists." Fla. Admin. Code R.

64B5 - 17.002(5)(a).

33. The rule does not define the terms "employee",

"associate" or "visiting . " As these terms are commonly used and

understood, however, none accurately describes Dr. Ramos -

Abelenda, w ho was J.S.'s treating dentist ÏÏ esp ecially when

interpreted strictly in favor of the licensee. To begin, Dr.

Ramos - Abelenda was not an "employee" of ADI because ADI

exercised little or no supervision or control over the details

of her work, paid her a commission (as opposed to a salary or

wage), charged her for laboratory expenses, and expected her to

see patients only one day per week. For similar reasons,

Dr. Ramos - Abelenda was not an "associate" of Dr. Fonte. That

term suggests a close collegial relationship, albeit one in

which th e associate occupies a subordinate position vis - à - vis

the principal or partner. Dr. Ramos - Abelenda did not have such

a relationship with Dr. Fonte or ADI. Finally, the term

"visiting" indicates that the relationship is intended to last

for a limited time only. There is no evidence proving that Dr.

Ramos - Abelenda was visiting at ADI for a specified period.

34. Dr. Ramos - Abelenda described herself as an independent

contractor of ADI , and that is the status which the evidence

most clearly supports. See D ep't of Health v. Webb , Case No.

97 - 1405, 1997 Fla. Div. Adm. Hear. LEXIS 5538, *10 ( Fla. DOAH

Oct. 31, 1997) (dentist who , in exchange for a percentage of fees

received, performed procedures on respondent's patients without

being under respondent's directi on or supervision , was an

independent contractor) . Under rule 64B5 - 17.002(5)(c), an owner

dentist is not responsible for the records of an "independent

dentist." The term "independent dentist" is not clearly

defined. Because Dr. Ramos - Abelenda does not unambiguously come

within any other category o f dentist mentioned in the rule; and

because ambiguities in the rule must be construed in Dr. Fonte's

favor; and because Dr. Ramos - Abelenda was an independent

contractor for ADI, the undersigned concludes that Dr. Ramos -

Abelenda was an "independent dentist" whose records were among

those for which Dr. Fonte is not legally responsible.

35. Consequently, Dr. Fonte is not subject to discipline

under section 466.028(1)(m) based on the alleged deficiencies in

the d ental record s and medical history records relating to

J.S.'s treatment at ADI.

3 6 . In Count II of the Administrative Complaint, the

Department charged Dr. Fonte under section 466.028 (1) (t), which

provide s in relevant part as follows:

(1) The following ac ts constitute grounds

for denial of a license or discip linary

act ion . . . :

* * *

( t ) Fraud, deceit, or misconduct in the

practice of dentistry or dental hygiene.

3 7 . This disciplinary statute does not unambiguously

subject a licensee to puni shment for the acts of another person.

Indeed, to subject a licensee to discipline based solely on

another's misconduct, a statute would need to be exceptionally

clear with regard to the legislative intent; merely authorizing

the imposition of penalties f or an agent's violation of law is

insufficient ÏÏ and section 466.028 (1) (t) does not do even that .

By way of contrast, consider section 56 1 .29(1)(a), which

explicitly provides authority to discipline a liquor licensee

upon a finding of a "[v]iolation by the licensee or his or her

or its agents, officers, servants, or employees . . . of any of

the laws . . . in regard to . . . alcoholic beverages . . . ."

(Emphasis added.) Although a "literal reading of [ the statute ]

would indicate that a liquor licensee is under the onus of

suspension or revocation of his license for any violation of law

committed by his employees on his premises, irrespective of his

own personal fault in connection therewith," Pic N' Save Central

Fla., Inc. v. De p' t of Bus . Reg . , 601 So. 2 d 245, 25 1 (Fla. 1st

DCA 1992) , the courts consistently have declined to read s ection

561.29(1)(a) as a warrant for imposing discipline under the

respondeat superior doctrine. See, e.g. , id. at 249 - 56; Brother

J. Inc. v. Dep't of Bus. and Prof. Reg . , 962 So. 2d 1037 (Fla.

1st DCA 2007) .

3 8 . U nder s ection 56 1 .29(1)(a) as judicially construed,

the prosecuting agency must clearly and convincingly prove

misconduct personal to the licensee to suspend or revoke his

beverage license. Pic N' Save , 601 So. 2d a t 249 - 56. This

means that a liquor licensee cannot be punished unless it is

shown that he personally committed, or is personally culpable

for, a disciplinable offense. Personal culpability attaches,

for example, when a licensee knows, or should know, abo ut the

misconduct of his employees; negligently fails to train or

supervise employees; negligently overlooks, condones, or fosters

the wrongdoing of employees; or fails to exercise due diligence

in preventing misconduct. Id. at 250. 8

39. Thus, even if section 466.028(1)(t) were construed in

favor of the Department (contrary to the applicable principle of

interpretation), it is inconceivable that discipline could be

imposed upon Dr. Fonte in the absence of clear and convincing

proof of fault on his part. In this case, the evidence fails to

establish clearly and convincingly that anyone committed fraud,

deceit, or misconduct in the practice of dentistry ; at most it

provides a basis for strongly suspecting that an employee of ADI

was up to no good . Altern atively, even if the evidence were

sufficient to prove such wrongdoing by an employee or agent of

ADI, there is no persuasive, much less clear and convincing,

evidence that Dr. Fonte authorized, ratified, or knew about the

misconduct. (Even if there were evidence of wrongdoing on

Dr. Fonte 's part, e.g., negligent supervision, which would

suffice to make him vicariously liable for punitive disciplinary

action, the Department did not allege wrongdoing of that nature

in the Administrative Complaint, a plea ding deficiency which

would preclude the imposition of sanctions, see, e.g. , §

120.60(5), Fla. Stat.; and, in any event, section 466.028(1)(t)

does not clearly and unambiguously authorize the imposition of

punishment for fraud, deceit, or misconduct carrie d out by a

licensee's agent.)

40. Because the allegations were not proved, Dr. Fonte is

not subject to discipline under section 466.028(1)(t).

4 1 . In Count III of the Administrative Complaint, the

Department charged Dr. Fonte under section 466.028 (1) ( ff ) , which

provide s in relevant part as follows:

(1) The following acts constitute grounds

for denial of a license or discip linary

act ion . . . :

* * *

( ff ) Operating or causing to be operated a

dental office in such a manner as to result

in denta l treatment that is below minimum

acceptable standards of performance for the

community . This includes, but is not

limited to, the use of substandard materials

or equipment, the imposition of time

limitations within which dental procedures

are to be perfo rmed, or the failure to

maintain patient records as required by this

chapter.

(Emphasis added.)

42. The Department offered no persuasive evidence (and no

expert testimony) showing that any patient received dental

treatment at ADI that was below minimum a cceptable standards of

performance for the community. The only expert testimony

concerning the applicable standards of performance was that of

the Department's expert, who testified that the dental treatment

which J.S. received at ADI was "fine" ÏÏ that is, it met or

exceeded the relevant standards.

43. The Department thus failed to prove an essential

factual element of the offense defined in section

466.028 (1) (ff), namely, that the operation of a dental office

resulted in substandard dental treatment. B ecause this charge

against Dr. Fonte fails as a matter of fact, no further legal

analysis is necessary.

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 Dr. Fonte not guilty of the charges set forth in

the Administrative Complaint.

DONE AND ENTERED this 23rd day of May , 20 1 1 , in

Tallahassee, Leon County, Florida.

S

___________________________________

JOHN G. VAN LANINGHAM

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 23 rd day of May , 20 1 1 .

ENDNOTES

1 / The applicable sections of the Florida Statutes have remained

the same at all times relevant to this case.

2 / The p recise nature of the relationship between ADI and Dr.

Ramos - Abelenda is not entirely clear. Plainly, however, she was

not a salaried employee. Rather, ADI paid Dr. Ramos - Abelenda a

commission of 35 percent of the amounts collected from dental

work she pe rformed for ADI's patients. Moreover, ADI exercised

little or no control over the manner in which she practiced, and

Dr. Ramos - Abelenda used some of her own materials and supplies

to treat ADI's patients. ADI even charged Dr. Ramos - Abelenda

and other den tists working in its offices 50 percent of their

respective patients' laboratory bills for dental restorations

such as crowns and bridges. She considered herself to be an

independent contractor and practiced in other dental offices

besides ADI's under sim ilar arrangements.

3 / The Department's expert witness expressly declined to give an

opinion regarding the reasonable value of the care and treatment

that J.S. received at ADI.

4 / J.S. or his mother later disputed some of these credit card

charges, and Ï Ï according to J.S.'s mother, whose testimony in

this respect is accepted as true ÏÏ CareCredit® eventually

refunded $7,766.

5 / Not only was it not proved that Dr. Fonte, as a principal,

had authorized or ratified the wrongful acts of an agent, but

also the Department had not even allege d such facts.

6 / The Department merely alleged that A.H. and six other

patients (identified by their initials) had given sworn

testimony to the Palm Beach County Sheriff's Office about

"allegations of fraud" similar to thos e the Department has made

with reference to J.S., and that the sheriff had provided the

Department copies of the patients' statements. The problem with

such allegations is that the fact (if established as alleged)

that someone gave a sworn statement accus ing another of fraud

does not prove that fraud was committed; it merely proves that

someone gave a sworn statement accusing another of fraud. To

allege fraud effectively, the alleged wrongdoer's deeds must be

pleaded. Then, if such conduct were proved, i t could be

determined that fraud was committed.

7 / Most of the allegations in the Administrative Complaint

concerning Dr. Fonte's alleged failure to keep dental records

justifying the course of J.S.'s treatment focused on the Ledger,

which was neither a dental record nor a medical history record,

but was instead a business record of ADI whose purposes clearly

did not include justifying the course of the patient's

treatment. The Ledger is thus outside the reach of section

466.028(1)(m), which is plainly n ot designed to subject a

dentist's general business, financial, or accounting records to

scrutiny.

8 / In this respect, the law governing administrative discipline

conforms to the common law principles governing civil liability.

In Florida, "[b] efore an employer may be held vicariously liable

for punitive damages under the doctrine of respondeat superior,

there must be some fault on his part ." E.g. , Mercury Motors

Express v. Smith , 393 So. 2d 545, 549 (Fla. 1981) (The " plaintiff

[must] allege and prove so me fault on the part of the employer

which foreseeably contributed to the plaintiff's injury to make

him vicariously liable for punitive damages. " ).

COPIES FURNISHED :

Jeff G. Peters , Esquire

Department of Health

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399 - 3265

Orlando Rodriguez - Rams, Esquire

Lorenzo & Rodriguez - Rams

9192 Coral Way, Suite 201

Miami, Florida 33165

Sue Foster , Executive Director

Board of Dentistry

Department of Health

4052 Bald Cypress Way , Bin C - 08

Tallahassee, Florida 32399 - 3258

E. Renee Alsobrook, Acting General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

T allahassee, 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 agen cy that

will issue the Final Order in this case.