Opposition Brief — Cooper v. Florida Board of Dentistry

ILE Copy

Inu The | MICHAEL

Supreme Court of the United States

Ocroser TERM, 1972

No. 72-774

and

No. 72-866

DR. JOHN F. COOPER,

Petitioner

vs.

THE FLORIDA STATE BOARD OF DENTISTRY,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITIONS FOR WRIT OF CERTIORARI

Richard L. Randle

1604 American Heritage Life Bldg.

Jacksonville, Florida 32202

Attorney for Respondent

SLATER anp RANDLE

1604 American Heritage Life Building

Jacksonville, Florida 32202

Of Counsel

EOESO RED RBLEDY SP RE REY nA TR RH Oe aces eaters tr cat tena ee

tA

SLEPT SHEL

INDEX

INTRODUCTION

QUESTIONS PRESENTED

STATEMENT OF THE CASE

ARGUMENT

CONCLUSION

CERTIFICATE OF SERVICE

~]

6 &

CITATION OF AUTHORITIES

Page

Beckerman v. Finley, Fla., 183 So.2d 535 31

Florida Board of Pharmacy v. Levin, 190 So.2d 768 .... 18, 99

Head v. New Mexico Board of Examiners in Optometry,

374 U.S. 424, 10 L.Ed.2d. 983, 83 S.Ct. 1759 ......... 7

Lee Optical of Oklahoma v. Williamson, 348 U.S. 483,

99 L.Ed. 563, 75 S.Ct. 461 17

Mack v. Pepper, 1922 So.2d 66, Cert. denied by Fla.Sup.

Ct. 430 F.2d 862, Cert. denied by U.S. Sup.Ct. 28

L.Ed.2d 237 18

Smith v. Texas, 233 U.S. 630 (1913) 9, 5

Varholy v. Sweat, 15 So.2d 267, 153 Fla. 571 .................. pt)

Jiro Yoshizawa v. Harry R. Hewitt, 79 A.L.R. 317, 52

F.2d 411 12

STATUTES AND OTHER AUTHORITIES

Florida Statutes, 466.01 8

Florida Statutes, 466.24 (1) 11, 2

Florida Statutes, 458.1201 5

ju The

Supreme Court of the United States

Ocroser TERM, 1972

No. 72-774

and

No. 72-866

DR. JOHN F. COOPER,

Petitioner

vs.

THE FLORIDA STATE BOARD OF DENTISTRY,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITIONS FOR WRIT OF CERTIORARI

INTRODUCTION

The Respondent, The Florida State Board of Dentistry,

in this Brief is making a common response to the Petitions

For Writ of Certiorari filed with this Court by the Petitioner,

Dr. John F. Cooper, being Case Numbers 72-774 and 72-866.

It is respectfully shown that the Petitions are identical with

the exception of a reference to a report of the Board of Trus-

2

tees of the American Medical Association, which was in no

way a part of the proceedings below.

QUESTIONS PRESENTED

Respondent, The Florida State Board of Dentistry, is not

satisfied with Petitioner's Federal Questions Presented for

review or with the argumentative and factually unsupported

manner in which the questions are framed, and would prefer

to state the questions presented as follows:

1. Under the laws of the State of Florida, can the public

be protected from a dentist because he is a habitual user

of intoxicants and drugs rendering him unfit for the practice

of dentistry and has been guilty of malpractice, willful neg-

ligence in the practice of dentistry, misconduct in his busi-

ness and personal affairs which would bring discredit upon

the dental profession, and for failure to provide sanitary fa-

cilities and conditions?

2. Is Florida permitted, through the Legislature and un-

der the police powers, to provide for qualifications and to

prohibit certain clearly set forth conduct to protect the health,

safety and welfare of the people of the State of Florida?

3. Can a dentist, a habitual user of intoxicants and drugs

which impairs his ability to practice dentistry, be subject to

having his license revoked to protect the citizens of the

State of Florida from such dentist?

4. Is the accused in an administrative hearing afforded

due process of law when he is given proper and appropriate

notice under the Statutes, has counsel, subpoenas witnesses,

makes »a judicial attack upon the Board’s proceedings prior

to the hearing, which the Circuit Court (of Florida) denied,

3

attends the hearing represented by counsel and presents

twenty-seven witnesses in the accused’s case, has a full re-

view of all matters prior to the hearing and at the hearing,

is given full opportunity to be heard, and, subsequent to the

hearing, a complete review by a Florida Appellate Court and

a further review by the Supreme Court of Florida?

It is respectfully submitted that these questions can all

be answered in the affirmative.

STATEMENT OF THE CASE

Respondent believes that a more orderly and accurate state-

ment of the case can be and should be presented to this

Court, rather than disjunctive, confusing and illogically placed

statements made to this Court by the Petitioner. We re-

spectively submit what we believe to be a more chronological

and factual presentation of the statement and history of the

case.

Respondent, The Florida State Board of Dentistry, is a

regulatory agency established by the Legislature of the State

of Florida (Chapter 466 of the Florida Statutes) for the pur-

pose of inter alia of conducting hearings on proceedings to

revoke or suspend a license when evidence has been pre-

sented showing violations of the aforesaid statute.

The Petitioner, Dr. John F. Cooper, was a licensed dentist

authorized to practice dentistry in the State of Florida prior

to the revocation of his license by the Respondent Board.

Respondent conducted a hearing on the Accusation dated

December 9, 1971, and without going into the details of the

Accusation, which was in minute detail, the Petitioner was

accused under Florida Statutes 466.24 of being a habitual

4

user of intoxicants and drugs rendering him unfit for the prao-

tice of dentistry, of being guilty of misconduct in his busi-

ness or personal affairs which would bring discredit upon the

dental profession, malpractice and willful negligence in the

practice of dentistry.

The charges stemmed from the excessive and habitual use

of intoxicants and drugs by the Petitioner for a period from

1963 to just before the Accusation was filed. The Petitioner

drank intoxicating beverages at his dental office for a num-

ber of years immediately preceding the Accusation to such

an extent that he could not perform dental services in his

office or maintain any schedule of dental appointments, and

would use intoxicants and drugs to the extent that he would

pass out and be without the use of his normal faculties and

would lie in an unsanitary and filthy condition during these

periods of time.

The Petitioner issued prescriptions using the names of many

individuals for whom the prescriptions were never intended

and knowing full well that the issuance of the

for the drugs were to be used, not for the individual in

whose name they were issued, but for himself, he would

The Petitioner, while engaged in the practice of dentistry,

as alleged in the Accusation, became so intoxicated and dis-

orderly that it resulted in his arrest, and further for aggra-

vated assault or public drunkenness approximately fifteen

times from 1963 to 1971.

During this period of time, the privilege of driving an

automobile was taken from the Petitioner because of his driv-

ing while intoxicated and his entering a plea of guilty to

The Petitioner was unable to perform and manage his busi-

ness and personal affairs, including, but not limited to, his

entire financial affairs of his dental office, his bank accounts,

including the fact that it was necessary for his bank accounts

to be maintained in the name of his secretary, and that he

issued and cashed worthless (bad) checks.

A Notice of Hearing, together with the Accusation, was

served upon the Petitioner in accordance with Florida Stat-

utes.

Petitioner made certain motions, together with a Motion

For Continuance, which was couched in general terms and

was acted upon immediately by the Board. At the same time,

a Motion For Bill Of Particulars, a Motion For List Of Wit-

nesses, and a Motion To Dismiss were filed, all of which were

promptly acted upon by the Board. In addition thereto, Pe-

titioner’s counsel was in constant contact with the Board's

attorney and was advised on procedures and the Board co-

operated fully with the Petitioner and his counsel on all

matters required for said hearing.

The Board received a request from the Petitioner for twenty-

eight witness subpoenas, all of which were hastily dispatched

and served on the witnesses, with the Petitioner producing

twenty-seven witnesses at the hearing, and any witness not

so produced, a stipulation was entered into that information

submitted by that witness was received into evidence on

behalf of the Petitioner.

The Petitioner made no request for or noticed any deposi-

tions and received the full cooperation of the Board and its

counsel in preparing for the hearing.

Immediately prior to the said hearing, on January 14 and

15, 1972, Petitioner filed an Application for Declaratory Judg.

ment and a Motion For Temporary Injunction in the Circuit

Court of the Eleventh Judicial Circuit in and for Dade County,

Florida, urging the same points that he urged before the

Florida Appellate Courts. After a full and complete hearing

on the Application for Declaratory Judgment and Motion

For Temporary Injunction, the Application was denied and

the Motion dismissed. The Petitioner did not appeal the rul-

ing of the Circuit Court of the Eleventh Judicial Circuit in

and for Dade County, Florida, wherein the Circuit Judge

ruling on Petitioner's Application and Motion commented

succinctly that the Accusation was as detailed, clear, exact-

ing and informative as any administrative charge he had ever

The Petitioner entered a plea of guilty to certain charges

and took the witness stand and admitted what he stated were

his indiscretions (actually the charges), either in whole or

in part.

At no point in the proceedings did the Petitioner ever

attempt to produce any physician, either by subpoeaning him,

by deposition, or by a written report or otherwise regarding

any evidence concerning Petitioner's condition.

After the full and fair hearing, the Board made its deter-

mination of fact based upon competent, substantial evidence

as found by the reviewing courts.

Petitioner filed a Petition For Writ of Certiorari with the

District Court of Appeal of Florida, Third District, and after

review and argument before the said court, the said District

Court of Appeal of Florida, Third District, denied Petitioner's

Petition For Writ of Certiorari and also denied Petitioner's

Petition For Rehearing.

7

Whereupon the Petitioner sought both by way of appeal

and by certiorari a review of this case by the Supreme Court

of Florida, and after filing briefs and hearing oral argum<nt,

the Supreme Court of Florida dismissed the appeal and de-

nied the Petition For Certiorari.

Whereupon the Petitioner filed his Petition For Writ of

Certiorari to this Court, both from the Third District Court

of Appeal of Florida and from the Supreme Court of Florida.

Said Petitions being the same with the exception of a refer-

ence to a report of the Board of Trustees of the American

Medical Association, which was in no way a part of the pro-

ceedings below.

A common response is being made herein to said Peti-

tions.

would respectfully submit to this Court that

it is difficult to submit an appropriate and logically oriented

brief if the Respondent attempts to answer the Petitioner's

Petitions using the outline form and procedure adopted by

the Petitioner.

Although the Petitioner purportedly begins his Argument

on page 45 of his Petitions, much of the preceding pages

submitted by the Petitioner are argumentative and factually

and would indeed be difficult to answer line

by line and this Brief not become as confusing, disjunctive

and rambling as Petitioner's Petitions.

L. IS A STATE STATUTE, WHICH IS PENAL IN NA-

TURE DEALING WITH THE REVOCATION OF

A DENTISTS LICENSE, REPUGNANT TO THE

8

DUE PROCESS CLAUSE OF THE FIFTH AND

FOURTEENTH AMENDMENTS TO THE CONSTI.

TUTION OF THE UNITED STATES IF SAID STAT.

UTE: (1) IS SO VAGUE, INDEFINITE AND

STANDARDLESS AS TO FAIL TO GIVE MEN OF

COMMON INTELLIGENCE FAIR NOTICE OF

WHAT IT FORBIDS? (2) FURTHER, CAUSES

MEN TO NECESSARILY GUESS AT ITS MEAN.

ING AND DIFFER AS TO ITS APPLICATION?

As Restated by Respondent:

UNDER THE LAWS OF THE STATE OF FLORI-

DA, CAN THE PUBLIC BE PROTECTED FROM A

DENTIST BECAUSE HE IS A HABITUAL USER

OF INTOXICANTS AND DRUGS RENDERING HIM

UNFIT FOR THE PRACTICE OF DENTISTRY AND

HAS BEEN GUILTY OF MALPRACTICE, WILLFUL

NEGLIGENCE IN THE PRACTICE OF DENTIS-

TRY, MISCONDUCT IN HIS BUSINESS AND PER-

SONAL AFFAIRS WHICH WOULD BRING DIS-

CREDIT UPON THE DENTAL PROFESSION, AND

FOR FAILURE TO PROVIDE SANITARY FACILI-

TIES AND CONDITIONS?

The Florida State Board of Dentistry is a Board created

by the Legislature of the State of Florida with its responsi-

bility under the police powers to protect the health, safety

and welfare of the people of the State of Florida as set forth

in Section 466.01 of the Florida Statutes.

“466.01 Objects and purposes of chapter.—The prac-

tice of dentistry in the state is hereby declared to

affect the public health, safety and welfare and to

be subject to regulation and control in the public in-

terest. It is further declared to be a matter of public

interest and concern that the dental profession merit

and receive the confidence of the public and that only

qualified dentists be permitted to practice dentistry

in the state. All provisions of this chapter relating to

the practice of dentistry and dental hygiene and to

the registration of dental laboratories shall be liber-

ally construed to carry out these objects and purposes.”

It has long been recognized in the United States and the

States of the United States that the Legislature of the vari-

ous States may prescribe qualifications and requirements for

the privilege of practicing a profession in that State. It is

likewise the very foundation of the law as applies to Ad-

ministrative Boards that they may act through appropriate

legislation to protect the health, safety and welfare of the

people of a State from a professional man that would vio-

late the qualifications and requirements of fitness as set forth

by the Legislature.

The case of Smith v. Texas, 233 U.S. 630 (1913), which

case is cited by the Petitioner, is authority from this Court

that if the service is public (which the practice of dentistry

is), the State may prescribe qualifications and require ex-

aminations to test the fitness of persons to engage in or re-

main in the public calling. This Court says:

“If the service is public, the state may prescribe quali-

fications and require an examination to test the fit-

ness of any person to engage in or remain in the pub-

lic calling. Re Lockwood, 154 U.S. 116, 38 L.Ed. 929,

14 Sup.Ct-Rep. 1082; Hawker v. New York, 170 U.S.

189, 42 L.Ed. 1002, 18 Sup.Ct-Rep. 573; Watson v.

Maryland, 218 U.S. 173, 54 L.Ed. 987, 30 Sup.Ct.Rep.

644.”

10

And this Court further said:

“. . » This and the other cases establish, beyond con-

troversy, that, in the exercise of the police power, the

state may prescribe tests and require a license from

those who wish to engage in or remain in a private

calling affecting the public safety ... .”

(Emphasis is Supplied )

Petitioner attempts to make the argument that Chapter

466.24 is vague, indefinite and standardless. It is hard to

conceive of such a statement being made, when the Peti-

tioner sets forth in his Petitions on pages 10, 11, 12 and 13

the rather exacting provisions as to when a dentist's license

might be subject to suspension or revocation for a violation

of said section or parts thereof.

Petitioner in his Petitions attempts at one point to break

down into small segments Section 466.24 and then to erro

neously and ridiculously guess at what these tiny segments

mean, when if each segment is read as a section, it is abun-

dantly clear what is meant by the law. He wishes to enter

into the field of surmise and conjecture and to make up

facts and circumstances, none of which are a part of this

case, rather than to look at the clear and concise language

of the Statutes and to the Accusation wherein the Petitioner

was charged with particular sections of Chapter 466.24.

Petitioner has used the same argument throughout the

courts of the vagueness of the Statutes and the vagueness

of the Accusation. The Circuit Court Judge for the Eleventh

Judicial Circuit, in and for Dade County, Florida, succinctly

summed up the matter when he denied Petitioner’s Applica-

tion for Declaratory Judgment and Motion For Temporary

Injunction and stated that the law and the Accusation could

not be more detailed or emphatic or any clearer.

ll

Petitioner has used the statement the law is drafted to

mean different things to a man of common intelligence, yet

many pages of his Petitions and his Argument are not the

thoughts of a man of common intelligence, but more the

ramblings of someone who is attempting to be obviously

ridiculous.

Petitioner is obviously ignoring the clear language of the

Accusation and the clear unequivocal language of the Stat-

utes.

Section 466.24(1) of the Florida Statutes states:

“466.24 Suspension or revocation of license certificate

for cause.—The board shall suspend or revoke the li-

cense of any dentist or dental hygienist when it is

established to its satisfaction that he:

(1) Is a habitual user of intoxicants, or drugs or

is afflicted with physical disability, senility, psychi-

atric disorders or other disease deemed dangerous to

the public health, thus rendering him unfit for the

practice of dentistry or dental hygiene.”

What could be more clear than the need to protect the

health, safety and welfare of the people of the State of

Florida from a dentist who is a habitual user of intoxi-

cants and drugs, the use of which renders him unfit for

the practice of dentistry. The competent, substantial evi-

dence, which was presented to the Board and which has

been reviewed by the Florida Courts, clearly showed that

the Petitioner was unfit to practice dentistry by the use of

intoxicants and drugs and was incapable of maintaining a

dental office. Serious and permanent injury could befall a

patient of the Petitioner because of Petitioner's inability to

perform in his office because of his use of intoxicants and

drugs.

Eiueniie

12

Petitioner, in his Petitions, continues to misquote the clear

intent of the law when he states that persons with physical

disabilities rendering them unfit for the practice of dentistry

would not be in violation of the law. The Statute is clear

that if a person is rendered unfit for the practice of dentistry

because of physical disability, such person is subject to hay-

ing his license suspended or revoked because of such physi-

cal disability.

The Petitioner, in several portions in his Petitions refer-

ring to the vagueness of the Statutes, asks the question, what

is malpractice. Malpractice is subject to a definition, but

what constitutes malpractice would be determined from the

acts and conduct of the individual dentist.

The leading annotated case of Jiro Yoshizawa v. Harry R.

Hewitt, 79 A.L.R. 317, 52 F.2d 411, holds that a Statute pro-

viding for revocation of a physician’s license for “gross care-

lessness” is not too vague and that a Statute providing that

the license of a physician may be revoked by the officers

or board by which such licenses are granted is not rendered

uncertain or otherwise invalid because the grounds for revo-

cation are stated in general terms. The Court in the anno-

tated case said:

“In making ‘gross carelessness’ one of the grounds

for revocation of a license it is clear that the statute

did not go beyond the constitutional powers of the

Legislature. The phrase is synonymous with ‘gross

negligence, and the latter phrase has a well-under-

stood meaning built up in innumerable cases arising

in all branches of the law, as well as in many cases

involving the relations of physicians and their patients.

‘Gross negligence’ is that entire want of care which

would raise a presumption of conscious indifference

13

to consequences; an entire want of care, or such a

slight degree of care as to raise the presumption of

entire disregard for, and indifference to, the safety

and welfare of others; the want of even slight care

or diligence. Foster v. State [102 Tex. Cr. R. 602] 279

S. W. 270; L. & N. Ry. Co. v. Smith [135 Ky. 462] 122

S. W. 806; Strong v. Western Union Telegraph Co.

[18 Idaho, 389] 109 P. 910 [30 L.R.A. (N.S. 409, Ann.

Cas. 1912A, 55]; Words and Phrases, Third Series,

‘Gross Negligence.’’

‘In the absence of any statute the common law holds

every physician and surgeon answerable for an injury

to his patient resulting from want of the requisite

knowledge and skill, or the omission to use reasonable

care and diligence, or the failure to exercise his best

judgment.’ 21 R.C. L. 26, p. 379.

In view of the established meaning of the term un-

der the common law, as interpreted in a long line of

cases, it cannot be successfully maintained that ‘gross

carelessness’ is too vague an expression, or that the

charge filed against the defendant-appellant did not

give him notice of the nature of the allegation which

he was called upon to defend.

The term ‘gross carelessness’ has an ascertainable

meaning to the medical profession as well as to lay-

men. In the instant case the ‘gross carelessness’ and

‘manifest incapacity’ were alleged to have been shown

in treating a patient ‘for suspected threatened abor-

tion.’

The phrase ‘manifest incapacity, however, stands

in a different light from that just treated. The phrase

is not defined by the common law; we have been un-

able to find a judicial interpretation of the phrase as

* ETI iE em

14

an entity either in cases in general or in those deal-

ing with physicians particularly; there is nothing in

the instant statute that attempts to define the term,

The phrase must, then, be interpreted.

In Re Hermance v. Supervisors of Ulster County,

71 N. Y. 481, it was said: Something manifest js

‘something which is apparent by an examination . . .

needing no evidence to make it more clear. That which

is open, palpable, and, I might add, uncontrovertible”’

In Travelers’ Insurance Co. v. Richmond (Tex. Com,

App.) 291 S. W. 1085, 1087, it was said that ‘incapacity’

used without qualifying words means ‘inefficiency,

‘incompetency, and ‘lack of adequate power.’ Mani-

fest incapacity, then, in the sense of the statute means

a lack of power to comprehend or to act, such lack

being so obvious that no proof is necessary to establish

it, other than proof of the act itself.

The board of health of Hawaii has seven members,

of whom two are physicians. Their decision as to any

particular case would be opinion, but opinion in the

sense that a jury's verdict is opinion. One can never

escape the fact that the judgment of administrative

boards must, in the last analysis, be opinion, but in

the case of a board in which there are professional

men, an opinion fortified with judgment and experi-

ence.

In this connection, we may state in passing that

section 15 of the Revised Laws of Hawaii 1925 pro-

vides: “Each of the terms ‘or’ and ‘and’ has the mean-

ing of the other or of both, where the subject matter,

sense and connection require such construction.”

Accordingly, it might be argued that proof of acts

of either ‘gross carelessness’ or ‘manifest incapacity’

15

might be sufficient to support a revocation of a physi-

cian’s license. We are not basing our decision, how-

ever, upon this ground.

Nor are we relying upon the form of license set

forth in section 1027, which provides: “This license is

granted and accepted on the express condition that it

may be revoked at any time for professional miscon-

duct, gross carelessness or manifest incapacity; such

misconduct, carelessness or incapacity, having been

proven to the satisfaction of the board of health, and

by the body reported to the treasurer.’

We desire to point out, however, that this provision

in the license was impliedly agreed to by the appel-

lant when he accepted the license. It will also be

noticed that the conjunction used in the license is ‘or’

and not ‘and,’ as in section 1029.

The criterion to be applied to statutes of the nature

of the one in question is thus stated in 5 A.L.R. page

94: ‘The rule obtaining in the majority of the juris-

dictions which have passed on the question is that

a statute providing that the license of a physician,

surgeon, or dentist may be revoked by the officers

or board by which such licenses are granted, is not

rendered uncertain or otherwise invalid because the

grounds for revocation are therein stated in general

terms.”

In Ruling Case Law, vol. 21, pp. 365-367, we find

the following language: “The universal custom among

the states requiring a license of physicians and sur-

geons is to vest in a medical board the power of ex-

amining applicants and determining their fitness to

practice. There has been a good deal of litigation in-

volving the validity of such delegation, but almost

16

always with the result that the delegation was held to

be valid. True, such boards are ministerial in their

nature, but a full discharge of their duties often ne-

cessitates the consideration and determination of ques.

tions legal in their nature. However, due process is

not necessarily judicial process, and such delegation

violates no province of the federal constitution, or of

the general laws .. .”

The Court went on to say and quoted from this Court as

follows:

“In Bradley v. Richmond, 227 U. S. 477, 482, 33 S.

Ct. 319, 57 L. ed. 603, the court said: ‘Neither do we

see any reason under the 14th Amendment why the

state may not delegate to either the council of the

city or to a board appointed for that purpose the

power to divide such occupations or privileges into

classes or subclasses, and prescribes the tax to be paid

by the members of each such class. Gundling v. Chi-

cago, 177 U. S. 183, 20 S. Ct. 633, 44 L. ed. 725;

Fischer v. St. Louis, 194 U. S. 361, 372, 24 S. Ct. 673,

48 L. ed. 1018, 1024; Lieberman v. Van De Carr, 199

U. S. 552, 560, 26 S. Ct. 144, 50 L. ed. 305, 310. In

the case last cited, this court said: “That this court

will not interfere because the states have seen fit to

give administrative discretion to local boards to grant

or withhold licenses or permits to carry on trades or

occupations, or perform acts which are properly the

subject of regulation in the exercise of the reserved

power of the states to protect the health and safety

of its people, there can be no doubt.’

Again, in the case of Douglas v. Noble, 261 U. S.

165, 169, 170, 43 S. Ct. 303, 305, 67 L. ed. 590, we

17

find the following language, used by Mr. Justice Bran-

deis: ‘The Legislature itself may make this finding

of the facts of general application, and by embody-

ing it in the statute make it law. When it does so,

the function of the examination board is limited to

determining whether the applicant complies with the

requirements so declared. But the Legislature need

not make this general finding. To determine the sub-

jects of which one must have knowledge in order to

be fit to practice dentistry, the extent of knowledge

in each subject, the degree of skill requisite, and the

procedure to be followed in conducting the examina-

tion — these are matters appropriately committed to

an administrative board. Mutual Film Corporation v.

Ohio Industrial Commission, 236 U.S. 230, 245, 246,

35 S. Ct. 387, 59 L. ed. 552, Ann. Cas. 1916C, 296. And

a Legislature may, consistently with the federal Con-

stitution, delegate to such board the function of de-

termining these things, as well as the functions of de-

termining whether the applicant complies with the

detailed standard of fitness. Reetz v. Michigan, 188

U.S. 505, 23 S. Ct. 390, 47 L. ed. 563.”

This Court in the case of Lee Optical of Oklahoma vs

Williamson, 348 U.S. 483, 99 L.Ed. 563, 75 S.Ct. 461, cited

in the case of Head v. New Mexico Board of Examiners in

Optometry, 374 U.S. 424, 10 L.Ed.2d 983, 83 S.Ct. 1759, in-

volved an Oklahoma Statute dealing with the regulation of

visual care and was upheld against claims of unconstitution-

ality by the Supreme Court of the United States in toto by

all members of the Court, 8 in number, which heard the case.

Mr. Justice Douglas, speaking for the Court and delivering

the opinion states that the day is gone when this Court uses

the due process clause of the 14th Amendment to strike down

LINE AEN SELLERS TALE: SLT it pO trio Ht

18

state laws, regulatory of business and industrial conditions, be.

cause they may be unwise, improvident, or out of harmony

with a particular school of thought. For protection against

abuses by legislatures the people must resort to the polls, not

to the courts.

In the case of Mack o. Pepper, 192 So.2d 66, Cert. denied

by Fla-Sup.Ct. 430 F.2d 862, Cert. denied by the U.S.Sup.Ct

28 L.Ed 2d 237, the Florida District Court of Appeal, Third

District, said:

“Petitioner, Roy F. Mack, seeks review, by writ of

certiorari, of an order of the Florida State Board of

Dental Examiners which revoked his license to prac-

of three separate charges; they are: (1) he caused

to be listed in the yellow pages of the Greater Miami

Telephone Directory a listing for Palm Springs Gen-

eral Hospital with his private number; (2) he adver-

tised professional services at a greatly reduced cost

to certain members of trade unions; (3) misconduct

in his business which would bring discredit upon the

dental profession.”

“In his brief, petitioner has presented two points. The

first point urges that the procedure before the Dental

Board was such that he was deprived of a fair and

impartial trial. The second point urges that the Board's

findings are not supported by substantial competent

evidence. We have reviewed the record in the light

of these charges, and we find that the first point is

without merit. See State ex rel. {Wiliams v. Whitman,

116 Fla. 196, 150 So. 136, 156 So. 705, 95 A-L.R. 1416

(1934); Florida Board of Pharmacy v. Levin, Fla. 1966,

192 So.2d 14 (filed October 12, 1966). The second

point is also without merit. A review of the record

minister the regulatory laws in the interest of the

health and welfare of the general public. See

Mitchell v. Gillespie, Fla App., 164 So.2d 867,

affirmed Fla. 172 So.2d 819; Florida Board of

Pharmacy v. Hall, Fla.App., 157 So.2d 824; and

Carter v. State, Fla. 155 So.2d 787.

‘It is apparent that because of the particular issues

in the hearing, the members of the Board of

Pharmacy, who are all pharmacists (see Sec.

465.041, F.S.A.), were in all probability better

qualified than others not members of the pro-

fession, to determine whether their fellow-pro-

fessional Levin's action and conduct in the pre-

mises measured up to the recognized standards

and regulations of the pharmaceutical profes.

sion.”

It is respectfully submitted that Chapter 466.24 of the

Florida Statutes is indeed clear and subject to definition

that Petitioner's contention concerning vagueness is without

merit and has been held to be without merit by all the courts

reviewing this matter.

Petitioner's citation of cases dealing with vagrancy ordi-

nances are without merit and in no way material to the

instant case. Neither are Petitioner's citations to cases in-

volving requirements of oaths of loyalty or otherwise in any

way involved in this case.

In a Florida case previously cited by the Petitioner it is

sums up the Respondent's position. Petitioner's previous cita-

tion of Varholy vo. Sweat, 15 So. 2d 267, 153 Fla. 571, holds

the following proposition:

“Generally, rules necessary to protect the public health

are legislative questions, and appropriate methods in-

tended to accomplish these ends will not be disturbed

by the courts.”

“All reasonable presumptions should be iv.iulged in

favor of the validity of the action of the Legislature

and the duly constituted health authorities to protect

the public health, but the constitutional guaranties of

personal liberty and private property cannot be arbi-

Jy invaded.”

“Enactment and enforcement of necessary and appro-

priate health laws and regulations is a legitimate exer-

21

cise of the ‘police power’ which is inherent in the

state and which it cannot surrender.”

“The constitutional guaranties of life, liberty, and prop-

erty of which one may not be deprived without due

of law do not limit the exercise of the police

power of the state to preserve the public health so

long as that power is reasonably and fairly exercised

and not abused.”

Although the Petitioner may want to argue that the use

of the term “reasonably and fairly exercised” is vague and

ambiguous, to restrict the use of these words in the iaw

would be borderline on, if not, ridiculous.

The Petitioner, in his Petition for Certiorari to this Court

from the District Court of Appeal of Florida, Third District,

on page 51 thereof, makes reference to a report of the Board

of Trustees of the American Medical Association. Although

this report was not in any way a part of the hearing or re-

view below, it is interesting to note that the article supports

the position of the Board and the Courts of the State of

Florida when this report says:

“Apart from the cases of alcohol and drug depend-

ence which came before disciplinary bodies with rela-

tively high frequency, there are, as in the general

population, other less visible diagnostic entities of

mental disorders occurring with, perhaps, greater fre-

quency among physicians . . . .” (Emphasis supplied)

22

This report recognizes the cases wherein physicians became

alcoholics or drug addicts and necessarily came before dis.

ciplinary bodies, and then discusses other less visible diag.

nostic entities of mental disorders. The report goes on to say:

“The psychotic reactions, without question, impair the

ill physician’s judgment and ability to practice, and a

psychoneurosis or a personality disorder of sufficient

degree can constitute a similar risk to the safety of

the patient.”

Therefore, by the very report which is actually irrelevant

and immaterial, it is recognizable that “mental disorders” can

constitute a similar risk to the safety of the patient. The re

port recognizes the risk to the safety of a patient from a

doctor that is an alcoholic or a drug addict.

The Board, in revoking the license of the Petitioner (which

by administrative proceedings under the Florida Dental Prac-

tice Act he can petition to have restored), the Respondent

is not confining or punishing the doctor, but is protecting

the health, safety and welfare of the people of the State

of Florida in accordance with the valid and clear Florida

law.

2. IS A STATE STATUTE WHICH IS USED IN PER-

FORMING A VALID GOVERNMENTAL FUNC.

TION UNCONSTITUTIONAL FOR BEING REPUG-

NANT TO THE RIGHT OF PRIVACY PROVISION

OF THE FOURTH AMENDMENT TO THE CON-

STITUTION OF THE UNITED STATES IF SAID

STATUTE: (1) BY ITS OVERBREADTH ALLOWS

AN EXAMINATION OF ALL OF THE BANKING

RECORDS AND 38USINESS PRACTICES OF A

DENTIST WITHOUT HIS CONSENT? (2) BY ITS

23

OVERBREADTH ALLOWS AN EXAMINATION ON

WHICH TO BASE THE CONCLUSION A DENTIST

LACKS THE ABILITY TO MANAGE “HIS PERSON-

AL AND BUSINESS AFFAIRS”? (3) BY PERMIT-

TING SUCH INVASIONS ALLOWS AN UNREA-

SONABLE SEARCH WITHIN THE MEANING OF

SAID AMENDMENT?

As restated by Respondent?

Is FLORIDA PERMITTED, THROUGH THE LEG-

ISLATURE AND UNDER THE POLICE POWERS,

TO PROVIDE FOR QUALIFICATIONS AND TO

PROHIBIT CERTAIN CLEARLY SET FORTH CON-

DUCT TO PROTECT THE HEALTH, SAFETY AND

WELFARE OF THE PEOPLE OF THE STATE OF

FLORIDA?

It is respectfully submitted that part of the argument con-

tained under the first question is also applicable to this

question, and there is necessarily some overlapping due to

Petitioner's Petitions for which the Respondent apologizes

and asks the Court’s indulgences in attempting to answer as

closely as possible the questions raised and reiterated in vari-

ous portions of Petitioner’s Petitions.

The Respondent, The Florida State Board of Dentistry, has

never obtained, searched or in any way used the banking

records, check records or business records from the office

of the Petitioner. There has never been any search and cer-

tainly no illegal search of the Petitioner's records in any way

whatsoever. It is also interesting to note that this is the

first time this accusation has been made by the Petitioner,

and it is factually unsupported and is unfair for the Peti-

tioner to make such statements to the Court as such conduct

24

never occurred and no information was received or used in

any such manner of which the Petitioner well knows.

The record below and the testimony at the hearing was

competent and substantial concerning the inability of the

Petitioner to practice dentistry and to take care of his office

and financial affairs and the testimony of the personnel of

his office established this fact without question, and the Peti-

tioner admitted his inabilities, which he termed indiscretions,

from the witness stand.

3. IS A STATE STATUTE REPUGNANT TO THE

CONSTITUTION OF THE UNITED STATES FOR

DENYING A RIGHT UNDER THE EQUAL PROTEC.

TION CLAUSE OF THE FOURTEENTH AMEND.-

MENT IF IT PROVIDES: (1) A DENTIST WHO

BECOMES AFFLICTED WITH A MENTAL ILL

NESS (AFFLICTED WITH A PSYCHIATRIC DIS.

ORDER) AMONG OTHER DENTISTS SIMILARLY

SITUATED MAY HAVE HIS DENTAL LICENSE

SUSPENDED OR REVOKED WHILE A DENTIST

WITH A PHYSICAL DISORDER IS NOT PENAL-

IZED? (2) A DENTIST WHO BECOMES A DRUG

ADDICT AMONG OTHER DENTISTS SIMILARLY

SITUATED MAY ALSO BE SO PUNISHED.

As restated by Respondent:

CAN A DENTIST, A HABITUAL USER OF INTOXI-

CANTS AND DRUGS WHICH IMPAIRS HIS ABIL-

ITY TO PRACTICE DENTISTRY, BE SUBJECT TO

HAVING HIS LICENSE REVOKED TO PROTECT

THE CITIZENS OF THE STATE OF FLORIDA

FROM SUCH DENTIST?

25

Again, Respondent without being repetitious would invite

the Court’s attention to the previous statements in its Brief

wherein it was clearly shown that a person who becomes

physically disabled might have his license suspended or te-

voked from the practice of dentistry just as someone who,

through the use of intoxicants or drugs, becomes unfit to

practice dentistry.

It is interesting to note that the Petitioner cites the case

of Smith v. Texas, supra, which has been previously cited

by the Respondent and clearly stands for the proposition that

the State may prescribe qualifications and require examina-

tions and tests of fitness for a person to engage in or remain

in a public calling, and we add, such as dentistry.

It is interesting to note that the Petitioner cites part of

the Florida Medical Practice Act (F.S. Chapter 458, Sec.

1201) as a model and does not consider it to be vague or

indefinite when it contains the language “being unable to

practice medicine with reasonable skill and safety to patients

by reasons of illness, drunkenness, excessive use of drugs,

narcotics, chemicals, or any other type of material or as a

result of any mental or physical condition.” (Emphasis sup-

plied )

Apparently Petitioner takes exception to what he has termed

vagueness in the dental law with respect to the words “rea-

sonable” or “unfit to practice,” but has no quarrel with the

medical law which uses the terms “reasonable skill” and

“reasonable safety” and “unable to practice.”

The dental law of Florida allows a dentist to petition to

have his license reinstated, and actually affords the dentist

the same safeguards, if not stronger safeguards, under the

dental law as compared to the medical law, which is of

course not before this Court.

—

26

Petitioner cites from an opinion of this Court language

that a drug addict may be confined for treatment for the

protection of society. With this we have no quarrel and

show that the Petitioner has not been confined by the Board

nor convicted of any crime. The Petitioner has been re

moved from the practice of dentistry for the purpose of pro-

tecting the general safety and welfare of the people of the

State of Florida.

In all probability, a person afflicted with a physical dis.

order rendering him unfit for the practice of dentistry, such

as a nervous defect which would cause his hand to jerk and

injure tissue of the mouth or subject the patient to injury,

would not be allowed to practice dentistry to protect the

general welfare and safety of the public. Again, this would

not be in the form of punishment but would be in the exer.

cise of the police powers to protect the general public.

Although we have already cited the report of the Board

of Trustees of the American Medical Association, which had

nothing to do with the hearing or in fact has nothing to do

with these Petitions, but as pointed out earlier, it is inter-

esting to note that the report recognizes the risk to the safety

of the patients in connection with mental disorders and fur-

ther that the medical boards have before them numbers of

cases involving alcoholics and drug addicts which come be-

fore the medical boards as disciplinary bodies.

4. IS A DENIAL OF THE RIGHT TO THE DUE

PROCESS CLAUSE OF THE FIFTH AND FOUR-

TEENTH AMENDMENTS TO THE CONSTITU-

TION OF THE UNITED STATES FOR AN AD-

MINISTRATIVE BOARD HEARING AN ACCUSA-

TION OF MISCONDUCT CHARGED AGAINST A

27

DENTIST TO: (1) REQUIRE THE ACCUSED

DENTIST TO DEFEND HIS PROFESSIONAL LI-

CENSE WITHIN SEVENTEEN DAYS AFTER SAID

DENTIST WAS 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 PARTICULARS AND A

CONTINUANCE, UNDER THE CIRCUMSTANCES,

AND BOTH REQUESTS WERE DENIED? (3) AL-

LOW AN ATTORNEY ONLY SEVENTEEN DAYS

TO PREPARE A MEANINGFUL DEFENSE IN

SUCH A CASE WHERE HE NEEDS TO FIND

APPLICABLE LAW, LOCATE AND INTERVIEW

AVAILABLE WITNESSES DURING WHAT WAS

MOSTLY A HOLIDAY SEASON, TAKE REQUIRED

DEPOSITIONS, CAUSE THE NECESSARY SUB-

POENAS TO BE ISSUED IN JACKSONVILLE,

FLORIDA, AND RETURNED TO MIAMI, FLORI-

DA, WHERE SERVICE ON SAID WITNESSES WAS

REQUIRED IN MIAMI, DADE COUNTY, FLORIDA,

AND SANFORD, SEMINOLE COUNTY, FLORIDA?

(4) PROVIDE THE ACCUSED DENTIST WITH

AN ACCUSATION THAT RECITED CERTAIN

CHARGES OF ALLEGED MISCONDUCT BUT SPE-

CIFICALLY 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 CONDUCT OF WHICH

THE ACCUSED “IS” GUILTY? (6) PROVIDED

REELED TOE TRY SE ARR ARMOIRE 2 WAR RTD ARR

a

28

THE ACCUSED DENTIST WITH A DETERMINA.

TION OF FACT CONTAINING A CONCLUSION

OF GUILT BASED UPON CERTAIN ALLEGATIONS

STATED BUT FOLLOWED BY “. . . BUT NOT

LIMITED THERETO”? (7) ALLOW THE ArT.

TORNEY 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 WHOM

WERE LAYMEN, ON QUESTIONS OF LAW THAT

AROSE DURING THE HEARING? (8) REVOKE

THE LICENSE OF A DENTIST PERMANENTLY

FOR CONDUCT DONE BEFORE THE DENTIST

HAD BEEN HOSPITALIZED AND HAD RECEIVED

THREE MONTHS OF PSYCHIATRIC REHABILITA-

TIVE TREATMENT, AND HAD BEEN RETURNED

TO THE PRACTICE OF DENTISTRY BY THE AT-

TENDING PSYCHIATRIST?

As restated by Respondent:

IS THE ACCUSED IN AN ADMINISTRATIVE

HEARING AFFORDED DUE PROCESS OF LAW

WHEN HE IS GIVEN PROPER AND APPROPRI-

ATE NOTICE UNDER THE STATUTES, HAS COUN-

SEL, SUBPOENAS WITNESSES, MAKES A JUDI-

CIAL ATTACK UPON THE BOARD’S PROCEED.-

INGS PRIOR TO THE HEARING, WHICH THE

CIRCUIT COURT (OF FLORIDA) DENIED, AT-

TENDS THE HEARING REPRESENTED BY COUN-

SEL AND PRESENTS TWENTY-SEVEN WITNESSES

IN THE ACCUSED’S CASE, HAS A FULL REVIEW

OF ALL MATTERS PRIOR TO THE HEARING

AND AT THE HEARING, IS GIVEN FULL OPPOR-

TUNITY TO BE HEARD, AND, SUBSEQUENT TO

THE HEARING, A COMPLETE REVIEW BY A

FLORIDA APPELLATE COURT AND A FURTHER

REVIEW BY THE SUPREME COURT OF FLORI-

DA?

The Respondent in its statement of facts attempts to set

forth in chronological order the Accusation, Notice, Motions,

the collateral judicial attack on the law and an attempt to

forestall a hearing, the actual charges or accusation brought

against the accused dentist, and his full opportunity to be

heard.

In addition, the Board has attempted to show the com-

plete review of the cases in the Florida Courts. It was cer-

tainly the opinion of the Courts below that the Petitioner

had clear and concise charges spelled out in detail with am-

ple opportunity to be heard and with competent, substantial

evidence to sustain the charges.

The question concerning “but not limited thereto” can

quickly be answered by the following citation of law and

excerpt from Respondent's Brief below:

“The reason for inserting Section 466.24 (3) (n) or

the statement in addition to the other Statutes ‘but not

limited thereto’ was in strict keeping with the Supreme

Court of Florida’s statement in the case of Florida

Board of Pharmacy v. Levin, 190 So.2d 768, wherein

an incorrect section of law was cited as having been

violated, that the added language ‘was harmless sur-

plusage’ and nothing more, and the Supreme Court

went on to say:

‘Licensed pharmacists undoubtedly are familiar

with the laws regulating their profession and

ah Bens tan

APSA?

30

must be presumed to have knowledge of FS,

Section 404.02(1), F.S.A. of the Florida Barbi.

turate Law, which makes it unlawful to deliver

to another any barbiturate or central nervous

stimulant except upon prescription, with certain

exceptions not material to this case. It is quite

apparent F.S. Section 404.02(1), F.S.A., was the

statute intended to be coupled with the allega.

tions of the complaint, since it logically comple.

ments the preceding language of the charge,

Technical niceties based upon obvious mistakes

and misreferences, which do not mislead or result

in manifest unfairness are not grounds under our

authorities for overturning administrative deter.

minations. The fact that the Board in its order

found Levin guilty of having violated “the pro-

visions of Chapter 404, F.S., relating to the dis.

pensing of certain drugs containing amphetamine

salts without first being furnished a prescription,”

does not nullify the administrative determination

since this language sufficiently indicates to all

concerned the nature of the violation actually

committed even though a nonexistent section of

statute was erroneously alluded to in the charge.’

In an abundance of caution, the above language was

used by the Board.”

The statements of the Petitioner concerning the term “is”

in relationship to a violation of the law and the fact that

the Accusation was drafted in the past tense is borderline

on being ridiculous, as a violation of the law must have been

committed in the past for it to be a violation. Certainly

the Board has no authority to accuse anyone of violating

31

the law in the future and would not do so. The Supreme

Court of Florida when confronted with a similar argument

on the constitutionality of Florida Statutes 466.29, which

reads in part “When it appears to the board that any person

is practicing dentistry . . . ..” said in the case of Beckerman

». Finley, Fla. 183 So.2d 535:

“In order to invoke the injunction power of the court

the Board must establish a prima facie case by suffi-

cient pleading and proof showing that the person com-

plained against has been practicing dentistry . . . bay

(Underscoring supplied )

It is abundantly clear that the Supreme Court of Florida had

no difficulty in quickly disposing of this contention.

Petitioner’s last argument under his purported Fourth Fed-

eral Question is factually incorrect. The attorney for the Re-

spondent presented the evidence against the Petitioner at

the hearing and in no way took part in the hearing other-

wise, as is stated by the Petitioner himself on page 19. The

Board made its ruling on legal questions as they arose through-

out the hearing and made its finding of guilty. There is noth-

ing inconsistent or in anyway improper in the Board’s and

its attorney's conduct.

The Respondent has attempted to answer the Petitioner's

Petitions in every respect even though Respondent feels that

most, if not all, of the matters contained in the Petitioner’s

Petitions are factually unfounded and immaterial to the ques-

tion of jurisdiction in this case.

a

ee ePTFE OO FEW OTS Re Ie, ee LR

It is respectfully submitted that the Petitioner has se

forth no valid consideration governing review on certiorar

and that this Court should deny the Petitions for Certiorar,

CERTIFICATE OF SERVICE

I DO CERTIFY that copy hereof has been furnished by

mail this day of January, 1973, to Glyn Dial Ells,

Esquire, Attorney for Petitioner, Suite 518, 1451 North Bay-

shore Drive, Miami, Florida 33132.

Attorney