A recommended order by an administrative law judge to revoke a dentist’s license for possessing child pornography did not bear ample factual foundation, the Third District Court of Appeal of Florida held (Borges v. Department of Health). In an August 13 ruling, the appellate court reversed and remanded the state dental board’s revocation of the license.

The case goes back to May 17, 2007, when dentist Gustavo Borges was charged with knowingly receiving child pornography. Borges was sentenced to 71 months in prison, along with five years of supervised release, and was ordered to pay a $5,000 fine. Borges was released from prison on November 27, 2012, classified as a sexual offender.

The Florida Board of Dentistry revoked Borges’ license in May 2013 on the recommendation of administrative law judge Todd Resavage. Borges appealed.

The case raises the critical and controversial issue of whether a child pornography conviction is directly related to professional practice.

Testimony from eight lay witness and four expert witnesses was given. The order of the ALJ, from which the board reaches a decision, relied solely on an alleged admission by Borges’s attorney to confirm a connection between knowingly receiving child pornography and the practice of dentistry.

Borges claimed that that statement was taken out of context, and that throughout the hearing his attorney argued that the crime was not related to the practice of dentistry. The judge agreed. “How [does receiving the electronic images on a computer] relate to his ability to practice? It doesn’t. It’s not related at all,” asked district court judge Thomas Logue. He concurred with Borges that no concession of linkage between child pornography and dentistry was given, and that the attorney’s statement was taken out of context

“Such a statement does not constitute a sufficient factual foundation” for the board to revoke Borges’s professional license, the judge concluded.

Judge Logue also wondered why the ALJ decided not to include the testimony of the other witnesses in his decision. Perhaps the ALJ found the testimony irrelevant or disingenuous, but conclusions cannot be reached without proper factual basis, the judge said.

The issue of whether child pornography relates to the practice of dentistry “seems to have been the subject of most of the testimony of expert witnesses, which agreed on some points and disagreed on others. This issue was also addressed by lay witnesses. But … The order makes no fact findings regarding the testimony on this point.”

© 2014 Professional Licensing Report, published by ProForum, a non-profit research group, www.plrnet.org. Reprinted by permission.

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