12-000005PL Department Of Health, Board Of Dentistry vs. Gustavo B. Borges, D.D.S. Status: Closed Recommended Order on Thursday, March 12, 2015.

Summary: Petitioner proved by clear and convincing evidence that Respondent violated section 466.028(1)(ll) by violating section 456.072(1)(c).

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF HEALTH, BOARD OF )

DENTISTRY, )

)

Petitioner, )

)

vs. ) Case No. 12 - 0005PL

)

GUSTAVO B. BORGES, D.D.S., )

)

Respondent. )

)

RECOMM ENDED ORDER

Pursuant to notice, a final hearing wa s held in this case

on December 12, 2012, in Tallahassee, Florida, before Todd P.

Resavage, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Adrienne C. Rodgers, Esquire

Tar i Anne Rossitto - Van Winkle, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

For Respondent: Randall M. Shochet, Esquire

Shochet Law Group

4897 Jog R oad

Greenacres, Florida 33467

STATEMENT OF THE ISSUES

The issues in this case are whe ther Respondent ' s plea and

adjudication of guilt to knowingly receiving child pornography,

in violation of Title 18, United States Code, § 2252A(a)(2)(A),

relat e s to Respondent ' s practice or ability to practice

dentistry, v iolati ng section 466.028(1)(ll) by violating 456.072

(1)(c), Florida Statutes, and if so, the penalty that should be

imposed.

PRELIMINARY STATEMENT

On or about July 29, 2008, the Board of Den tistry, issued

a n Administrative Complaint charging Respondent with vi olating

section 466.028(1)(ll), Florida Statutes, by violating section

456.072 (1)(c) , Florida Statutes, by his plea an d adjudication

of guilt to knowingly receiving child pornography, i n violation

of Title 18, Unite d States Code, § 2252A(a)(2)(A). Respondent

timely requested a formal hearing to contest the allegations,

and, on January 3, 2012, Petitioner Department of Health

referred the matter to the Division of Administrative Hearings

( " DOAH " ) , where it was assigned to Administrative Law Judge John

G. Van Laningham.

The final hearing initially was set for March 13, 2012;

however, Respondent, who was incarcerated, filed an unopposed

motion to continue. The same was granted and the final hearing

was re - scheduled for June 6, 2012.

On May 2, 2012, Respondent filed a Motion to Continue the

final hearing until July 9, 2012. Respondent ' s continuance was

granted and the cause was re - scheduled for final hearing on

July 9, 2012. Respond ent requested another continuance of the

matter on June 19, 2012, and the same was granted re - scheduling

the final hearing for December 12, 2012. This case was

subsequently transferred to the undersigned for all further

proceedings.

The final hearing wa s held on December 12, 2012.

Petitioner presented the testimony of Respondent , and

Petitioner ' s Exhibit 1 was admitted, together with Joint

Exhibits nu mbered J 1 - 13 . Respondent testified on his own

behalf, and Respondent ' s Exhibits 1 and 3 were admitted, over

objection . T he admitted facts contained within the parties

previously filed Joint Pre - Hearing Stipulation were admitted

into evidence.

The final hearing transcript was filed with DOAH on

January 16, 2013. On January 25, 2013, the parties filed a

Joint Motion for an Extension of Time to File and Serve Proposed

Recommended Orders to February 18, 2013, and the same was

granted. Both Parties timely submitted proposed recommended

orders, which the undersigned has considered in the preparation

of thi s Recommended Order. Unless otherwise indicated,

citations to the Florida Statutes refer to the 2007 Florida

Statutes.

FINDINGS OF FACT

1. At all times relevant to this case, Respondent Gustavo

Borges, D.D.S., was licensed to practice dent istry in the state

of Florida, having been issued license number DN 14716.

2. Petitioner Department of Health , Board of Dentistry

(the " Department " ) has regulatory jurisdiction over licensed

dentists such as Dr. Borges. 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 the dentist has committed a disciplinable offense.

3. On May 17 , 2007, the United States Attorney for the

Southern District of Florida filed a one - count Information

against Respondent, alleging that, on or about April 29, 2006,

Respondent " did knowingly receive child pornography, as defined

in Title 18, United States Code, Section 2256(8)(A), that had

been mailed, shipped, and transported in interstate and foreign

commerce by any means, including by computer; in violation of

Title 18, United States Code, Section 2252A(a)(2)(A) . " The case

was filed in the Miami Divisio n of the United States District

Court, Southern District of Florida, and docketed as Case

N o. 07 - 20396 - CR - MGC. 1 /

4. On December 19, 2007, Respondent tendered a plea of

guilty and was adjudicated guilty of one count of knowingly

receiving c hild pornogra phy in violati o n of 18 U.S.C. §

2252(a)(2)(A). Respondent was sentenced to serve seventy - one

months in the United States Bureau of Prisons, followed by five

years of supervised release, and a $5,000.00 fine. 2 /

5. On or about August 7, 2008, Petitioner served

Respondent with an Administrative Complaint charging that

Respondent, by his plea and adjudication of guilt to knowingly

receiving child pornography, in violation of Title 18, United

States Code, § 2252A(a)(2)(A), violat ed section 466.028(1)(ll),

Fl orida Statutes, by violating section 456.072 (1)(c), Florida

Statutes.

6. Respondent was released from prison on November 27,

2012. Pursuant to the terms of Respondent ' s supervised release,

he is precluded from committing any crime; unlawfully possessi ng

controlled substances; possessing a firearm, destructive device,

or any other dangerous weapon ; and must comply with numerous

other standard conditions.

7. In addition to the standard conditions of supervision,

Respondent is mandated to comply with certain special conditions

of supervision that are tailored to the crime for which he was

adjudicated guilty. In general, he is mandated to have no

unsupervised contact with minors; required to participate in a

sex offender treatment program; restricted f rom the possession

of sexually explicit materials; required to maintain a daily log

of his computer activity; directed to refrain from accessing via

computer any material that relates to the activity in which he

was engaged in committing his offense; and i s required to

maintain full - time, legitimate employment, subject to certain

exceptions.

8. Moreover, as a result of his conviction, Respondent is

classified as a sexual offender under s ection

943.0435(1)(a)1.a., Florida Statutes. As such, Respondent ha s

registered as a sexual offender with the Florida Department of

Law Enforcement , as required by section 943.0435(11), and must

maintain such registration, subject to certain exceptions, for

the duration of his life.

9. Respondent, in his Proposed Reco mmended Order, has

conceded that his conviction under 18 U.S.C. § 2252(a)(2)(A) is

a crime related to the ability to practice dentistry, in

violation of section 456.072 (1)(c).

10. Re spondent has no prior disciplinary history

concerning his dental licens e.

11. Respondent has provided volunteer dental services both

locally and internationally, as well as local social work.

CONCLUSIONS OF LAW

12. The Division of Administrative Hearings has personal

and subject matter jurisdiction in this proceeding p ursuant to

sections 120.569, and 120.57(1), Florida Statutes.

13. 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 (F la. 1973). Accordingly, to impose discipline, the

Department must prove the charges against Dr. Gustavo 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) (c iting Ferris v. Turlington , 510 So. 2d 292, 294 -

95)(Fla. 1987); Nair v. Dep ' t of Bus. & Prof ' l Reg., Bd. Of

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

14. Regarding the standard of proof, in Slomowitz v.

Walker , 429 So. 2d 797, 800 (Fla. 4 th DC A 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 requires th at 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 evid ence is in conflict, . . . it seems to

preclude evidence that 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)(citations omitted).

15. Disciplinary statutes and rules " must be construed

strictly, in favor of the one against 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 58 3, 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

revocation 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 Griffis v. Fish & Wildlife Conserv. Comm ' n , 57 So. 3d

929 (Fla. 1st DCA 2011)(statutes imposing a penalty must never

be extended by construction).

16. Due process prohibits an agency from taking

disciplinary actions 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 affor ds

reasonable notice to the licensee of facts or conduct which

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 com plaint. " ); 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 1991)( " [T]he conduct

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

the adminis trative complaint] to have been violated. " ).

17. The Complaint alleges that Respondent " has violated

Section 466.028(1)(ll), Florida Statutes (2007) by violating

Section 456.072(1)(c), Florida Statutes (2007) by being

convicted of Knowingly Receiving Ch ild Pornography in Federal

Court which relates to the practice of dentistry or his ability

to practice dentistry. "

18. Chapter 466 is a special statute concerned with the

regulation of dentists, dental hygienists, and dental

laboratories. Section 466.0 28 sets forth the grounds for

discipline, as well as the action that may be taken by the Board

of Dentistry upon a violation of a disciplinable offense .

19. Section 466.028(1)(ll) , provides as follows :

(1) The following acts constitute grounds

for de nial of a license or disciplinary

action, as specified in s. 456.072(2):

* * *

(ll) Violating any provision of this

chapter or chapter 456, or any rules adopted

pursuant thereto.

20. Chapter 456 sets forth general provisions regarding

regulation of health - care professionals. As noted above, t he

Department alleges Respondent violated section 466.028(1)(11),

by a violation of section 456.072(1)(c) . Section 456.072(1)(c) ,

in turn, provides as follows:

(1) The following acts shall constitute

grounds for which the disciplinary actions

specified in subsection (2) may be taken:

* * *

(c) Being convicted or found guilty of, or

entering a plea of guilty or nolo contendere

to, regardless of adjudication, a crime in

any jurisdiction which relates to the

practice of, or the ability to practice, a

licensee ' s profession.

21. Pursuant to the findings of fact contained herein,

Petitioner has adduced clear and convincing evidence that

Respondent ple d guilty to, and was ultimately adjudicated guilty

of, one count of receiving child pornography in violation of 18

U.S.C. § 2252(a)(2)(A).

22. The remaining issue, therefore, is whether the crime

to which Respondent pled guilty relates to the practice of

dentistry or to the ability to practice dentistry. The practice

of dentistry is defined in section 466.003, Florida Statutes, as

follows:

" Dentistry means the healing art which is

concerned with the examination, diagnosis,

treatment planning, and care of conditions

within the human oral cavity and its

adjacen t tissues and structures. It

includes the performance or attempted

performance of any dental operation, or oral

or oral - maxillofacial surgery and any

procedures adjunct thereto, including

physical evaluation directly related to such

operation or surgery p ursuant to hospital

rules and regulations. It also includes

dental service of any kind gratuitously or

for any remuneration paid, or to be paid,

directly or indirectly, to any person or

agency. The term " dentistry " shall also

include the following:

(a) The taking of an impression of the

human tooth, teeth, or jaws directly or

indirectly and by any means or method .

(b) Supplying artificial substitutes for

the natural teeth or furnishing, supplying,

constructing, reproducing, or repairing any

prosthe tic denture, bridge, appliance, or

any other structure designed to be worn in

the human mouth except on the written work

order of a duly licensed dentist.

(c) The placing of an appliance or

structure in the human mouth or the

adjusting or attempting to adjust the same.

(d) Delivering the same to any person other

than the dentist upon whose work order the

work was performed.

(e) Professing to the public by any method

to furnish, supply, construct, reproduce, or

repair any prosthetic denture, bridge ,

appliance, or other structure designed to be

worn in the human mouth.

(f) Diagnosing, prescribing, or treating or

professing to diagnose, prescribe, or treat

disease, pain, deformity, deficiency,

injury, or physical condition of the human

teeth or jaw s or oral - maxillofacial region.

(g) Extracting or attempting to extract

human teeth.

(h) Correcting or attempting to correct

malformations of teeth or jaws.

(i) Repairing or attempting to repair

cavities in the human mouth.

23. Although the st atutory definition of dentistry does

not , on its face, specifically refer to acts involved in the

crime of knowingly receiving child pornography, that does not

conclude the analysis. Indeed, it is not necessary to evaluate

Respondent ' s " technical ability " to practice dentistry, nor must

Petitioner necessarily demonstrate that Respondent ' s criminal

acts are referenced in the statutory definition of dentistry.

See Doll v. Dep ' t of Health , 969 So. 2d 1103 (Fla. 1st DCA

2007). In Doll , the court held:

Severa l cases demonstrate that, although the

statutory definition of a particular

profession does not specifically refer to

acts involved in the crime committed, the

crime may nevertheless relate to the

profession. In Greenwald v. Department of

Professional Reg ulation , the court affirmed

the revocation of a medical doctor ' s license

after the doctor was convicted of

solicitation to commit first - degree murder.

501 So. 2d 740 (Fla. 3d DCA 1987). The

Fifth District Court of Appeal has held that

although an account ant ' s fraudulent acts

involving gambling did not relate to his

technical ability to practice public

accounting, the acts did justify revocation

of the accountant ' s license for being

convicted of a crime that directly relates

to the practice of public accou nting. Ashe

v. Dep ' t of Prof ' l Regulation, Bd. Of

Accountancy , 467 So. 2d 814 (Fla. 5th DCA

1985). We held in Rush v. Department of

Professional Regulation, Board of Podiatry ,

that a conviction for conspiracy to import

marijuana is directly related to th e

practice or ability to practice podiatry.

448 So. 2d 26 (Fla. 1st DCA 1984). These

cases demonstrate, in our view, that

appellee did not err by concluding Doll ' s

conviction was " related to " the practice of

chiropractic medicine or the ability to

practi ce chiropractic medicine. We

therefore affirm appellee ' s actions finding

appellant in violation of section

456.072(1)(c) and revoking appellant ' s

license.

Doll , 969 So. 2d at 1006; see also Dep ' t of Health, Bd. of

Medicine v. Carter , Case No. 12 - 1575, 2012 Fla. Div. Adm. Hear.

LEXIS 746 (Fla. DOAH Dec. 26, 2012)(citing Doll and concluding

that a guilty plea to possession of child pornography related to

the practice or ability to practice medicine).

24. In analyzing whether a particular crime relates t o the

practice or ability to practice dentistry, the potential danger

to the public is to be considered. T he Rush court ' s discussion

of this concern is instructive. Specifically, the court held :

By confining the convictions upon which

disciplinary actio n may be based to those

directly related to the practice of

podiatry, the Legislature has not limited

the grounds for disciplinary action to only

those crimes which relate to the technical

ability to practice podiatry or to those

which arise out of miscond uct in the office

setting. A conviction for a crime, such as

importing marijuana, which presents a danger

to the public welfare will be adequate basis

for disciplinary action to be taken against

a practitioner.

Rush , 969 So. 2d at 1006 .

25. Section 466.001, Florida Statutes, entitled

" Legislative purpose and intent, " provides in part:

. . . It is the further legislative intent

that dentists and dental hygienists who fall

below minimum competency or who otherwise

present a danger to the public shall be

prohibited from practicing in this state.

All provisions of this chapter relating to

the practice of dentistry and dental hygiene

shall be liberally construed to carry out

such purpose and intent.

26. As noted above, as a result of his conviction,

Respondent is classif ied as a sexual offender under s ection

943.0435(1)(a)1.a., Florida Statutes. Section 943.0435(12),

address es the potential risk sexual offenders pose to the

public:

The Legislature finds that sexual offenders,

especially those who h ave committed offenses

against minors, often pose a high risk of

engaging in sexual offenses even after being

released from incarceration or commitment

and that protection of the public from

sexual offenders is a paramount government

interest.

27. Res pondent h as conceded that the crime of knowingly

receiving child pornography, to which he pled guilty, is a crime

that relates to the ability to practice the profession of

dentistry , in violation of section 456.072(1)(c). Accordingly,

Respondent is subjec t to discipline under section 4 66.028(ll),

as charged in the Complaint.

28. The Board of Dentistry imposes penalties upon

licensees in accordance with the disciplinary guidelines

prescribed in Florida Administrative Code Rule 64B5 - 13.005. The

disciplin ary guideline for Respondent ' s offen ding conduct Ï a plea

and adjudication of guilt to a crime that relates to the ability

to practice dentistry Ï is set forth in rule 64B5 - 13.005(1)(c).

The range of penalties for a first offense is a minimum penalty

of a $1, 000 fine to a maximum penalty of a " denial or two years

suspension, two years probation with conditions and $10,000

fine, or revocation. "

29. Rule 64B5 - 13.005(2) provides direction in the

application of aggravating and mitigating circumstances to the

pen alty guidelines, and provides in pertinent part, as follows:

(2) Based upon consideration of aggravating

or mitigating factors, present in an

individual case, except for explicit

statutory maximum and minimum penalty

requirements, the Board may deviate f rom the

penalties recommended in subsection (1)

above and subsection (3) below. The Board

shall consider as aggravating or mitigating

factors the following:

(a) The danger to the public;

(b) The number of specific offenses, other

than the offense fo r which the licensee is

being punished;

(c) Prior discipline that has been imposed

on the licensee;

(d) The length of time the licensee has

practiced;

(e) The actual damage, physical or

otherwise, caused by the violation and the

reversibility of t he damage;

(f) The deterrent effect of the penalty

imposed;

(g) The effect of the penalty upon the

licensee;

(h) Efforts by the licensee towards

rehabilitation;

(i) The actual knowledge of the licensee

pertaining to the violation;

(j) Attempt s by the licensee to correct or

stop the violation or refusal by the

licensee to correct or stop violation;

(k) Any other relevant mitigating or

aggravating facto under the circumstances.

30. Having consider ed the potenti al aggravating and

mitigating factors, the undersigned does not find compelling

reasons to deviate from the guidelines, and, therefore,

recommends that the Board of Dentistry impose a penalty that

falls within the recommended range.

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. Borges guilty of violating s ection

466.028 (1)(ll) by violati ng section 456.072(1)(c), Florida

Statutes, and revoking his license to practice dentistr y.

DONE AND ENTERED this 11 th day of March, 2013, in

Tallahassee, Leon County, Florida.

S

TODD P. RESAVAGE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Talla hassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11 th day of March , 2013 .

ENDNOTES

1 / RespondentÓs undisputed conduct that initiated the federal

investigation and subsequent prosecution is contained within

Exhibit J - 11.

2 / On September 4, 2008, RespondentÓs judgment was amended, nunc

pro tunc to December 19, 2007, to reflect that Respondent was

permi tted to have supervised contact with minors.

COPIES FURNISHED :

Randall M. Shochet, Esquire

Shochet Law Group

4897 Jog Road

Greenacres, Florida 33467

Adrienne C. Rodgers, Esquire

Department of Health

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399 - 3265

Tari Anne Rossitto - Van Winkle, Esquire

Department of Health

Prosecution Services Unit

Bin C - 65

4052 Bald Cypress Way

Tallahassee, Florida 32399

Susan Foster, Executive Director

Board of Dentistry

Department of Health

Bin C08

4052 Bald C ypress Way

Tallahassee, Florida 32399 - 3258

Jennifer A. Tschetter, General Counsel

Department of Health

Bin A02

4052 Bald Cypress Way,

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written ex ceptions 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.