Petition for a Writ of Certiorari — Cooper v. Florida Board of Dentistry

Supreme Court brief1973

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SUBJECT INDEX

ARGUMENTS:

Federal Question One

Federal Question Two

Federal Question Three

Federal Question Four

CERTIFICATE OF SERVICE

CONSTITUTIONAL AND STATUTORY LAW

INVOLVED

FACTS

FEDERAL QUESTIONS RAISED:

(1) Dade County Circuit Court

(2) Florida State Board of Dentistry

(3) District Court of Appeal, Third

District

(4) Florida Suprene Court

GROUNDS

JURISDICTION

PEARS AN St Arn aos SOM ome Re eee aN NRC 7

: eS eee Se

PPT RI rei

SUBJECT INDEX (Continued)

OFFICIAL REPORT

PRAYER

QUESTIONS PRESENTED:

Federal Question One

Federal Question Two

Federal Question Three

Federal Question Four

on DO WD

MASTS Re Sanaa id Rae Rena

REISER ERD

{fi

AUTHORITIES

CONSTITUTIONAL PROVISIONS Page

Fourth Amendment, Constitution of the United

StateScececcecetty 6, 7» 13, 17, 26, 30, 37,

38, 40, 47, 48

Fifth Amendment, Constitution of the United

OO 4, 6, 8, 14, 26, 30, ks,

Fourteenth Amendment, Constitution of the United

StateSeccccceeds 6, 7s 8, 14, 20, 255 41, 4s,

46, 47, 49

STATUTES - ee

Florida Statutes, Chapter 466, section 466.24...

3, 10, 11, 12, 13, 17, 19, 25, 26, 27, 28, 29,

32, 33, ty 35, 30> 37 30, 39, 49, ST

Florida Statutes, Chapter 458, section 1201...42

United States Code Annotated, Title 28, section

1257 (3) e006

CASES i

Page

Cooper v. Florida State Board of

Dentistry, 265 Soo 2d 432 (1972) © 2

Cramp v. Board of Public Instruction,

368 U.S. 278 (1961). 46, 47

TEND NTE ES PSP AP

NSA

CASES (Continued)

| Page

Furman Ve Georgia, 408 U.S 238 (1972) 51

Giaccio v. Pennsylvania, 382 U. S, 399

—“—° 6

Griswold ve Comecticut, 381 U. S, 479

(1965) ee 48

In re Estate of Anna Z. Kionka, 121

So, 2d 644 (1960) | 28

Papachristou v. City of Jacksonvill :

N05 Us Se 156 (1972) oi 46

| Rabe v. Washington, 405 U. S. 313 (1972) L6é

| Robinson v. California, 370 U. S. 660

| (1962) aig ge

Gall Co. ve American Sugar, 267 Us S. 233

| (1925) an 47

Stith Ve Texas, 233 U. S. 630 (1913)

State v. Pattishall, 126 So. 147, 99 Flas

) 296 (1930) | 4s

Tumey ve Ohio, 273 UsS. 510 (1927) 53

E_ a Reet tt se RE OER PO AY ee. ee

TERM, 1972

IN THE

SUPREME COURT OF THE UNITED STATES

i ee hi Diadiatah e ot al

DR, JOHN F, COOPER, PETITIONER,

VSe

THE FLORIDA STATE BOARD OF DENTISTRY,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT OF FLORIDA

TO THE HONORABLE SUPREME COURT OF THE UNITED STATES:

Comes now Dr. John F, Cooper, petitioner

in the above-styled cause, and files this, his peti-

tion for a writ of certiorari to the Supreme Court

of Florida, and in support thereof respectfully

submits the fol lowing:

_——

OFFICIAL REPORT

1, The denial by the District Court of

Appeal of Florida, Third District, of the petition

for a writ of certiorari to the Florida State Board

of Dentistry on July 5, 1972, and the rehearing de-

nial of August 1, 1972, are noted in 265 Southern M

Reporter Second 432, .

The denial of the petition for awrit of

certiorari to the District Court of Appeal of Florida,

Third District, and the dismissal of the appeal there- |

fran by the Supreme Court of Florida are not officially

reported at the time of the writing of this petition.

Copies of all administrative orders and

court orders involved in this case are offered in the

appendix presented separately to this petition.

GROUNDS

2. (a) The license to practice dentistry

of petitioner, as well as any renewals thereof, have

been revoked permanently by the Florida State Board

of Dentistry under authority of the Florida Statutes

—__ II NILE TO | RL CSR LIT LIE INE LONI ES” ea |

a ee ee Be

rr BO ae MOIR ED ne

Annotated, 1971, Chapter 466, section 466.24 while

this statutory section is vague, indefinite and

standardless so as to fail to give a person of ordin-

ary intelligence fair notice that his contemplated

conduct is forbidden by said statute, and requires

men necessarily to guess as to its meaning and appli- '

cation, thereby illegally posing a clear, imminent, '

irreparable and great damage to Dr, Cooper in the .

loss of his means to a livelihood, For this denial

of due process the said statutory section is repugnant

to the Constitution of the United States,

In this certain statutory section, the

psychiatric disorder is ranked along with other dis-

ease deened dangerous to the public health without

delineation.

(b) This certain statutory section also

punishes the dentist who becomes mentally ill,

(afflicted with psychiatric disorder), or becomes

a drug addict,

unequally any dentist who happens to become afflicted |

—— t IE SSR LIES CTI TR EIR TR Herne se ag A NER

Set at oe ee

ae Te mere Pee er Ot ae ne ce tt C a wee err ome at ee wae ee ee eat kD ee ween

with a psychiatric disorder among the ranks of all

dentists similarly situated, while providing no

suspension or revocation for the dentist who becomes

afflicted with a physical disorder, This unequal

protection of the said section is unconstitutional,

(d) The accusation and the order deter-

mining Or, Cooper guilty of certain conduct both

rely on an inability of petitioner to manage "his

personal and business affairs." While the Florida

State Board of Dentistry is carrying out a legiti-

mate police power function under authority of section

455.24, the overbreadth of the section is unconsti-

tutional when it invades petitioner's right to

privacy.

(e) Petitioner was denied due process

when he was required to go to the defense of his

dental license without a meaningful opportunity to

prepare a defense to the accusation.

(f) The hearing before the Florida State

Board of Dentistry lacked the required appearance

of justice when the attorney for the Board held the

official inconsistent positions of prosecuting

petitioner on the accusation and advising the Board

of laymen on matters of law during the hearing of

the matter.

(g) The Florida State Board of Denti-

stry failed to strictly construe this penal statute

as is required where the entire accusation is drafted

in the past tense while the proscribed conduct in

the statutory section specifies "is",

(h) Both the accusation and the deter-

mination of guilt by the Board were non-specific,

open-ended and without limitation where the charges

were recited ".,.but not limited thereto."

(i) The date of the judgnent sought to

be reviewed is Tuesday, October 3, 1972, and the time

of its entry is not noted in said court.

(j) No rehearing was sought in the

Supreme Court of Florida, but on Monday, October 30,

1972, a stay of execution was granted allowing peti-

tioner to and including December 4, 1972, to seek

review in the Supreme Court of the United States and

obtain any further stay.

(k) The jurisdiction of this Court to

review this case by certiorari rests upon United

States Code Annotated, Title 28, section 1257 (3).

| FEDERAL QUESTIONS

3. (a) FIRST FEDERAL QUESTION:

Is a state statute, which is penal in

nature dealing with the revocation of a dentist's

license, repugnant to the Due Process Clause of

the Fifth and Fourteenth Amendments to the Consti-

tution of the United States if said statute:

(1) Is so vague, indefinite and

standardiess as to fail to give men of common in-

telligence fair notice of what it forbids? :

(2) Further, causes men to neces-

sarily guess at its meaning and differ as to its

application?

(b) SECOND FEDERAL QUESTION:

Is a state statute which is used in

performing a valid governmental function unconsti-

tuticnal for being repugnant to the right to privacy

——EE AUNTS: ABATE ERCP ALLEY PY PaCS HTM DP AAR CRAP OI AL OO TE OD

eg SoAME MSC PrB enka

provision of the Fourth Amendment to the Consti-

tution of the United States if said statute:.

(1) By its overbreadth allows an

See MBF

examination of all of the banking records and busi-

ness practices of a dentist without his consent?

(2) By its overbreadth allows an exem-

ination on which to base the conclusion a dentist

lacks the ability to manage “his personal and busi-

ness affairs’?

(3) By permitting such invasions

allows an unreaonable search within the meaning of

said Amendment?

statute repugnant to the Constitution of the United

States for denying a right under the Equal Protection

Clause of the Fourteenth Amendment if it provides:

(1) A dentist who becomes afflicted

with a mental illness (afflicted with a psychiatric

disorder) arong other dentists similarly situated

may have his dental license suspended or revoked

while a dentist with a physical disorder is not

Sek ht ae the tpt a ne eh Pitt Bl Beth Se OR ON ae Bh Pe wit te La Se ees se ll

= .

penal ized?

(2) A dentist who becomes a drug

addict among other dentists similarly situated

may also be so punished,

(d) FOURTH FEDERAL QUESTION: Is a denial of

the right to the Due Process Clause of the Fifth and

Fourteenth Amendnents to the Constitution of the Uni-

ted States for an adninistrative board hearing an ac-

cusation of misconduct charged against a dentist to:

(1) Require the accused dentist to

defend his professional license within seventeen

days after said dentist wes able to retain counsel,

where the attempt to retain counsel was limited due

to financial reasons?

(2) Require the accused to defend

within seventeen days after retaining counsel when

the attorney retained asked for a bill of particu-

lars and a continuance, under the circumstances, and

both requests were denied?

(3) Allow @ attorney only seventeen

days to prepare a meaningful defense in such a

qe9 > eee sl Bl ta ak ee ae > Re

case where he needs to find applicable law, locate

and interview available witnesses during what wes

mostly a holiday season, take required depositions,

cause the necessary subpoenas to be issued in Jack-

sonville, Florida, and returned to Miami, Florida,

where service on said witnesses wes required in

Miani, Dade County, Florida, and Sanford, Seminole

County, Florida?

(4) Provide the accused dentist

with an accusation that recited certain charges of

alleged misconduct but specifically state at several

places in the accusation ",..but not limited there-

to"?

(5) Provide the accused dentist

with an accusation drafted only in the past tense

based upon a statutory provision proscribing con-

duct of which the accused "is" guilty?

(6) Provide the accused dentist

with a determination of fact containing a conclu-

sion of guilt based upon certain allegations stated

but followed by "...but not limited thereto''?

Sh i 20 £4

(7) Allow the attorney who acted

as the prosecutor of the accused dentist in the

hearing of the matter on behalf of the board also

to advise the board, all of whan were laymen, on

questions of law that arose during the hearing?

(8) Revoke the license of a den-

tist permanently for conduct done before the den-

tist had been hospitalized and had received three

months of psychiatric rehabilitative treatment,

and had been returned to the practice of dentistry

by the attending psychiatrist?

STATUTE AND PROVISIONS

4, "465.24 Suspension or revocation of

license certificate for cause.--The board shall

suspend or revoke the license of any dentist or

dental hygienist when it is established to its sat-

isfaction that he:

(1) Is a habitual user of intoxicants,

or drugs or is afflicted with physical disability,

senility, psychiatric disorders or other disease

deemed dangerous to the public health, thus ren-

dering him unfit for the practice of dentistry or

dental hygiene.

(2) Is grossly ignorant or incompe-

tent.

(3) Has been guilty of:

(a) Misconduct either in his

business or in his personal affairs which would

bring discredit upon the dental profession;

(b) Fraud, deceit or misrepresen-

tation in obtaining his license;

(d) Wilful negligence in the

practice of dentistry or dental hygiene;

-(e) Employing or permitting any

unlicensed person or persons to perform any work in

his office, which would constitute the practice of

dentistry or dental hygiene;

(f) Publication or circulation,

directly or indirectly of any fraudulent, false or

misleading statements as to the skill or methods of

practice of any person;

(g) Advertising in any manner

his professional services in the practice of den-

tistry or the cost or fees therefor in this state

jn a manner not expressly authorized by this chapter;

claiming or inferring of professional superiority

over other practitioners;

(h) Employing or using a solicitor

or other agent to obtain patronage;

(i) Giving a public demonstration

of skill or methods;

(j) Practicing dentistry along the

streets or highways or any place other than the

office where the licensee regularly practices den-

Fee a a

tistry except as provided by this chapter;

(k) The public exhibition or use

of specimens of dental work, large display signs or

lighted signs, electric or neon or any other media

of calling the attention of the public to any person

engaged in the practice of dentistry or dental

hygiene; :

(1) Failure to provide and

maintain reasonably sanitary facilities and con-

ditions;

(m) Failure to provide adequate

radiation safeguards; or,

(n) Violating any other provision

of this chapter regulating the practice of dentistry

or dental hygiene."

This statutory section is to be found in

the Official Florida Statutes, 1971, Volure Two,

at pages 399 and 400.

CONSTITUTION OF THE UNITED STATES OF AMERICA

AMENDMENT 4

‘The right of the people to be secure in

their persons, houses, papers, and effects, against

unreasonable searches and seizures shall not be

violated, and no Warrants shall issue, but upon prob-

able cause, supported by Oath or affirmation, and

particularly describing the place to be searched,

and the persons or things to be seized."

AMENDMENT 5

"No person shall be held to answer for a

capital, or otherwise infarous crime, unless on a

presentment or indictment of a Grand Jury, except

in cases arising in the land or naval forces, or in

the Militia, when in actual service in time of War

or public danger; nor shall any person be subject

for the same offense to be twice put in jeopardy of

life or limb; nor shall be compelled in any criminal

case to be a witness against himself, nor be depri-

ved of life, liberty, or property, without due

process of law; nor shall private property be taken

for public use, without just compensation."

AMENDMENT 14

"SECTION 1. All persons born or natu-

ralized in the United States, and subject to the

jurisdiction thereof, are citizens of the United

States and of the State wherein they reside. No

State shall make or enforce any law which shall

abridge the privileges or immunities of the citizens

Pe Se eee, ee ee

RY STENT I ARAN AT I

of the United States; nor shall any State deprive

any person of life, liberty, or property, without

due process of law; nor deny to any person within

its jurisdiction the equal protection of the laws,"

FACTS

5. Petitioner's license to practice den-

tistry, as well as any renewels thereof, have been

revoked permanently by an order of the Florida State

Board of Dentistry under authority of the Florida

Statutes Annotated, 1971, Chapter 466, section 455,24,

while this statutory section is so vague, indefinite

and standardiess as to fail to give a person of

ordinary intelligence fair notice that his conten-

pleted conduct is forbidden by this penal statute

requiring men necessarily to guess at its meaning

and application, thereby illegally posing a clear,

imminent, irreparable and great loss to Or. Cooper

in the loss of his means to a livelihood,

Petitioner Cooper entered the Veteran's

Adninistraticn Hospital in Miami, Florida, on July

14, 1971, and was discharged on October 4, 1971.

His treating psychiatrist, Or. James Goodman, kept

Or. Cooper in the classical psychiatric ward until

August 29, 1971, when Or, Cooper was allowed to en-

ter the Human Relations Laboratory for exchanges with

other patients and further treatment there until he

wes discharged as able to return to work, When

queried on the hearing of this matter as to the

cause of his hospitalization being drug addiction

or alcoholism, or both, Or, Cooper stated the cause

wes more complex than that. His uncontradicted

lly ill, On his

release petitioner returned to work as a dentist

with the Seninole County Health Department at San-

ford, Florida, where he yet works.

Charges were filed against petitioner

with the Secretary-treasurer of the Florida State

Board of Dentistry on Decenber 10, 1971.

All of the charges made were based on

conduct prior to the hospitalization of petitimer.

Charges began with conduct on August 22, 1963, and

ended with conduct shortly before petitioner's

é |

hospitalization on July 14, 1971. No charges of

misconduct were made for any conduct of petitioner

after his release fron the psychiatric ward of the

hospital. .

The accusation made against Or. Cooper

was open-ended,

"The above described acts, all of which

violate Chapter 466 of the Florida Statutes are in

violation of Section 466.24 (1), (3) (a) (c) (d)

(1) (n), of the Florida Statutes, limit

The accusation made against Dr. Cooper

included charges of misuse of his "personal and

business affairs" and abuse of checking accounts and

writing of “bad checks" on old checking accounts.

These charges were served upon petitioner

by certified mail on the 13th day of December, 1971.

He then began his search for an attorney to aid

him in his defense, but, due to his limited financial

resources, he wes unable to retain counsel until

December 28, 1971, and the 'Notice of Hearing" set |

the date of hearing on January 14, 1972.

This allowed petitioner's counsel a

period of only seventeen days in which to investi-

gate the charges, make discovery of the evidence

against petitioner held by the Florida State Board

of Dentistry, find applicable law, locate available

witnesses, take required depositions, cause the

necessary subpoenas to be issued in Jacksonville,

Florida, and to be returned to Miami, Florida, for

service in Miani, Florida, and in Sanford, Seminole

County, Florida. This seventeen day period wes

during a holiday season when many people were un-

available due to being out of town or busy with

seasonal conmitments.

Petitioner's motions for a continuance

and bill of particulars were denied by the respon=

dent.

A hearing was held, One the hearing of

this matter, Mr. Randle, the attorney who had advised

the Florida State Board of Dentistry they had good

legal cause to prosecute Dr. Cooper, advised the

Board on matters of law. Mr. Randle also pre-

sented the case against Or, Cooper as the attor-

ney for the Board,

The Board, in addition to ruling on legal

questions as they arose throughout the hearing, made

the finding of guilty.

The determination of fact finding Or.

Cooper guilty was written, however, in the sane

open-ended fashion as the accusation.

"4, The above described acts, all of

which violate Chapter 466 of the Florida Statutes,

are in violation of Section 466.24 (1), (3), (a)

limited thereto."

Also the Board concluded petitioner was

unable to manage his "personal and business affairs".

FEDERAL QUESTIONS RAISED

6. The stay granted by the Supreme Court

of Florida on Monday, October 30, 1972,halted all

proceedings in said court as well as proceedings

in the District Court of Appeal, Third District, and —

the Circuit Court for the Eleventh Judicial Circuit

of Florida in and for Dade County to and including

Decerber 4, 1972, to allow petitioner to seek re-°

view in the Supreme Court of the United States and

obtain any further stay.

The first federal question raised dealing

with the indefinite, vague and standardless quality

of Section 466.24 of the Florida Statutes was

raised before the Florida State Board of Dentistry

in a Motion to Dismiss where petitioner wrote:

"Comes now Dr, John F, Cooper

in person and by his attorney, Glyn Dial

Ellis, and does respectfully move the

Florida Board of Dentistry to dismiss the

charges against him in the 'Accusation®

sworn to December 9, 1971, on the ground

that the ‘Accusation’ is based upon Chap-

ter 455 of the Florida Statutes which is

unconstitutional due to being vague, ob-

scure, indefinite, ambiguous and

written without prescribed standards

which would determine the necessary

degree of wrongdoing in order to sus-

tain a finding of conduct sufficiently

improper or improperly motivated so as

to entitle the Board to find against

Dr. Cooper and to penalize him under

the Florida Statute authorizing a

penalty.

"Additionally, the ‘Accusation!

is not drafted in the present tense so as

to meet the requirement that Dr. Cooper

‘is' a user as described and there are no

facts stated in the 'Accusation' that

sustain a finding that this is true, In

other words, the ‘Accusation! recites the

law in this particular section but states

no facts to sustain such conduct on the

part of Dr. Cooper presently.

"Additionally, the Florida

Statutes, Section 466, is unconsti-

tutional on the ground that it does

not inform an ordinary man of the

kind and degree of conduct that would

be sufficient to sustain the finding

for a penalty against such ordinary

man.

"Additionally, Chapter 466

of the Florida Statutes contains no

definitions of the relationships and

required conditions in order to inform

Dr. Cooper, or any ordinary man, of

such conditions as would sustain the

finding of a penalty against him under

this certain chapter.

"Done at Miani, Florida, this

December 31, 1971."

e MO TO DISMISS

“COMES NOW the Florida State

Board of Dentistry, by and through its

undersigned attorney, and for answer to

the Accused's Motion to Disniss states

said Motion is denied,

“DATED this 10th day of Jan-

uary, 1972.

RICHARD L. RANDLE, For and at

the direction of the Florida

State Board of Dentistry"

Prior to the hearing of this matter by

the Florida State Board of Dentistry, petitioner

sought an injunction in the Dade County Circuit

Court as well as a Declaratory Judgnent of his

rights in the following:

"APPLICATION FOR DECLARATORY JUDGMENT

TO THE HONORABLE JUDGE OF THE DADE COUNTY

CIRCUIT COURT:

“Plaintiff, Or. John F, Cooper,

presents his Application for a Declaratory

Judgnent seeking declaratory and injunctive

relief involving the following agency and

State officials:

"The Florida State Board

of Dentistry; John A, Stewart, D.D.S.,

Secretary-Treasurer of the Florida State

Board of Dentistry; Robert M, Denton,

D.0.S., Executive Director and Assistant

Secretary-Treasurer of the Florida State

Board of Dentistry; Robert Shevin,

Attorney General of the State of Florida;

and Louis H, Ritter, Secretary of the

Department of Professional and Occu-

pational Regulation.

"1. Plaintiff brings this

action for relief under Chapter 86, De-

claratory Judgnents, Florida Statutes,

1969, as amended, whereunder the plaintiff

prays the Court will render declaratory

judgnents and supplemental relief on the

existence of any inmunity, privilege, right

or status now existing belonging to the

the plaintiff as well as a declaratio of

equitable and legal relations of the

parties to this controversy as they

are affected by the following: —

"3 °(C) Plaintiff further

prays the Court determine the con-

struction and/or constitutionality in

said Chapter 466 of the two Sections,

466.24 ‘Suspension or Revocation of

License Certificate for Cause’ and

Section 455.25 'Filing of Accusations

Against Dentists, Dental Hygienists or

Dental Laboratories, Notice, Hearing,

Review',

‘Plaintiff alleges the

statutory sections 466.24 and 466.25

are unconstitutional and therefore void

due to being vague, ambiguous and in-

definite with a failure to promulgate

standards of misconduct and/or conduct

designed to bring discredit to the

practice of dentistry and by reason of

their fai lure to assure plaintiff equal

protection of the law and due process

of law. By these sections plaintiff is

denied knowing with what he is charged

since a man of conmon intelligence must

necessarily guess at their meaning and

differ as to their application,

‘There are no definitions ex-

tant in the Florida Statutes, or else-

where, governing the terms used in said

sections so that plaintiff is unable to

determine whether the wrongdoing includes

associations or beliefs or other conduct

in his "personal affairs',"

"4 (D) By the terms of the

'Accusation! plaintiff is accused of

having violated section 466.24 (3) (n),

Florida Statutes, ‘but not limited there-

to'. A statement of such violations under

various sections of 466.24 "but not limi-

ted thereto' are found on pages 2, 3, 4,

5, 6, and 7 of said ‘Accusation’.

"The ‘Accusation!’ specifies

violation of any other provision of

Chapter 455 relating to the practice of

dentistry or dental hygiene in its charge

of having violated section 455.24 (3) (n).

"The ‘Accusation! states Or.

Cooper ‘was an alcoholic’, while the law

on revocation uses the verb, ‘is a (sic)

habitual user of intoxicants... !'!

ORDER

"THIS CAUSE came on to be heard

before me on Plaintiff's Application for

injunction and Defendants’ Motion to Dis-

miss, after notice and the Court having

examined the pleadings and menorandum

filed in said cause and having heard argu-

ment of counsel, it is thereupon,

ORDERED and ADJUDSED:

1, That said Application be and the

same is hereby denied.

2. That this cause be and the same is

hereby disnissed with prejudice and at

Plaintiff's cost.

DONE and ORDERED in Chambers, at

Miami, Dade County, Florida, this 14th

day of January, 1972."

Because of the ruling laid down in the

Kionka case wherein the trial court in its final

judgnent or decree is required to directly pass

upon the validity of a statute, or undertake to

set forth a construction of the constitutional pro-

vision, no appeal was allowed to the Supreme Court

of Florida fron this denial. See In re Estate of

Anna Z. Kionka, 121 Southern Second 644, See espe-

cially page 646,.

The matter came on to be heard by the

Board whose order is found in the appendix of this

matter beginning at page one.

Petitioner next sought a writ of certiorari

in the District Court of Appeal of Florida, Third

District, where the first federal question was raised

in the petition and brief as follows:

“A, The statutory section

which was the basis for the revocation

of the license of Or, Cooper is uncon-

stitutional in those specific sections

which were the bases of the charges

against him as well as those statutory

sections being unconstitutional which

were the bases of the revocation of his

license,

"The acts described in the

accusation allegedly violate Chapter

466 of the Florida Statutes and are

presented by the Board as being in vio-

lation of "Section 466.24 (1), (3) (a)

not limited thereto’,

"The Order revoking the license

of Or, Cooper found him guilty '...of

violating Chapter 466 of the Florida

Statutes, and in particular Section

466.2% (1), (3) (a) (c) (d) (1) (n),

of the Florida Statutes, but not

limited thereto...'.

"These certain statutory

sections are vaque and standardless

leaving the dental profession uncertain

as to the condict they prohibit and

leaves administrative boards without

any legally fixed standards to guide

then,

"8, Additionally, that Sec-

tion 466.2% (3) (a) is violative of

petitioner's constitutional right to

privacy.

C, Petitioner was denied

due process of law in the following

instances:

(1) When he wes denied a

continuance which would have al lowed

counsel for petitioner an opportunity

to prepare for the defense of this

case in a reasonable time, While the

State had months to prepare its case,

petitioner had at most less then twenty

(20) days and, under the facts of this

case, to have denied petitioner a con-

tinuance was error, Counsel for peti-

tioner needed time for discovery, in-

vestigation, study of the applicable law

and preparation of the defense, A mean-

ingful opportunity to be heard is re-

quisite to fairness,

"(2) The hearing in this

matter did not have the appearance of

justice where the attorney who acted

@s prosecutor was also advisor to the

Board performing a quasi-judicial

function in determining guilt and ruling

in matters of law.

(3) The failure of the

Board to provide Or, Cooper with a spe~

cific and definite "Accusation', which

they refused to correct when they denied

petitioner's Motion for a Bill of

Particulars, was error. The granting

of a list of witnesses did not correct

this error.

4) The drafting of the

tAccusation", where it was based upon

section 466.24 (1), was error and con

stituted no charge against Or. Cooper

since it was drafted in the past tense

and did not accuse the petitioner of

being guilty of such conduct as 1s pro-

scribed at the time of the ‘Accusation’

or as the Section specifies ‘is'."

"(S) The *Accusation' did not

inform the petitioner of the charges

against him since the charges made re-

cite certain Sections of Chapter 466

but specifically state ‘but not limited

thereto'. This information that the

'Accusation" against Or. Cooper is not

limited to the certain sections of the

statutory charge made is repeated

at least once on five of the seven

pages of the ‘Accusation, Under

this information, petitioer had no

way Of knowing what he had specifically

to meet and disprove.

"(6) The Order of revocation

of the license of Or. Cooper was not

based upon the charges made against

him nor upon the evidence submitted

but as stated in Paragraph 4 of said >

Order, '..»John F, Cooper guilty of

violating Chapter 466 of the Florida

Statutes, and in particular Section

466.24 (1), (3) (a) (C) (d) (1) (nd,

of the Florida Statutes, but not

Limited thereto...'."

(Underlining is mine).

"(7) The conduct of the

Board in revoking the license of Dr.

Cooper was arbitrary and unreasoable

—_

| ce

under the facts of this case. Such

an Order was an abuse of their dis-

cretion in view of the rehabilitative

psychiatric treatment received by Or.

Cooper before any of the charges were

filed against him."

In the argument of the brief filed in the

District Court of Appeal beginning at page seven (7)

these federal questions were pursued: |

"It is difficult to understand

what it is the Florida State Legislature

forbids by this Chapter 466, Section 24.

The law fs so drafted as to mem different

things to a man of common intel ligence

so that he must necessarily guess at the

meaning of the Section; and, of course,

the Florida State Board of Dentistry would

be allowed to differ as to the application

of the law because of the nature of the

languagee Flor example:

"1466.24 (1) Is a (sic)

habitual user of intoxicants or

CrugSeceeece'

‘What is ‘a (sic) habitual user of

intoxicants'? Would it be fair to say

that a man who takes a cocktail every

evening before dinner is an habitual

user of intoxicants? Is this disabling?

‘What is an habitual user of

drugs? What are drugs? Does the

Florida State Legislature mean all

drugs which one might use habitual ly

or are there certain drugs with a dele-

terious effect which they had apeci-

Fically in mind? |

"1466.24 (1) sects aflicted

with physical disability, senility,

psychiatric disorders...'

"If a dentist were to be

afflicted with a severe case of arth

ritis, would that be a sufficient

physical disability to allow suspension

or revocation of his license?

"Webster's Third New

International Dictionary defines

‘senility’ as ‘the quality or state

of being smile’. ‘Senile’ is defined

therein as ‘of, relating to or char-

acteristic of old age’,

"'Psychiatric disorders'

would include both neuroses and psy-

choses. Even psychiatrists would dis-

agree as to what psychiatric disorders

are, and the extent of disability

flowing fram each psychiatric disorder

would also be the bases of professional

differences of opinion.

"166.24 (1) ...or other disease

agp to the public

"Is there no disease deaned

dangerous to the public health that is

not communicable at some stage? Is it

the intention of the Legislature to

suspend or revoke the licenses of dentists

who have diseases that are danger-

ous to the public health even when

such diseases are not communicable

or are not in a conmmicable stage?

™#466.24 (2) Is grossly

igworant or incompetent; '

"How could a man be deemed

grossly iqwrant who had received a

license to practice dentistry in the

State of Florida?

"Is a dentist woo achieves

several poor results on patients over |

several years of time incompetent? What

if he achieves several poor results in

@ short period of time? Is that enough

to make him incametent?

"66.24 (3) Has been guil

of: (a) Misconduct either in

his business or in his per-

sonal affairs which would bring

discredit upon the dental pro-

fession,'

“If a dentist belonged to clubs

which were Conmnistic or anti-religious,

would that be misconduct in his personal

affairs which would bring discredit

upon the dental profession?

‘What if a dentist actively

participated in either marches for

peace or civil rights? Would this be

such discredit?

‘What if a dentist were to

file a bankruptcy petition in his busi-

ness, would this be misconduct in his

business which would bring discredit

upon the dental profession? What if he

had a reputation for not paying his

bills until 120 days after they were

due, thus achieving a poor credit rating?

Would that be such a discredit to his

profession?

"1466.24 (3) (c) Malpractice; '

‘What is meant by malpractice

for the purposes of this section?

"1466.24 (3) (d) Willful negli-

gence in the practice of den-

tistry or dental hygiene; '

"Ts a man who is mentally i111 and

willfully negligent in the practice

of dentistry to have his license sus-

pended or revoked, the same as a man

who is not mentally i11 and acts will-

fully negligently? |

"0466.24 (3) (1) Failure to

provide and maintain reasonably sani-

tary facilities and conditions; '

: _ "What is ‘reasonable’? Whose

standard shall we apply? |

"While Subsection (m) requires

adequate radiation safeguards, it does not

specify the purpose for such radiation

safeguards in order that standards might

be known, as they are generally known in

the profession, or by standards pranulgated

in this Chapter.

"066.24 (3) (n) Violati

any other provision of this

chapter regulating the prace

tice of dentistry or dental

hygiene. '

"This Subsection could

either be a repetition of other pro-

visions of Section 24 which we have

already questioned or it could be ay

other provision of this Chapter anit

cable or inapplicable to an individual

dentist."

The second federai question raised below

on the overbreadth of the statute allowing an in-

vasion of petitioner's right to privacy at page 13

in the brief submitted to the District Court of

Appeal :

‘Misconduct in the personal

affairs of an individual without a sten-

dard being set by the State Legislature

fs open to such abuse in sensitive areas

of basic freedoms guaranteed indivi-

dual by the Bill of Rights that such

Statute must be unconstitutional. ‘

The third federal question was raised in

the Dade County Circuit Court and the District Court

of Appeal. This question rested on the right

insured petitioner in the Equal Protection Clause

of the Fourteenth Amendment.

In the brief filed with the District Court

ment was made: | 7 ,

| "In the area of the psychiatric

disorders this Section 24 does not fairly

treat any dentist who may become {11 with

a psychiatric disorder as opposed to a

physical disorder. This statute still treats

the psychiatric disorder as though it were

a huren infirmity arrived at in some fashion

different to that of a physical disorder.

A reading of the Section reveals that no

dentist who becomes physically {11 isi to

be suspended whereas a dentist suffering

a psychiatric disorder is to be suspended.

Again, no provision is made for any con=

dition, exception, or unusual circamstances,

‘The medical profession has met

at 21:

the same problem of the sick doctor

by providing in Florida Statute

458.1201, Subsection (n) as follows:

‘Being unable to practice

medicine with reasonable skill and

safety to patients by reason of ill-

ness, drunkenness, excessive use of

drugs, narcotics, chemicals, or any

other type of material or as a result

of any mental or physical condition.

In enforcing this paragraph the board

shall, upon probable cause, have author-

ity to compel a physician to submit to

a mental or physical exanination by

physicians designated by it. Failure

of a physician to submit to such exan-

ination when directed shall constitute

an admission of the allegations against

him unless the failure was due to

ciramstances beyond his control, con-

— upon which a default and final

order may be entered without the taking

of testimony or presentation of evi-

dence. A physician affected under this

paragraph shall at reasonable intervals

be afforded an opportunity to demonstrate

that he can resume the cometent practice

of medicine with reasonable skill and

safety to patients."

Again in the third federal question

dealing with the denial of due process, petitiomer

argued in the Third District Court of Appeal brief

"In the instant matter on

the subject of the ‘appearance of justice’

I respectfully submit to the Court that

it was error for Mr. Randle to be the

prosecuting attorney, advisor to the

Board on matters of law during the trial

of the matter, as well as being the

attorney for the Board who advised then

when they had a sufficient ancunt of

evidence to proceed against Dr. Cooper.

Again, the "appearance of justice’ was j

lost when the Board was the client of

Me. Randle and at the same time sat as

the judge and jury ruling =n matters of

law and fact in the hearing of this case,

No criticisn is intended of the Board or

Mr. Randle, but it is a difficult thing

to eplain to a individual who has been

accused of misconduct by the Florida

State Board of Dentistry how the attorney

who is prosecuting him can advise the

‘

= . AE TRG ETE ORR SEY TE OE EES oe ap

LEG AY PREM

Board that is trying him on matters

of law and evidence in the trial.”

‘Had petitioer been granted

a meaningful opportunity to be heard,

it might have been that the license of

Dr. Cooper would not have been revoked,

A men sued for one thousand dollars

would have had a greater opportunity to

defend his one thousand dollars than

Dr. Cooper had to defend his license,

even if you assume that Dr. Cooper had

thirty days in which to prepare a de-

fense. No fair minded court would

require a man to go to trial if he were

sued for one thousand dollars without

@n opportunity to take necessary pon

sitions and investigate the suit filed

against him,”

The District Court of Appeal denied the

petition for writ of certiorari as well as the

petition for a rehearing without initially passing

LEEPER RSP ROE TL ERG SEMNE TE PI LADEN NEEL AE NIE BOOS SRE ergy

EE ESSENSE UEDA TLC RENKIN eam) PO Since

_ upon the validity of the state statute in question

so petitioner was unable to appeal to the Supreme

Court of Florida. Or, restated, he did attenpt an

appeal to the Supreme Court of Florida and it was

dismissed. See Appendix, pages 24,25. |

_ Petitimer also attenpted to perfect an

appeal by writ of certiorari on the ground that

the decision in the instant case was in conflict

with State v, Pattishall, 126 Southern 147, 99

Florida 296 (1930), which requires a statute which

is penal in nature to be strictly construed and

strictly followed. The Supreme Court of Florida

denied the petition for certiorari.

la et Ce A ae Sh sir

ARGUMENT UNDER FIRST FEDERAL QUESTION

Does Dentist Cooper have the sare right

as a man accused of a crime to raise the cbjectim

of vague, indefinite and stendardless where his

accusation arose under a "penal" statute rather

than a "criminal" statute?

ie... PEPIN STA LPN PRN MPO TOT CEE TELS RE LON DOLE LY 2 LET, a |

Apts ta AM ES STORIE EEN RIEL NET IEEE DLE NA LESSEE LSE IP LEIS AOL TEE ot

This objection was raised successful ly

in two “criminal” matters before this Court

recently. See Rabe v, Washington, 405 United States

313 (1972); and, Papachristou_ ve City of Jeckcoorvi lie,

405 United States 156 (1972). |

Yes, this Court answered in Gieccio v.

Pennsylvania, 382 United States 399 (1966) at page

‘Whatever label can be given the 1860 Act

there is no doubt that it provides the State with

a procedure for depriving an acquitted defendant

of his liberty and property. Both liberty and pro=

perty are specifically protected by the Fourteenth

Amendrent against any state deprivation which does

not meet the standards of due process, and this _

protection is not to be avoided by the sinple label

a State chooses to fasten upon its conduct or its

statute. So here this state Act whether labeled

'penal' or not must meet the challenge that it is

unconstitutional ly vague,"