18-000659PL Department Of Health, Board Of Dentistry vs. Matthew Moye, D.D.S. Status: Closed Recommended Order on Thursday, June 14, 2018.

Summary: Petitioner proved that Respondent's DUI was evidence of recklessness and poor judgment that related to the practice of dentistry.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

D EPARTMENT OF HEALTH,

BOARD OF DENTISTRY ,

Petitioner,

vs. Case No. 1 8 - 0659 PL

MATTHEW MOYE, D.D.S. ,

Respondent.

_______________________________/

RECOMMENDED ORDER

On April 23, 2018 , a final hearing was held in Tallahassee ,

Florida, before E. Gary Early , an Administrative Law Judge

assigned by the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Octavio Simoes - Ponce , Esquire

John A. Wilson , Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, F lorida 32399 - 3265

For Respondent: Edwin A. Bayó, Esquire

Paul Drake, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

ST ATEMENT OF THE ISSUE S

The issue s to be determined are whether Driving Under the

Influence (DUI) with property or personal d amage and DUI

manslaughter, are crimes that relate to the practice of, or the

ability to practice, dentistry, within the meaning of section

46 6.028(1)(c) , Florida Statutes, as alleged in the First Amended

Administrative Complaint and, if so, the appropriate penalty.

PRELIMINARY STATEMENT

On January 23 , 2018 , Petitioner , Department of Health

(Department or Petitioner ) , filed its First Amended

Administrative Complaint (Administrative Complaint) against

Respondent , Matthew Moye , a licensed doctor of dental surgery .

The complaint charged Respondent with having pled guilty and

having been convicted of two counts of misdemeanor DUI with

property or personal damage and two counts of felony DUI

manslaughter, alleged to be crimes that relate to the practice

of, or the ability to practice, dentistry , in violation of

section s 4 56.072(1)(c) and 466.028(1)(c) and ( mm) .

On February 1, 2018, Respondent filed a Petition for

Hearing Involving Disputed Issues of Material Fact (Petition) in

which he disputed that the crimes pled in the Administrative

Complaint related in any manner to his practice of dentistry, or

that they serve as a reasonable indication of Respondent's

abilit y to safely practice dentistry , and requested an

administrative hearing.

On February 9, 2018 , the P etition was referred to the

Division of Administrative Hearings. The final hearing was

scheduled for April 23, 2018 .

On April 13, 2018, Petitioner filed a Request for Official

Recognition/Judicial Notice with regard to a number of Florida

Statutes, Florida Administrative Code rule s, Florida state

appellate court opinions, and the certified court records in

Hillsborough County Case Number 10 - CF - 016865 . The Request was

granted on the record of the final hearing. At the final

hearing, Respondent requested official recognition of a final

order in Department of Health Case No. 2002 - 25325. The request

was granted.

On April 18, 2018, the parties filed th eir Joint Pre -

hearing Stipulation (JPS) , which contained 10 stipulated facts.

Those facts have been incorporated in this Recommended Order.

The JPS also contained nine stipulations regarding issues of law

on which there was agreement. Those stipulations , which are

determined to accurately set forth applicable issues of law , are

incorporated in this Recommended Order. Among the issues of law

was a stipulation that PetitionerÓs expert witness is qualified

to testify as to the practice of dentistry in Flor ida , and he is

so accepted .

The final hearing was convened on April 23, 2018. A t

hearing, the Department offered the testimony of Jay Andrew

Johnson, D.D.S. who is, by stipulation and credentials , accepted

as an expert in the practice of dentistry. The D epartment

o ffered PetitionerÓs Exhibit s A through C in evidence.

Petitioner Ós Exhibit B is the deposition transcript of

Respondent. Respondent is currently incarcerated, and was

unavailable to attend the hearing , and is a party to this

proceeding. The use of the deposition is authorized by Florida

Rules of Civil Procedure 1.330(a) and Florida Administrative

Code Rule 28 - 106.206 , and will be considered and given weight as

though Respondent testified in person at the final hearing.

Respondent offere d no witnesses , and one exhibit .

The one - volume final hearing T ranscript was filed on

May 4, 2018 . Both parties timely filed P roposed R ecommended

O rder s that were considered in preparation of this Recommended

Order.

This proceeding is governed by the law in effect at the

time of the commission of the acts alleged to warrant

discipline , i.e., RespondentÓs November 7, 2013 , plea and

convi ction. See McCloskey v. DepÓt of Fin. Servs. , 115 So. 3d

441 (Fla. 5th DCA 2013). Thus, references to statutes are to

Florida Statutes (201 3 ), unless otherwise noted.

FINDINGS OF FACT

1. The Department of Health, Board of Dentistry , is the

state agency charged with regulating the practice of dentistry

in th e s tate of Florida, pursuant to section 20 .43 , and

chapters 456 and 4 6 6 , Florida Statutes.

Stipulated Facts

2. At all times material to this proceeding, Respondent,

Matthew Moye, D.D.S., was a dentist within the State of Florida,

having been issued license number DN16032 on August 2, 2002.

3 . RespondentÓs address of record with the Department is

Marion Correction al Institution, Post Office Box 158, Lowell,

Florida 32663.

4. Respondent began his private dental practice, Big Bend

Dental, in 2009.

5. Respondent offered the following procedures in his

pract ice: composit e fillings; crown and bridge work , including

preparing teeth for crowns ; root canals; dentures; extractions ,

including mol ar and wisdom teeth extractions; Botox; and lip

fills.

6. Respondent has never been the subject of a disciplinary

actio n against his license to practice dentistry.

7 . On or about October 31, 2010, while under the influence

of alcohol, Respondent was involved in a motor vehicle collision

in which he lost control of his vehicle on the Harbor Island

Bridge in Tampa, Florida .

8 . Respondent struck three people with his vehicle,

killing two, and caused property damage.

9 . On November 7, 2013, Respondent pled guilty to, and was

co nvicted of, two counts of first - degree misdemeanor DUI with

Property or Personal Damage and two counts of secon d - degree

felony DUI Manslaughter based on the above incident.

10 . RespondentÓs sentence included:

a. 12 years of incarceration;

b. 10 years of probation following release from

incarceration; and

c. Permanent revocation of driverÓs li cense.

1 1 . Respondent has not practiced dentistry since being

incarcerated.

Other Findings of Fact

12 . Dr. Johnson testified that dentists operate from a

position of trust, and that there is an expectation of

professionalism and good judgment on the pa rt of persons holding

a license to practice dentistry. Upon his review of the police

reports and court documents related to RespondentÓs crime, he

opined that the acts described therein evince recklessness and a

lack of good judgment. As a result, he bel ieved that the crimes

affected RespondentÓs practice or ability to practice dentistry.

13 . On cross - examination, Dr. Johnson candidly admitted

that his opinion as it related to DUI Manslaughter was based on

how he felt about th at c rime, and on his pers onal principles .

He reviewed no journals or professional publications . He did

not review court decisions or Board of Dentistry final orders.

He was aware of no general con s ensus in the dental community as

to whether DUI Manslaughter is a crime related to the practice

or ability to practice dentistry. He had no training in

substance abuse impairment, and could not state whether a single

DUI could be used to diagnose alcohol abuse or impairment. As

to evalu ating whether an act affects the practice of dentistry,

Dr. Johnson testified that Ðat some point along the way, thereÓs

always going to be personal opinion. You know, could be

somebody like mine. Could be a personal opinion on the Board of

Dentistry.Ñ

14 . What is clear from the totality of Dr. JohnsonÓs

testimony is that his opinions reflect his personal belief as to

whether DUI Manslaughter affects the practice or ability to

practice dentistry, an opinion influenced by his self - perception

as Ða very b lack - and - white person.Ñ Despite the stipulation as

to his expertise, Dr. Johnson could identify nothing in his

education or experience that made him an expert in crimes that

affect the practice of dentistry, other than his years as a n

experienced, well - re garded , and respected oral and maxillofacial

surgeon.

15 . The legislatureÓs 2013 amendment of section 90.702 ,

Florida Statutes , was intended to replace the Frye standard of

opinion testimony, which allows Ðpure opinionÑ testimony, with

the Daubert stan dard, which does not. C hapter 2013 - 107,

sections 1 and 2, Laws of Florida . In 2017, the Supreme Court

declined to adopt the legislative change under its authority

over procedural matters in Florida courts. In re : Amendments to

the Fla. Evidence Code , 21 0 So. 3d 1231 (Fla. 2017). Whether

the Supreme CourtÓs decision to decline to adopt the

LegislatureÓs Daubert amendment bears on the issue at DOAH, an

executive branch agency, is an interesting question, but one for

another day. In this case, Dr. JohnsonÓs testimony comes down

to a matter of weight. Were his testimony di rected to a

particular standard - of - care on the part of a licensed dentist,

the undersigned would have no problem accepting his years of

experience as a suitable basis for an opinio n on that issue.

16 . Dr. JohnsonÓs opinion that the ÐactÑ of deciding to

drive a vehicle while intoxicated is evidence of recklessness or

lack of judgment that can reasonably affect the ability to

practice dentistry. However, D r. JohnsonÓs subjective b elief

that the unintentional outcome of that act evinces a greater

lack of trustworth i ness, or shows a higher degree of reckless

behavior or poor judgment, does not rise to the level of

competent, substantial evidence to support a finding that DUI

Manslaug hter is any more related to the practice of dentistry

than is a DUI .

17 . There is insufficient evidence to support a finding

that the act of driving under the influence of alcohol ,

regardless of the outcome of that act, is directly related to

Responden tÓs ability to provide effective and safe treatment of

his patients.

18 . As it pertains to this case, the behavior that

reflects on Respondent was his decision to get behind the wheel

of his car while intoxicated. That is the conduct for which

there is some evidence that demonstrates that Respondent

exhibited Ðreckless behavior Ñ and a Ðl a ck of judgment.Ñ

19 . Counsel for Petitioner presented a well - researched and

articulate analysis of the reasons underlying the legislatureÓs

policy d ecision to classify incidents of impaired driving

resulting in death as manslaughter . The basis for that policy

decision is that a death resulting from DUI is the result of a

presumptively negligent and culpable act , i.e., getting behind

the wheel of a ve hicle . However, the cases cited by Petitioner

highlight the Ðpolicy choiceÑ made by the Legislature to impose

a heightened penal t y for a DUI that results in death . The

citation to State v. Hubbard , 751 So. 2d 552 (Fla. 1999), is

certainly apropos, and wo rthy of repeating:

We recognize that the Legislature accords

disparate treatment to DUI and DUI

manslaughter, for example. On the one hand,

driving while drunk is a misdemeanor which

requires at least three convictions to earn

a year's imprisonment. § 31 6.193(2)(a)

2.c., Fla. Stat. (1995). It will only

become a third - degree felony carrying a

potential of five years' imprisonment upon a

four th or subsequent conviction.

§ 316.193(2)(b), Fla. Stat. (1995). In

contrast, a drunk driver whose operation of

hi s or her automobile causes the death of

another is guilty of a second - degree felony,

carrying a potential fifteen - year prison

term. The Legislature clearly has made the

policy choice to impose more severe

sanctions on the drunk driver who kills

someone th an on the drunk driver who is

fortuitously caught before possibly killing

someone. While that may seem a bit unfair,

it is hardly irrational.

Id. at 565 n. 29 . (emphasis added).

20 . There has been no such express legislative Ð policy

choiceÑ here. Rather, as it relates to this case, the

Legislature has chosen to sanction conduct only to the extent

that it relates to the practice of dentistry. 1/

21 . The motivation for legislative policy decisions and

regulatory decisions are entirely different. Se e , Nadia N.

Sawicki, Character, Competence, and the Principles of Medical

Discipline , 13 J. Health Care L. & PolÓy 285, 295 (2010).

( ÐUnlike criminal law, which is aimed at punishing wrongdoers,

or civil law, which is aimed at victim compensation,

professi onal discipline seeks to protect public welfare by

incapacitating or rehabilitating dangerous physicians.Ñ ).

22 . The fact that the Legislature elected to punish DUI

M anslaughter more severely than DUI based on the result of the

act is not sufficient grou nds to impose a di f ferent regulatory

penalty for the same ÐactÑ based on the result. There has been

no express Ðpolicy choiceÑ by the Department that an act is more

worthy of a different regulato ry sanction based on its result .

Again, it is the voluntary act of driving while intoxicated that

reflects on the ability to practice dentistry, not the

unintended , even tragic, result .

23 . The tragic outcome of RespondentÓs reckless act of

driving while impaired, though it certainly affects how

Re spondentÓs behavior is treated from a criminal perspective,

has little to do with whether it affects the clinical quality of

his work, the quality of his patient care, or his ability to

practice dentistry.

24 . The nature of the violation in this case has fairly

been characterized as one of Ðcharacter,Ñ and not Ðcompetence.Ñ

As observed by Professor Sawicki, Ðmany of the most serious

disciplinary actions taken on the basis of criminal convictions

involve criminal misconduct with no immediately apparent im pact

on patient safety or public health.Ñ Sawicki, supra at 304.

25 . The incident here was not shown to have any effect on

RespondentÓs technical qualifications or abilities to practice

dentistry. There was no suggestion that the DUI was the result

of a broader pattern of alcohol abuse that affected RespondentÓs

practice of dentistry at the time of the incident . Given the

terms of his probation after he is released -- neither driving

nor alcohol consumption will be allowed -- there will be no

possibili ty of a recurrence of the violation . Thus, the

violation is directed to societal issues of trust and judgment,

rather than ability and competence .

2 6 . The evidence in this case is sufficient to demonstrate

that the act of driving while impaired is one that generally

demonstrates recklessness and a lack of good judgment , and that

such attributes can be correlated to oneÓs ability to

effectively practice dentistry.

2 7 . The evidence in this case was not sufficient to

demo n strate that the crime of DUI Manslaughter involves any

greater degree of recklessness, or a heightened degree of poor

judgment than does a DUI.

2 8 . Furthermore, the undersigned rejects the contention

that RespondentÓs inability to practice dentistry during his

period of incarceration is a basis for revocation of his

license. Petitioner pointed to no requirement that a licensed

dentist engage in any minimum number of practice hours to

maintain a license. Any necessary practical experience can be

addressed in r easonable conditions as addressed herein.

C ONCLUSIONS OF LAW

A. Jurisdiction

29 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding . §§ 4 56.073 ( 5 ), 120. 569 , and 120.57(1) , Fl a. Stat.

(201 6 ) .

30 . The Department has authority to investigate and file

administrative complaints charging violations of the laws

governing dentists . § 456.073, Fla. Stat.

B. Standards

31 . Section s 4 6 6 .028 (1)( c ) and ( mm ) provide , in pertinent

part, that:

(1) The following acts constitute grounds

for denial of a license or disciplinary

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

* * *

( c ) Being convicted or found guilty of or

entering a plea of nolo contendere to,

regardless of adjudication, a crime in any

jurisdiction which relates to the practice

of dentistry or dental hygiene. A plea of

nolo contendere shall create a rebuttable

presumption of guilt to the underlying

criminal charges.

* * *

( mm ) Violating any provision of this

chapter or chapter 456 , or any rules adopted

pursuant thereto.

32 . Section 4 56 . 072 (1)(c) provide s that:

(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

licenseeÓs profession.

C. Burden and Standard of Proof

33 . The D epartm ent bears the burden of proving the

specific allegations that support the charges alleged in the

Administrative Complaint by clear and convincing evidence.

DepÓt of Banking & Fin., Div. of Sec. & Inv. Prot. v. Osborne

Stern & Co. , 670 So. 2d 932 (Fla. 199 6); Ferris v. Turlington ,

510 So. 2d 292 (Fla. 1987); Fox v. Dep't of Health , 994 So. 2d

416 (Fla. 1st DCA 2008); Pou v. DepÓt of Ins. & Treasurer ,

707 So. 2d 941 (Fla. 3d DCA 1998).

34 . Clear and convincing evidence Ðrequires more proof

than a Òpreponderance of the evidenceÓ but less than Òbeyond and

to the exclusion of a reasonable doubt.ÓÑ In re Graziano ,

696 So. 2d 744, 753 (Fla. 1997). The clear and convincing

evidence level of p roof :

[E]ntails both a qualitative and

quantitative standard. The evidence must be

credible; the memories of the witnesses must

be clear and without confusion; and the sum

total of the evidence must be of sufficient

weight to convince the trier of fact w ithout

hesitancy.

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 i n

confusion as to the facts in issue.

The evidence must be of such weight

that it produces in the mind of the

trier of fact a firm belief or

conviction, without hesitancy, as to

the truth of the allegations sought

to be established.

In re Davey , 645 So. 2d 398, 404 (Fla. 1994) (quoting, with

approval, Slomowitz v. Walker , 429 So. 2d 797, 800 (Fla. 4th DCA

1983)); see also In re Henson , 913 So. 2d 579, 590 (Fla. 2005).

"Although this standard of proof may be met where the evidence

is in conflict, it seems to preclude evidence that is

ambiguous." Westinghouse Elec tric Corp. v. Shuler Bros. ,

590 So. 2d 986, 989 (Fla. 1st DCA 1991).

35 . A proceeding 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). Penal statutes must be construed in terms of their

literal meaning and words used by the Legislature may not be

expanded to broaden the application of such statutes. Thus, t he

provisions of law up on which this disciplinary action has been

brought must be strictly construed, with any ambiguity construed

against Petitioner. Elmariah v. DepÓt of Bus. & ProfÓl Reg. ,

574 So. 2d 164, 165 (Fla. 1st DCA 1990); see also Griffis v.

Fis h & Wildlife Conserv. Comm'n , 57 So. 3d 929, 931 (Fla. 1st

DCA 2011); Beckett v. DepÓt of Fin. Servs. , 982 So. 2d 94, 100

(Fla. 1st DCA 2008); Whitaker v. DepÓt of Ins. , 680 So. 2d 528,

531 (Fla. 1st DCA 1996); Dyer v. DepÓt of Ins. & Treasurer ,

585 So. 2d 1009, 1013 (Fla. 1st DCA 1991).

36 . The allegations of fact set forth in the

Administrative Complaint are the grounds upon which this

proceeding is predicated. Trevisani v. DepÓt of Health , 908 So.

2d 1108, 1109 (Fla. 1st DCA 2005 ); see also Cottrill v. DepÓt of

Ins. , 685 So. 2d 1371, 1372 (Fla. 1st DCA 1996). Thus, the

scope of this proceeding is properly restricted to those matters

as framed by Petitioner. M.H. v. DepÓt of Child. & Fam. Servs. ,

977 So. 2d 755, 763 (Fla. 2d DCA 2008).

D . Analysis

Count I

37 . Count I of the First Amended Administrative Complaint

alleges that:

Respondent pled guilty to, and was convicted

of, two counts of first degree misdemeanor

DUI with Property or Personal Damage and two

counts of second deg ree felony DUI

Manslaughter, crimes which relate to the

practice of dentistry.

Based thereon, Petitioner alleged that Respondent committed a

crime that Ð relates to the practice of dentistry Ñ in violation

of section 466.028(1)(c).

38 . As set forth in the findings of fact herein, th e act

that reflects Ðreckless behaviorÑ and Ðpoor judgmentÑ was

Respondent getting behind the wheel of his car after a night

out. Thus, Petitioner proved that Respondent violated section

466.028(1)(c ) as alleged in Count I of t he Administrative

Complaint , as a r es ult of his driving under the influence of

alcohol . The record does not support an enhancement of either

the violation or the penalty as a result of the tragic but

unintended consequence of his act.

Count II

39 . Count II of the First Amended A dministrative Complaint

alleges that:

Respondent pled guilty to, and was convicted

of, two counts of first degree misdemeanor

DUI with Property or Personal Damage and two

counts of second degree felony DUI

Manslaughter, crimes that relate to the

practice, or the ability to practice,

RespondentÓs profession.

Based thereon, Petitioner alleged that Respondent committed a

crime that Ð relates to the practice of, or the ability to

practice [dentistry] Ñ in violation of sections 456.072(1)(c) and

466.0 28 (1)(mm).

40 . As set forth in the Findings of F act herein, the act

that reflects Ðreckless behaviorÑ and Ðpoor judgmentÑ was

Respondent getting behind the wheel of his car after a night

out. Thus, Petitioner proved that Responde nt violated section s

456.072(1)(c) and 466.028(1)(mm) as alleged in Count I I of the

Administrative Complaint, as a result of his driving under the

influence of alcohol. The record does not support an

enhancement of either the violation or the penalty as a result

of the tragic but unintended consequence of his act.

41 . The undersigned is cognizant of Department of Health,

Board of Medicine v. Joseph Piotrowski, P.A. , Case No. 11 - 3138PL

(Fla. DOAH Nov. 4, 2011; Fla. DOH Dec. 16, 2011). In that case,

the A LJ concluded that Ð[d]riving while intoxicated by its

nature exhibits a reckless disregard for the lives of those who

may cross one's path. In this instance, the death of a woman

and her unborn child occurred as a result of Respondent's

reckless behavior. The Department has demonstrated a violation

of section 458.331(1)(c) by clear and convincing evidence , Ñ

citing to the following passage from Doll v. Department of

Healt h , 969 So. 2d 1103, 1106 ( Fla. 1st DCA 2007 ):

Several 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

Profession al Regulatio n , 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 acc ountant'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 a ccounting. 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 Podiatr y ,

that a conviction for conspiracy to import

marijuana is directly related to the

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

pract ice chiropractic medicine.

The Recommended Order and Final Order in Piotrowski do not

establish the factual basis for the determination that DUI

Manslaughter was considered to be a crime directly related to

the practice or the ability to practice dentistr y. As stated

herein, the evidence in this case supports, barely, that the two

counts of DUI exhibited recklessness and a lack of judgment that

reflects on RespondentÓs ability to practice dentistry. 2/

However, the evidence does not support a finding that the crime

of DUI Manslaughter warrants a heightened violation or a penalty

beyond that of the act of the DUI.

E . Penalty

42 . Pursuant to section 456.072(2), the Board of Dentistry

may impose one or more of the following penalties: suspension

or permanent revocation of a license; restriction of practice of

license; imposition of an administrative fine; issuance of a

reprimand or letter of concern; placement of the licensee on

probation for a period of time; corrective action; and remedial

educatio n.

43 . Florida Administrative Code Rule 64B 5 - 13 .00 5 ( 1 )( c )

establishes the range of penalties against an existing license

for a first offense of s ection 466.028(1)(c) or section

4 56.072(1)(c) as a minimum of a $1,000 fine, to a maximum of two

years Ó suspen sion ; two years Ó probation with conditions and

$10,000 fine ; or revocation .

44 . Florida Administrative Code Rule 64B5 - 13.005(1) (ll)

establishes the range of penalties against an existing license

for a first offense of section 466.028(1)( mm) as a minimum o f a

$ 750 fine, to a maximum of probation with conditions and $10,000

fine.

45 . Rule 64B 5 - 13.005(2) establishes the following

aggravating and mitigating circumstances :

(a) The danger to the public ;

(b) The number of specific offenses, other

than the offense for 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

reversibilit y of the 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) Attemp ts by the licensee to correct or

stop the violation or refusal by the

licensee to correct or stop the violation;

and,

(k) Any other relevant mitigating or

aggravating factor under the circumstances.

46 . Given the extremely broad penalty range, deviati on is

not necessary. Nonetheless, the record reflects that Respondent

has practiced as a dentist since 2002 without prior incident,

without any inc ident related to the quality or effectiveness of

the application of his dental skills, and without disciplin ary

action . T he disciplinary action here involved a single

incident, which would constitute mitigati ng circumstances .

Furthermore, included in the terms of his probation upon his

release from prison are conditions that Respondent Ós driverÓs

license will be permanently revoked, and he will be required to

abstain entirely from the use of alcohol. Thus, reasonable and

enforceable measures are in place to ensure that the violation

does not recur. The actual damage caused by the incident was

severe and irreversible, which would constitute an aggravating

circumstance.

Practical Experience

47 . Petitioner argues that, because Respondent is

currently incarcerated, his practical skills will deteriorate

without practice, thereby constituting a basis for revocation.

Having been cited to no specific requirement that a dentist

undertake a minimum nu mber of ÐpracticalÑ cases over any set

period, the suggestion that the inability to treat patients

during his period of incarceration violates a standard of

practice, or constitutes a basis for revocation, is simply

unsupported by the evidence or the law.

48 . The evidence establishes that Respondent is

maintaining his continuing education requirements. Any concern

Petitioner may have regarding RespondentÓs practical skills upon

his release from prison after having Ðpaid his debt to societyÑ

can be met by the application of appropriate terms of probation

which, pursuant to rule 64B5 - 13.005( 3 ) (d)2., may include

requiring the licensee to attend additional continuing education

courses or remedial education; requiring the licensee to pass an

examination; and requiring the licensee to work under the

supervision of another licensee. Such measures are sufficient

to provide assurance as to RespondentÓs skills and, as

importantly, are established by rule.

Applicable Comparator s

49 . In recommending a penalty in this case, the

undersigned has reviewed actions taken by the Board of

Dentistry, in order to determine a reasonable and consistently

applied resolution that has been determined by the Board to be

protective of public and patient health, and the practice i n

general.

50 . The closest comparator to the matter involving

Respondent is Department of Health v. Christina Martin, D.D.S. ,

DOH Case No. 2002 - 25325 (Fla. DOH May 25, 2004). In that case,

according to the Administrative Complaint, Respondent was, whil e

intoxicated, involved in a fatal accident involving a

pedestrian, after which she fled the scene. She pled no contest

to DUI and felony Leaving the Scene of an Accident. In a charge

substantially similar to the allegations in this case, the

Administrat ive Complaint alleged that:

RespondentÓs acts of driving under the

influence of alcohol and leaving the scene

of an accident in which she caused the death

of another evince a lack of good judgment,

moral character, and suggests little or no

regard for the life, safety and/or welfare

of the Florida public, to whom, by virtue of

her license to practice dentistry in

Florida, she is bound to protect.

The fact that Dr. Martin fled the scene of her fatal accident

shows a greater degree of consciousness of her o ffense than that

exhibited by Respondent in this case.

51 . In a Stipulation w ith the Board of Dentistry,

Dr. Martin admitted to the facts, and agreed to accept a penalty

consisting of:

a. a reprimand by the Board of Dentistry;

b. a fine of $10,000;

c . reimbursement of costs;

d. completion of an ethics course;

e. a five year suspension of her license,

of which all but 90 days were stayed;

f. 100 hours of community service to

consist of the provision of free dental

care to elderly, incarcerated an d/or

indigent persons, or children or adults

on Medicaid;

g. an evaluation from the Professionals

Resource Network;

h. an audit of Dr. MartinÓs continuing

education courses; and

i. passage of the Laws and Rules

Examination.

In its Final Order, the Board of Dentistry stayed the suspension

of Dr. MartinÓs license entirely, and removed the community

service requirement, replacing it with the requirement that she

complete 10 orthodontic cases to their conclusion without

compensat ion. The Final Order in Department of Health v.

Christina Martin, D.D.S. constitutes the most directly analogous

and comparable case in fact and law to the instant case. There

is no reason why the Department should treat Respondent (who did

not flee the scene of his accident) any more harshly than it

treated Dr. Martin.

52 . Another applicable comparator, though not as directly

analogous as Martin , may be found in Department of Health, Board

o f Dentistry v. John Driggers, D. M.D. , Case No. 06 - 1503PL (Fla.

DOAH Apr. 17, 2007; Fla. DOH July 19, 2007) . In that case, a

d entist wi th a long history of alcohol and drug dependency,

including multiple DUIs and violation of a Physician Recovery

Network Advocacy Contract, and with prior discipline by the

Board of Dentistry, was penalized by a suspension pending a new

PRN evaluation and c ompliance, and a written reprimand. Thus,

the ÐrecklessnessÑ and Ðlack of judgment,Ñ which spanned a much

longer period, with a greater number of incidents, was met with

a penalty that allowed the dentist to continue his practi ce

under adequate supervisio n.

53 . The conditions of RespondentÓs probation should also

be considered in establishing the penalty in this case. The

Order of Probation requires that, upon his release from prison,

Respondent Ðwill work diligently at a lawful occupation,Ñ and

will m ake restitution to various persons and entities,

conditions that will be advanced by RespondentÓs ability to

practice in his trained profession. In addition, Respondent

will have his driversÓ license permanently revoked, and will be

required to abstain fr om alcohol, provid ing assurance that the

act and its predicating cause will not recur . As stated herein,

the crime in this case is one related to the ÐcharacterÑ of

Respondent. It has absolutely nothing to do with his competence

to practice. Thus, there is no reason not to establish a

penalty that will, as with those in Martin and Driggers , allow

Respondent to practice in a manner that will ensure patient

safety and public health .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Department of Health, Board of

Dentistry , enter a final order :

a) determining that Respondent violated sections

4 56.072(1)(c) and sections 466.028 (1)(c) and ( mm) , as a result

of the recklessness and lack of judgment exhibited by his

decision to drive while under the influence of alcohol ;

b) p lacing RespondentÓs license on probation for a period

of one year, to commence upon his release from incarceration ,

with app ropriate terms of probation to ensure RespondentÓs

practical ability to perform dentistry as authorized by rule

64B5 - 13.005(3)(d)2. ;

c ) imposing an administrative fine of $10,000 to be paid

within a reasonable period of time from RespondentÓs release

fr om incarceration ;

d ) requiring reimbursement of costs to be paid within a

reasonable period of time from RespondentÓs release from

incarceration ;

e ) requiring completion of an ethics course;

f ) requiring 100 hours of community service to be

performed concurrently with that required as a condition of

RespondentÓs probation ; and

g ) requiring an evaluation from the Professionals Resource

Network.

DONE AND ENTERED this 14th day of June , 201 8 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

Admin istrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, 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 Hearin gs

t his 14th day of June , 201 8 .

ENDNOTES

1/ The Legislature has established 39 grounds for disciplinary

action in section 466.028(1), none of which are based upon an

unintended but foreseeable consequence of the specified act.

Similarly, section 456.072(1) has established 41 grounds for

disciplinary action (most of which are duplicative of those in

466.028(1)) which are, again, based on the act, and not the

result.

2 / It should be noted that the evidence in this case, despite

its being, for all practical purposes, unrebutted, barely

supported a finding that DUI showed a degree of recklessness and

poor judgment sufficient to support a violation. As it related

to DUI Manslaughter, Dr. JohnsonÓs testimony was based

exclusively on his personal opini on and was , thus , afforded no

weight. That a determination as to whether a crime is related

to the practice of a medical profession is determined by the

facts of a particular case is supported by the following

Department of Hea l th orders :

In Department of Health, Board of Nursing v. Cheryl Ann

Wasconis , Case No. 98 - 1091 (Fla. DOAH Sept. 8, 1998; Fla. DOH

Nov. 17, 1998), the Respondent Ðentered a plea of nolo

contendere to one count of driving under the influence (DUI), an

offense proscribed by Section 31 6.193(1), Florida Statutes.Ñ

Id. , RO at ¶ 2. The Respondent did not testify at hearing, or

offer any explanation for the incident. The ALJ determined that

Ðit cannot be resolved, with the requisite degree of certainty,

that the offense to which Responde nt pled nolo contendere and

was adjudicated guilty was Òa crime . . . which directly relates

to the practice of nursing or to the ability to practice

nursing.ÓÑ As to the crime of DUI, the ALJ concluded that

misdemeanor DUI:

was not a crime which, as a m atter of law,

evidences a lack of honesty, integrity,

baseness or danger to the public welfare . .

. . Rather, it is an offense which may or

may not, depending on the surrounding

circumstances and the Respondent's history,

evidence an impaired practitione r or

represent a danger to the public (i.e.,

because of an abuse of alcohol or narcotics,

the practitioner is unable to practice

nursing with reasonable skill and safety).

Major v. Department of Professional

Regulation , 531 So. 2d 411 (Fla. 3d DCA

1988). Here, there was no proof that

Respondent had a history of alcohol or drug

abuse, or that the subject occurrence

(driving while under the influence) was

other than an isolated incident in

Respondent's personal life. Under such

circumstances, it cannot be concluded that

her conviction Ðdirectly relates to the

practice of nursing or the ability to

practice nursing.Ñ

Id. at ¶ 9. The ALJ recommended dismissal of the Administrative

Complaint. The Final Order approved, adopted, and incorporated

the Recommen ded OrderÓs Findings of Fact and Conclusions of Law.

In Department of Health, Board of Nursing v. Barbara Lynn

Gigeeus Kahn , Case No. 9 7 - 4751 (Fla. DOAH May 8, 1998; Fla. DOH

Feb. 26, 1999 ), the Respondent was convicted of vehicular

homicide, a second - degree felony, pursuant to s ection 782.071,

Florida Statutes. At the time of the hearing, Respondent was

serving six - and - one - half years of imprisonment in the Gadsden

Correctional Institution. The following Findings of Fact are

pertinent here:

20 . The instant case demonstrates no

competent evidence that Petitioner's

conviction directly relates to the practice

of nursing or the ability to practice

nursing.

21. Respondent was not practicing nursing

or even in a professional health care

environmen t at the time of the vehicular

homicide.

22. At base, Respondent was convicted of

being a driver at fault in an automobile

accident, and there is no reason to suppose

that the severe penalty of professional

license revocation sought by the Agency will

pr otect patients or deter nurse - behavior.

23. Respondent has nursing skills that are

vital to the public and to her own

rehabilitation through work release. The

chance[s] of a repeated vehicular homicide

are virtually nonexistent.

24. Although Respondent volitionally drove

a car which killed someone, there is no

evidence whatsoever that she intentionally

set out to commit murder as did

Dr. Greenwald [in Greenwald v. Department of

Professional Regulation , 501 So. 2d 740

(Fla. 3d DCA 1987) rev. den. 511 So. 2d 998

(Fla. 3d DCA 1987), cert. den. 484 U.S. 986,

depravity of mind or disregard for human

life evidenced by the accident itself.

Likewise, there is no special danger

associated with a practicing nurse driving a

car such as was present with Dr. Rush [in

Rush v. Department of Professional

Regulation , 448 So. 2d 26 (Fla. 1st DCA

narcotics after having participated in the

illegal drug trade.

The ALJ concl uded that the evidence was Ðinsufficient to

establish a nexus between the crime of which she was convicted

and either Òthe practice of nursingÓ or Òthe ability to practice

nursing.Ó There is no reason to suppose, upon the evidence in

this case, that Respo ndent would be guilty of mis - , mal - , or

non - feasance in nursing practice or that she would be guilty of

poor professional judgment.Ñ Id. at ¥ 26. The Final Order

approved, adopted, and incorporated the Recommended OrderÓs

Findings of Fact and Conclusions of Law.

In Department of Health, Board of Nursing v. Rita Joy

Gibbons , Case No. 9 0 - 2915 (Fla. DOAH May 21 , 199 5 ; Fla. DOH

_______ ) ( There is no record of a copy of the final order having

been filed with DOAH ) , the Respondent pled no contest to DUI for

an automobile accident involving property damage to other

vehicles and personal injuries to herself . The ALJ concluded

that Ð[t] he proof fails to clearly and convincingly establish

that the crime of which Respondent was convicted, driving under

the influenc e of alcoholic beverages, relates to the practice of

nursing or the ability to practice nursing. Ñ Id. at ¶ 12.

COPIES FURNISHED :

Edwin A. Bayó, Esquire

Paul Drake, Esquire

Grossman, Furlow & Bayó, LLC

2022 - 2 Raymond Diehl Road

Tallahassee, Florida 32308

(eServed)

Octavio Simoes - Ponce, Esquire

John A. Wilson, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way , Bin C - 65

Tallahassee, Florida 32399 - 3265

(eServed)

Jennifer Wenhold, Executive Director

Board of Dentistry

Division of Medical Quality

Assurance Boards/Councils

Department of Health

4052 Bald Cypress Way, Bin C08

Tallahassee, Florida 32399

(eServed)

Nichole C. Geary, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

(eServed)

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.