8.4 The Disciplinary Process: Probable Cause, Penalty Guidelines, Minor Violations & Citations
Key Takeaways
- The probable cause panel is appointed by the Chairman and composed of three members, two of whom must be dentists holding valid active Florida licences.
- At least two panel members must be present to constitute a quorum, and if only two are present, a finding of probable cause requires the affirmative vote of both.
- When an investigation report concerning a dental hygienist or dental radiographer is considered, at least one member must be a current or former dental hygienist Board member if available and willing to serve.
- Rule 64B5-13.0045 designates specified initial violations as minor, including practising for less than two months without an active licence and failing to notify the Board of a change of address.
- Rule 64B5-13.005 sets the Board's disciplinary guidelines, and Rule 64B5-13.0046 provides citation authority for designated violations.
From Complaint to Final Order
Investigation
The Department of Health, through the Division of Medical Quality Assurance, receives complaints, investigates, and prosecutes. The Board of Dentistry adjudicates and imposes sanctions. Section 456.073, F.S., is the governing procedure and Chapter 120, F.S., supplies the due-process framework.
The probable cause panel — Rule 64B5-13.001
Before an administrative complaint may be filed, a probable cause panel must, by majority vote, determine whether probable cause exists to believe a licensee has violated Chapter 456 or 466, F.S., or the rules of the Department or Board.
Composition. Appointed by the Chairman, and composed of three members, two of which must be dentists who hold valid and active dental licences in Florida.
Quorum and voting. "At least two members of the probable cause panel must be present to constitute a quorum. If only two members are present, the determination of probable cause shall require the affirmative vote of both members present."
Membership conditions — Rule 64B5-13.001(2)(a)–(f):
- One or two members may be former dentist or consumer Board members.
- At least one member must be a current Board member who holds a valid and active Florida licence.
- At least one member must be a current or former consumer member of the Board, if one is available and willing to serve.
- When an investigation report concerning a dental hygienist or a dental radiographer will be considered, for those reports only, at least one member must be a current or former dental hygienist member of the Board, if one is available and willing to serve.
- Any former dentist member appointed to the panel must currently hold a valid and active Florida dental licence.
- Panel members serve one year terms but may serve successive terms.
The panel meets as necessary as determined by the Chairman of the Board or the Chairman of the panel.
Election of rights and hearings
If probable cause is found, the Department files an administrative complaint. The licensee then elects, under Chapter 120:
| Election | When appropriate | Forum |
|---|---|---|
| Informal hearing | The licensee does not dispute the material facts alleged | Before the Board of Dentistry, where the licensee may present mitigation |
| Formal hearing | The licensee disputes material facts | Before an Administrative Law Judge at the Division of Administrative Hearings (DOAH), who issues a Recommended Order; the Board then enters a Final Order |
The Board's Final Order is the appealable agency action. Rule 64B5-13.006 governs post board order activity.
Emergency action
Where the Department finds that a licensee presents an immediate serious danger to the public health, safety, or welfare, it may issue an emergency suspension or restriction order under s. 120.60(6), F.S., before the ordinary process concludes.
Disciplinary guidelines — Rule 64B5-13.005
Rule 64B5-13.005, "Disciplinary Guidelines," sets the Board's penalty ranges by violation, together with the aggravating and mitigating circumstances that justify departing from the range. Because the ranges are amended over time and are set out violation by violation, do not memorise specific dollar figures from secondary summaries — read the current rule text at flrules.org. What is stable is the structure: a guideline range per violation, a stated basis for deviation, and the statutory sanction menu of s. 456.072(2).
Minor violations and notices of noncompliance — Rule 64B5-13.0045
Section 456.073(3), F.S., allows the Department to issue a notice of noncompliance for a first-time minor violation rather than prosecuting. Rule 64B5-13.0045 designates which dental violations are minor:
| ¶ | Designated minor violation |
|---|---|
| (a) | Violation of s. 466.026(1)(a) by practising for a period of less than two months without an active licence |
| (b)1. | Violation of s. 466.028(1)(d) by violating Rule 64B5-4.002(2) — the advertising identification requirement |
| (b)2. | Violation of s. 466.028(1)(d) by violating Rule 64B5-4.003(2), (3), (4) or (5) — the fee-advertising rules — so long as there is no allegation of consumer injury and the offending advertisement is capable of being withdrawn from circulation within 15 days of issuance of the notice of noncompliance |
| (c) | Violation of s. 466.028(1)(n) — failure to release records — so long as the records have been released |
| (d) | Violation of s. 466.028(1)(mm) by violating Rule 64B5-17.0011 — failure to notify of a change of address |
| (e) | Violation of s. 466.028(1)(dd) by presigning laboratory work order forms |
Two limits apply. The designation "is limited to initial violations" — a repeat is not minor. And a monthly report of notices of noncompliance issued by the Department shall be reviewed by the Board to monitor the use and success of the procedure.
Paragraph (a) is the one that surprises candidates: a lapse of under two months of practice on an inactive licence is designated a minor violation for notice-of-noncompliance purposes — even though the same conduct is a third-degree felony under s. 466.026(1)(a). The designation governs the Department's administrative response; it does not decriminalise the conduct.
Citations — Rule 64B5-13.0046
Rule 64B5-13.0046, "Citation Authority," is the Board's citation rule, adopted under s. 456.077, F.S. A citation imposes a specified penalty for a designated violation without a formal administrative complaint; it becomes a final order if not disputed within the statutory period. Note the rule number: 64B5-13.0046. Rule 64B5-13.002, "Time for Payment of Administrative Fines," was repealed.
The parallel dental laboratory provisions live in Rule Chapter 64B27-2: 64B27-2.001 Disciplinary Guidelines, 64B27-2.002 Notice of Noncompliance for Minor Violations, 64B27-2.003 Citation Authority, and 64B27-2.004 Mediation.
Where each mechanism fits
| Mechanism | Trigger | Authority |
|---|---|---|
| Notice of noncompliance | Designated minor, initial violation | s. 456.073(3); Rule 64B5-13.0045 |
| Citation | Designated violation with a specified penalty | s. 456.077; Rule 64B5-13.0046 |
| Mediation | Statutorily designated matters | s. 456.078 |
| Administrative complaint | Probable cause found | s. 456.073; Rule 64B5-13.001 |
| Emergency suspension or restriction | Immediate serious danger to the public | s. 120.60(6) |
Under Rule 64B5-13.001, F.A.C., how is the Board of Dentistry's probable cause panel composed?
If only two members of the probable cause panel are present, what vote is required to find probable cause?
Under Rule 64B5-13.0045, F.A.C., which violation is designated as minor for purposes of s. 456.073(3), F.S.?