82-001863 Board Of Dentistry vs. John H. Lebaron Status: Closed Recommended Order on Wednesday, December 8, 1982.

Summary: Dismiss compalint with prejudice because Petitioner's decision to allow attorneys at panel hearing discussion action to take against Respondent.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF PROFESSIONAL )

REGULATION, BOARD OF DENTISTRY, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1863

)

JOHN H. LeBARON, D.D.S. )

)

Respondent. )

_________________________________)

ORDER OF DISMISSAL

1. An evidentiary hearing was held in this cause on Respondent's Motion to

Dismiss the Administrative Complaint herein, at Tallahassee, Florida, on

November 12, 1982, attended by Salvatore A. Carpino, Esquire, counsel for

Petitioner, and George L. Waas, Esquire, co-counsel for Respondent. An

Administrative Complaint against Respondent was filed by Petitioner Department

of Professional Regulation, Board of Dentistry, on May 27, 1982, alleging that

Respondent had violated subsections 466.028(1)(n), (u) and (y), Florida

Statutes, by exercising influence on a patient in a manner to exploit the

patient for financial gain, by committing fraud in the practice of dentistry,

and by failing to meet the minimum community standards in the construction of

dentures. The case was thereafter referred to this Division pursuant to

subsection 120.57(1), Florida Statutes. On August 16, 1982, Notice of Hearing

was issued for a hearing to be held on October 20, 1982.

2. On September 13, 1982, Respondent filed a Request for Production of

Documents requesting Petitioner to produce the tape recording of the Probable

Cause Panel's meeting pertaining to the Respondent, and, on the same date, filed

a Motion to Expedite Discovery which was granted by ORDER, dated September 22,

1982, which provided that the time for responding to pending discovery requests

was shortened to on or before October 4, 1982.

3. By letter dated October 7, 1982, to counsel for Respondent, a staff

attorney for Petitioner confirmed that the allegations that Respondent had

violated subsections 468.028(1)(n) or (u), Florida Statutes, would not be

pursued at the final hearing.

4. By Motion to Dismiss Administrative Complaint, dated October 11, 1982,

Respondent contended that Petitioner had refused to produce the transcript or

tape recording of the Probable Cause Panel's proceedings, and that therefore

Petitioner had failed to show compliance with subsections 455.203(7) and

455.225(3), Florida Statutes.

5. On October 14, 1982, Petitioner responded to Respondent's Request for

Production of Documents stating that Petitioner was not in possession of the

tape recording of the Probable Cause Panel meeting of the Board and that

Petitioner could not be required to obtain documents from the Board because the

Petitioner was the Department of Professional Regulation and not the Board of

Dentistry, and that departmental counsel did not represent the Board.

6. By ORDER, dated October 19, 1982, Petitioner was directed within ten

days to provide Respondent with the requested transcript or tape recording or,

in the absence of same, to provide other evidence that the proceedings of the

Probable Cause Panel complied with subsection 455.225(3), Florida Statutes.

Ruling on the Motion to Dismiss was reserved pending such submission and any

response by Respondent within five days from receipt of same. The ORDER further

cancelled the hearing scheduled for October 20, 1982.

7. Petitioner thereafter on October 22, 1982, took the depositions of the

members of the Probable Cause Panel in Respondent's case at Tampa, Florida.

Notices of taking the depositions were provided Respondent's counsel on the same

date. Due to the inadequate notice, Respondent's counsel were not present when

the witnesses were deposed. At the motion hearing, Petitioner offered the

depositions in evidence and, over objection, they were received for the sole

purpose of supplementing other evidence.

8. Subsection 455.203(7), F.S., provides as follows:

455.203 Department of Professional

Regulation; powers and duties.--

The Department of Professional Regulation

shall:

* * *

(7) Require all proceedings of any board or

panel thereof within the department and all

formal or informal proceedings conducted by

the department or a hearing officer with

respect to licensing or discipline to be

electronically recorded in a manner

sufficient to assure the accurate

transcription of all matters so recorded.

9. Section 455.225, F.S., provides pertinently as follows: 455.225

Disciplinary proceedings.--

(2) The department shall expeditiously

investigate complaints. When its

investigation is complete, the department

shall prepare and submit to the probable

cause panel of the appropriate regulatory

board the department's investigative report.

The report shall contain the investigative

findings and the recommendations of the

department concerning the existence of

probable cause.

(3) The determination as to whether probable

cause exists shall be made by a majority

vote of a probable cause panel of the board,

or by the department, as appropriate. . . .

The probable cause panel or the department,

as may be appropriate, shall make its

determination of probable cause within 30

days after receipt of it by the department's

final investigative report. . . If probable

cause is found to exist, the department

shall file a formal complaint against the

regulated professional or subject of the

investigation and prosecute the complaint

pursuant to the provisions of chapter 120.

10. The evidence adduced at the hearing establishes that the proceedings

of the Probable Cause Panel were recorded in conformance with subsection

455.203(7), and that the provisions of subsections 455.225(2) and (3) were

followed in arriving at a determination of probable cause. The transcript of

the tape recording of the meeting of the Probable Cause Panel, which was

produced at the hearing pursuant to subpoena directed to the Executive Director

of the Board, reflects that the panel members made a reasoned determination to

find probable cause after discussion and evaluation of the case. The

departmental investigative report had been provided to the individual panel

members some ten to fifteen days before their meeting, and they have

acknowledged that they considered the same in arriving at their determination.

Although the transcript of the tape recording is somewhat ambiguous as to

precisely what alleged violations of Chapter 466, Florida Statutes, were the

subject of the probable cause determination, the minutes of the panel

proceedings specify that probable cause was found "under, but not limited to,

Chapter 466.028 (1), d, n, u, y, bb." It is thus determined that the

proceedings of the panel meet the test set forth in the recent case of Kibler v.

Department of Professional Regulation, 418 So.2d 1081 (Fla. 4th DCA 1982), that

"To sustain a probable cause determination there must be some evidence

considered by the panel that would reasonably indicate that the violation

alleged had indeed occurred."

11. Although the foregoing would ordinarily be sufficient to find that the

procedural steps taken by Petitioner in the processing of this case were in

consonance with the applicable provisions of law, Respondent has presented

another ground for dismissal in his Supplement to Motion to Dismiss and Motion

for Attorney's Fees and Costs filed subsequent to the evidentiary hearing, to

which Petitioner has not responded. Therein, Respondent points to the fact that

the transcript of the Probable Cause Panel meeting shows that the Department's

prosecutor attended the meeting and recommended that the panel find probable

cause to issue an administrative complaint against the Respondent. Although the

investigative documents attached to the depositions taken by Petitioner indicate

that the staff of the Department had recommended that the complaint against

Respondent be dismissed and that only a letter of caution be sent to the

Respondent, the prosecutor stated to the panel that the Department's present

position was to prosecute first offenses of incompetency on the part of

licensees. Counsel for the Board, an assistant attorney general, was also

present at the meeting.

12. Respondent contends, and the Hearing Officer concurs, that the

presence of and advice given by the prosecuting counsel at the panel meeting

violated subsection 455.221(2), F.S., which provides that ". . . no attorney

employed or utilized by the department shall prosecute a matter and provide

legal services to the board with respect to the same matter." Although it is

recognized that subsection 455.225(2) directs the Department to provide its

investigative findings and recommendations concerning the existence of probable

cause to the panel, it is equally apparent that the departmental attorney

prosecuting a matter is proscribed by subsection 455.221(2) from providing

advice to the Board, which necessarily includes its Probable Cause Panel, with

respect to the same case. It is therefore concluded that the proceedings were

tainted by the presence and advice rendered by the prosecutor, and it is

unnecessary to determine the extent to which his statements to the panel may or

may not have influenced their ultimate determination. The "appearance of evil"

is sufficient to nullify the otherwise proper proceedings of the panel. As

stated in Kibler, supra,

"The adherence to rules and statutes by the

very agency charged with their enforcement

is especially necessary if the public and the

parties regulated are to maintain respect

and confidence in the decisions rendered by

the agency. . ."

13. It should also be noted that throughout the discovery process in this

case, Petitioner's counsel has contended that he represents only the Department

and not the Board. This position is untenable. The Administrative Complaint

was styled in the names of both the Department and the Board. The language of

subsections 455.203(7) and 455.207(1), refer to the Board as being "within" the

Department of Professional Regulation. It is true that Chapter 455 contains

various provisions permitting the Department to challenge actions taken by the

boards and vice versa, but in disciplinary proceedings, it is inescapable that

the two entities are so intertwined in the decision-making process as to make

them virtually one and the same for all practical purposes. Normally, the

Department prosecutes only after a probable cause determination is found by a

panel of the Board, and it is therefore, in effect, prosecuting in behalf of the

Board which will ultimately issue the final order in the matter. The Department

therefore is charged with complying with requirements of the discovery process

directed to any relevant matters pertaining to the case whether generated by the

Department itself or the Board. In short, the Department is simply the

prosecutive arm of the Board with respect to a particular administrative

disciplinary proceeding of this type.

14. In view of the foregoing, it is

ORDERED:

1. That Respondent's Motion to Dismiss is GRANTED, and this cause is

DISMISSED without prejudice, and the file of the Division is hereby closed.

2. Respondent's Motion for Attorney's Fees and Costs is DENIED.

DONE and ORDERED this 8th day of December, 1982, in Tallahassee, Florida.

___________________________________

THOMAS C. OLDHAM

Hearing Officer

Division of Administrative Hearings

The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

[phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 8th day of December, 1982.

COPIES FURNISHED:

Salvatore A. Carpino, Esquire

Department of Professional

Regulation

130 North Monroe Street

Tallahassee, Florida 32301

George L. Waas, Esquire

1114 East Park Avenue

Tallahassee, Florida

Mark Green, Esquire

Funk and Green

1020 Atlantic Bank Building

Jacksonville, Florida 32202

Fred Varn, Executive Director

Board of Dentistry

130 North Monroe Street

Tallahassee, Florida 32301