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

Supreme Court brief1973

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SUBJECT INDEX

Page

ARGUMENTS:

Federal Question One ks

Federal Question Two 47

Federal Question Three 4g

Federal Question Four 54

CERTIFICATE OF SERVICE 58

CONSTITUTIONAL AND STATUTORY LAW

INVOLVED 10

FACTS 15

FECERAL QUESTIONS RAISED: 19

(1) Dade County Circuit Court 23

(2) Florida State Board of

Dentistry 20

(3) District Court of Appeal, Third

District 28

(4) Florida Supreme Court Ls

GROUNDS 2

JURISDICTION 6

SUBJECT INDEX (Continued)

OFFICIAL REPORT

PRAYER

QUESTIONS PRESENTED:

Federal Question One

Federal Question Two

Federal Question Three

Federal Question Four

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AUTHORITIES

CONSTITUTIONAL PROVISIONS Page

Fourth Arendment, Constitution of the

United States......4, 6, 7, 13b, 17, 26, 30, 37,

38, 40,°47, 4g

Fifth Amendment, Constitution of the

United bee 4, 6, 14, 26, 30, 45, 46,

Fourteenth Amendnent, Constitution of the

Uni ted States....0.3; 6, ye 14, 20, 255 4, 4s,

9 5

STATUTES

Florida Statutes, Chapter 466, section

466.24. eee 10, 11, 12, 13 17, 19, 25, 26 pp

28, 29, 32, 33, 34, 35, 36, 37, 36,

’ 9

Florida Statutes, Chapter 458, section

1201, "Sick Doctor"......13, 13a, 13b, 42, 42a

United States Code Annotated, Title 28,

section 1257 (3)....0.6

CASES

Cooper v. Florida State Board of

Dentistry, 265 So. 2d 432 (1972) 2

Cramp v. Board of Public Instruction,

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

Sa aA RN OL NR NT) xa Ras at

o> ia

CASES (Continued)

Furman ve. Georgia, 408 U. S, 238 (1972)

Giaccio v. Pennsylvania, 382 U. S, 399

(1965)

Griswold Ve Comecticut, 381 U. S. 479

(1965) |

In re Estate of Anna Z. Kionka, 121

SO. 2d 64 (1950)

Papachristou ve. City of Jacksonville

lO5 Us Se 156 (1972) :

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

Robinson v. California, 370 U. S, 660

(1962)

Srall Co. ve American Sugar, 267 U. S. 233

(1925)

Snith vo Texas, 233 Ue. S. 630 (1913)

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

296 (1930)

Tuney ve Ohio, 273 U.eS. 510 (1927)

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—_ ™

TERM, 1972

IN THE

SUPREME COURT OF THE UNITED STATES

OR. JOHN F, COOPER, PETITIONER,

vs:

THE FLORIDA STATE BOARD OF DENTISTRY,

RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE DISTRICT COURT OF APPEAL

OF FLORIDA, THIRD DISTRICT

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

Petition to the District Court of Appeal of Flor-

ida, Third District, and in support thereof re-

Spectfully submits the fol lowing:

wwe? « > oe

Se eee SS

A A A A i A EOI I Ee I He ee ET ET

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 denial on August 1, 1972, are noted in

265 Southern Reporter Second 432 under ‘Memorandum

Decisions.” This is the highest court of the State

of Florida in which a decision could be had in

this matter.

Copies of all administrative orders

ad court orders involved in this case were

filed in the appendix to the canpanion case to

this case under Cooper v. Florida State Board of

Dentistry docketed in this Court on November 25,

1972, as No. 72-774.

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

ee Ce ee

Amotated, 1971, Chapter 466, section 465.24 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, inminent,

trvepereble 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 decned 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

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Dini A tata AA De) Ne AE ONDE NR EN A OIE BLAIR

with a psychiatric disorder anong 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 Dr. Cocper 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

485.24, 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

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7 “ind Ras Been hat Ie SAN ate al le ne Son PERS By Rae

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

SN A ENS MERTEN LTC

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COPY BOUND CLOSE IN CENTE}.

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 Anendnents to the Consti-

tution of the United States if said statute:

(1) Is so vague, indefinite and

standardless as to fail to give men of comon

intelligence 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-

tutional for being repugnant to the right to privacy

provision of the Fourth Amendment to the Consti-

tution of the United States if said statute:

(1) By its overbreadth allows an

examination of all of the banking records and busi-

ness practices of a dentist without his consent?

(2) By its overbreadth allows an exam-

ination on which to base the conclusion a dentist

lacks the ability to menage "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 cenying a right under the Equal Protection

Clause of the Fourteenth Anendnent if it provides:

(1) A dentist who becomes afflicted

with a mental illness (afflicted with a psychiatric

disorder) among other dentists similarly situated

may have his dental license suspended or revoked

while a dentist with a physical disorder is not

penalized?

(2) A dentist who becares a drug

addict among other centists 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 Constitutio 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 was able to retain coinsel,

where the attompt to retain counse! 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 memmingful defense in such a

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 was required in

Miami, Dade County, Florida, and Sanford, Saninole

County, Florida?

(4) Provide the accused dentist

with en 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 @ 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

pbut fol lowed by "...but not limited thereto"?

(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 whom were laymen, on

qestions 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?

STATUTES AND PROVISIONS

4, "466.24 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

Satisfaction that he:

(1) Is a habitual user of intoxi-

cants, or drugs or is afflicted with physical dis-

gability, senility, psychiatric disorders or other

disease deemed dangerous to the public health,

thus rendering him unfit for the practice of

dentistry or dental hygiene.

(2) Is grossly ignorant or

incompetent.

(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 mis-

representation 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, excent a

dental auxiliary pursuant to the provisions of this

(f) Publication or circulation

ee Le ee

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

in 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 denon-

stration of skill or methods;

(j) Practicing dentistry

along the streets or highways or any place other

than the office where the licensee regularly

practices denti stry 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 |

COPY BOUND CLOSE IN CENTE?H.

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, 1972 Supplement, at

pages 456 and 457,

"MEDICAL PRACTICE ACT"

"458.1201 Denial, suspension, revocation

of license; disciplinary powers.<=

'(1) The board shall have authority to

deny an application for a license or to discipline

a physician licensed under this chapter or any

pAb we

13 a

antecedent law who, after hearing has been adjudged

unqualified or guilty of any of the following:

'"(n) Being unable to practice

medicine with reasonable skill and safety to

patients by reason of illness, drunkenness, ex-

cessive use of drugs, narcotics, chenicals, 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 authority

to compel a physician to submit to a mental or

physical examination by physicians designated by

it. Failure of a physician to submit to such exan-

ination when directed shall constitute an adnissiom

of the allegations against him unless the failure

was due to circumstances beyond his control, conse~

quent upon which a default and final order may be

entered without the taking of testimony or pre=-

sentation of evidence. A physician affected under

this paragraph shall at reasonable intervals be

afforded an opportunity to demmstrate that he can

_ fesume the cametent practice of medicine with

-~e

13b

reasonable skill and safety to patients.”

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

probable 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

@ capital, or otherwise infarous crime, unless on

@ presentment or indictment of a Grand Jury, ex-

cept in cases arising in the land or navel forces,

or in the Militia, when in actual service in time

of War or pubic danger; nor shal! ay person be

subject for the same offense to be twice put in

jeopardy of life or limb; nor shall be compelled in

ay criminal case to be a witness against himself,

nor be deprived of life, liberty, or property, with-

out due process of law; nor shall privete property be

taken for public use, without just compensation.”

AMENDMENT 14

“SECTION 1. All persons born or natural-

ized in the United States, and subject ot the juris-

diction 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 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 with-

in its jurisdiction the equal protection of the

laws."

FACTS

5. Petitioner's license to practice

dentistry, as well as any renewals thereof, have

been revoked permanently by an order of the Florida

State Board of Dentistry under authority of the

Florida Statutes Annotated, 1971, Chapter 455, sec-

tion 466.24, while this statutory section is so vague,

indefinite and standardless as to fail to give a per-

son of ordinary intelligence fair notice that his

contemplated conduct is forbidden by this penal

statute requiring men necessarily to guess at its

meaning and application, thereby illegally posing a

clear, inminent, irreparable and great loss to Dr.

Gooper in the loss of his means to a livelihood,

Petitioer Cooper entered the Veteran's

Adninistration Hospital in Miani, Florida, on July

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

ialeli-, a-le tt’ steel h lohe S cee

His treating psychiatrist, Dr. James. Goodman, kept

Dr, 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

was 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 alcoholisn, or both, Dr, Cooper stated the cause

was more complex than that. His uncontradicted

testimony was that he was emotionally ill. On his

release petitioner returned to work as a dentist

with the Sominole County Health Departmnt 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 December 10, 1971,

All of the charges made were based on

conduct prior to the hospitalization of petitioner.

Charges began with conduct on August 22, 1963, and

ended with conduct shortly before petitioner's

rs rn = %

COPY BOUND CLOSE IN CENTE}.

hospitalization on July 14, 1971, No charges of

misconduct were made for any conduct of petitioner

after his release fran the psychiatric ward of the

hospital.

The accusation made against Or. Cooper

was open-ended,

"The above described acts, all of which

violate Chapter 455 of the Florisa Statutes are in

violation of Section 465.24 (1), (3) (a) (¢) (d)

(1) (n), of the Florida Statutes, put not limited

thereto."

The accusation made against Or. 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 Decerber, 1971.

He then began his search for an attorney to aid

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

resources, he was unable to retain counsel until

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

COPY BOUND CLOSE IN CENTEF.

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 Miani, Florida, for

service in Miani, Florida, and in Sanford, Seminole

County, Florida. This seventeen day period was

during a holiday season when many people were un-

available to counsel for petitioner due to being

out of town or busy with seasonal commitments.

Petitioner's motions for a continuance

and bill of particulars were denied by the re-

spondent.

A hearing was held. On 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

wena tie #4, “

ROE ete

COPY BOUND CLOSE IN CENTEF.

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

sented the case against Dr. Cooper as the attor-

ney for the Board, .

The Board, in addition to ruling on legal

questions as they arose throughout the heari ng, trade

the finding of guilty.

The determination of fact finding Or.

Cooper guilty was written, however, in the same

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 465.24 (1), (3), (a)

limited thereto,"

Also the Board concluded petitioner was

inable to manage his 'personal and business affairs".

FEDERAL QUESTIONS RAISED

6. The stay granted by the Suprome 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

December 4, 1972, to allow petitioner to seek re- -

view in the Suprene 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 455.24 of the Florida Statutes was

raised before the Florida State Board of Denti stry

in @ Motion to Disniss 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 disniss 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

Or. Cooper and to penalize him under

the Florida Statute authorizing a

penalty.

“Additionally, the ‘Accusetion'

is not drafted in the present tense so as

to meet the requirement that Or. 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 Miami, Florida, this

December 31, 1971,"

BOARD'S RULING ON MOTION 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 end 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 fol lowing:

"APPLICATION FOR DECLARATORY JUDGMENT

TO THE HONORABLE JUDGE OF THE DADE COUNTY

CIRCUIT COURT: |

“Plaintiff, Dr. 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.0.S.,

Secretary-Treasurer of the Florida State

Board of Dentistry; Robert M, Denton,

D.D.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,

"I, Plaintiff brings this

action for relief under Chapter 35, De-

claratory Judgnents, Florida Statutes,

1959, as amended, vhereunder the plaintiff

prays the Court will render declaratory

judgments and supplemental relief on the

existence of any inmnity, privilege, right

or status now existing belonging to the

the plaintiff as well as a declaratio of

equitable and legal relations of the

ee sy gs

eas

We,

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 456 of the two Sections,

465.24 'Suspension or Revocation of

License Certificate for Cause! and

Section 455.25 'Filing of Accusations

Against Dentists, Dental Hygicnists or

Dental Laboratories, Notice, Hearing,

Review',.

‘Plaintiff alleges the

Statutory sections 455.24 and 465,25

are unconstitutional and therefore void

due to being vague, ambiguous and in-

definite with a failure to pramulgate

Standards of misconduct and/or conduct

designed to bring discredit to the

practice of dentistry and by reason of

their failure to assure plaintiff equal

7 | re

COPY BOUND CLOSE IN CENTE}.

: 26

protection of the law and due process

of law. By these sections plaintiff is

denied knowing with what he is charged

Since aman of common 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't,!!

"4 (0) By the terms of the

"Accusation! plaintiff is accused of

having violated section 465,24 (3) (n),

Florida Statutes, 'but not limited there-

to', A statement of such violations under

various sections of 455,24 '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 465 relating to the practice of

dentistry or dental hygiene in its charge

of having violated section 466.24 (3) (n).

"The "Accusation' states Or,

Cooper ‘was a 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 merorandun

Filed in said cause and having heard argu-

ment of counsel, it is thereupon,

ORDERED AND ADJUDGED:

1. That said Application be and the

Sane 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 Charbers, at

Miani, Dade County, Florida, this 14th

day of Jawary, 1972."

Because of the ruling laid dow in the

Kionka case wherein the trial court in its final

judgment or decree is required to directly pass

upon the validity of a statute, or undertake to

set forth @ construction of the constitutional pro-

vision, no appeal wes al lowed to the Supreme Court

of Florida fran this denial. See In re Estate of

ina Z. Kionka, 121 Southern Series 2d 644. See

especially page 646.

The matter cane 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 wes raised

in the petition and brief as follows:

te Ee eel ee

"A. The statutory section

which was the basis for the revocation

of the license of Dr. 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 Dr. Cooper found him guilty '...of

violating Chapter 466 of the Florida

Statutes, and in particular Section

466.24 (1), (3) (a) (c) (d) (1) (n),

of the Florida Statutes, but not

limited thereto...'.

"These certain statutory

sections are vague and standardless

leaving the dental profession uncertain

as to the conduct they prohibit and

leaves administrative boards without

any legally fixed standards to guide

them.

"B. Additioally, that Sec-

tion 466.24 (3) (a) is violative of

petitioner's constitutional right to

privacy.

"C. Petitioner was denied

due process of law in the following

(1) When he was 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 than 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 ww acted

as 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 Dr. Cooper with a spe-

cific and definite 'Accusation', which

they refused to correct when they denied

RESELL ALLENS OLIN TAL IEEE LAIN TT TS oe

Saori one =

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", vhere it was based upon

Section 466.24 (1), was error and om

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 is oro

scribed at the time of the ‘Accusation!

or as the Section specifies tfs',"

'(S) The tAccusation! 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

P10 NPT ATPL ONY MER SSE TOTS BE TNE PECL INES RES OPS SOI I LE BAAN. EES

« ~~?

COPY BOUND CLOSE IN CENTE}F.

statutory charge made is repeated

at least once on five of the seven

pages of the ‘Accusation, Under

this information, petitioner had no |

way of knowing what he had specifically

to meet and disprove.

"(6) The Order of revocation

of the license of Dr, 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) (n),

of the Florida Statutes, but _not

Limited theretores'.!"

(Underlining is mine).

(7) The conduct of the

Board in revoking the license of Dr,

Cooper was arbitrary and unreasonable

—

war *

“S

—_

under the facts of this case. Such

an Order wes 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 465, Section 24.

The law is so drafted as to mean different

things to a man of camon intelligence

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

language. For example:

1456.24 (1) Is a (sic)

teen a

. — ee |

~ CO SRPOOR OO NERT O E Oe RT HORT Rh te Ten re Dh FOR | a iat i -

— = —S ue me -—-—-

habitual user of intoxicants or

Grugs..s.'.

‘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 intoxicaits? 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 cele-

terious effect which they had speci-

fically in mind?

465.24 (1) ...is afflicted

with physical disability, senility,

psychiatric disorders...'

"If a dentist were to be

afflicted with a severe case of

arthritis, would that be a sufficient

physical disability to allow suspension

or revocation of his 8 |

_ ‘ ~-9 ' gos. 4 ' ’ bo te,

» Salas

ili cae csreiicinisrmees me

i a ORAM, sms

porvwaiamm “f+ eek” at en aren.

—_—

"Webster's Third New

International Dictionary defines

‘senility’ as ‘the quality or state

of being senile'. “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 from each psychiatric disorder

would also be the bases of professional

differences of opinion.

1H66.24 (1) ...0r other disease

deemed dangerous to the public

health, ...'

"Is there no disease deemed

dangerous to the public health that is

not conmunicable at some stage? Is it

the intention of the Legislature to

suspend or revoke the licenses of dentists

‘ SOPY BOUND CLOSE IN CENTE!.

who have diseases that are danger-

ous to the public health even when

such diseases are not communicable

or are mot in a communicable stage?

1466.24 (2) Is grossly

ignorant or incampetent; !

"How could a man be deemed

grossly ignorant who had received a

license to practice dentistry in the

State of Florida? |

"Is a dentist who achieves

several poor results on patients over

several years of time incometent? What

if he achieves several poor results in

@ short period of time? Is that enough

to make him incompetent?

466.24 (3) Has been guilty

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 Comunistfc'or anti-religious,

would that be noma in his personal

-— why = fi 1 r

o< eT

“ : —————— VTE

. “—

Freres T|EeWrtamrm fF? CE” thst oO" een CO

NR RR OT oe RL AE Rit ne elas:

—

affairs which would bring discredit

upon the dental professiao?

‘What if a dentist actively

participated in either marches for

peace or civil rights? Would this be

such discredit?

‘what if a dentist ware to

file a bankruptcy petition in his busi-

ness, would this be misconduct in his

business which would bring discredit

upon the asntal profession? What if he

had a reputation for not paying his

bills until 120 days after they wore

due, thus achieving a poor credit rating?

Would that be such a discredit to his

profession? |

1466.24 (3) (c) Malpractice; '

‘What is maant by malpractice

for the purposes of this section?

66.24 (3) (d) Willful negli-

gence in the practice of den=

tistry or dental pro

= i it | r

{ po! poabe

Té

COPY ROLAND Cl OCE IM CE arc.

_ Eee Setebet Cd a z a intial 0 Hy Dylans THO Pra,

"Is a man who is mentally il] 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?

"h66.24 (3) (+) 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.

"1H66.24 (3) (n) Violating

any other provision of this

chapter regulating the prac-

tice of dentistry or dental °

hygiene. ' |

a wee, |

| |

: al Happectansni 1

| | ie | =

Sandee hae eee BETES

: «~ “.

COPY BOUND CLOSE IN CENTE}.

"This Subsection could

either be a repetition of other ro

visions of Section 24 which we have

already questioned or it could be any

other provision of this Chapter quit

cebte or inapplicale to an individual

dentist. !!

| The second federal question raised below

om the overbreadth of the statute allowing 21 in=

vasion of petitioner's right to privacy at page 13

in the brief susmitted to the District Court of

bopeal s

. ‘Misconduct in the persmal

affairs of an individual without a te

dard being set by the State Legislature

1s open to such abuse in cnsitive areas

of basic freedoms quar enteed ~m indivt~

dual by the Bill of Rignts that such

statute must be unconsti tutional."

The third federal aubstion was taised in

the Dada are sain Court bad the District Court

—_=>~7—"_ es

of Appeal. This questi rested on the right

insured petitioner in the Equal Protection Clause

of the Fourteenth Amendnent.

In the brief filed with the District Court

of Appeal beginning at page 13 the following argu-

ment was made: a

"In the area of the psychictric

disorders this Section 24 dees not fairly

treat any dentist who may bocome i117 with

a psychiatric disorder as opposed to a

physical disorder, This statute still treats

the psychiatric disorder as though it were

a hunen infirmity arrived at in sam feshim

different to that of a physical disorder.

A reading of the Section reveals that no

dentist who becomes physically ii] is to

be suspended whereas 6 dentist suffering

a psychiatric disorder is to be suspended.

Agsin, no provision is mede for any con=

dition, exception, or unusual circamstances,

"The medical profession has met

CORY ROWINTD CLOCE IM CE ATE LE

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, chenicals, 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

authority to compel a physician to sub-

mit to a mental or physical examination

by physicians designated by it. Failure

of a physician to submit to such exan

ination when directed shall constitute

an adnission of the allegations against

him unless the failure was due to cir-

cumstances beyond his control, conse-

quent upon which a default and final

42a

order may be entered without the taking

of testimony or presentation of evidence.

A physician affected under this para-

graph shall at reasonable intervals be

afforded an opportunity to demonstrate

that he can resume the omaen practice

of medicine with reasonable skill and

safety to patients. '"

Again in the third federal questim

dealing with the denial of due process, petitioner

argued in the Third District Court of Appeal brief

at 21:

MOPS

ECA AEST

oe "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 lav during the trial

of the matter, as well as bsing the

attorney for the Board who advised then

when they had a sufficient arount of

evidence to proceed against Dr. Cooper.

Again, the ‘appearaice of justice! was

lost wien the Board was the client of

Me, Randic end at the szne time sat as

the judge end jury ruling ca matters of

lay 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 explain to a individual who has been

accused of misconduct by the Florida

State Board of Dentistry hov the attorney

wio is prosecuting him can advise the

_ 2 ss cs “ frome sm 2 UE Pe a

Board that is trying him on matters

of lav and evidence in the trial."

‘Had petitioner been granted

a meaningful opportunity to be heard,

it might have been that the license of

Dr. Cooper would not have been revoked.

Aman suad for one. thousand dollars

would have had a greater opportunity to

deferid his one thousand dollars than

Dr. Cooper had to defend his license,

even if you assume that Dr. Cooper had

thirty days in vhich to prepare a de»

fense. No fair minded court would

require a men to go to trial if he were

sued for one thousand dollars without

an Opportunity to take necessary ution

sitions and investigate the suit filed

against him,"

The District Court of Appoal denicd the

petition for writ of certiorari as well as the

petition for a rehearing without initially passing

” PE ee a ee

athe eet aa “MRE PRR IE AAS ARI LNG RTD BHR TIT AIRE YO ER

e ~

COPY BOUND CLOSE IN CENTE}F.

= =

J Fa

upon the validity of the state statute in questi cn

so petiticner was unable to appeal to the Supreme

Court of Florida, Or, restated, he did attempt an

appeal to the Supreme Court of Florida end it was

dismissed. See Appendix, pages 24,25.

Petitioner also attempted to perfect en

appeal by writ of certiorari on the grosrd that

the decision in the instent case was in conflict

with State ve Pattishall, 126 Southern 147, 29

Florida 295 (1930), which requires a statute which

is ponal in nature to be strictly construad and

strictly follewed, The Sipreme Court of Florida

denied the patition for certicrari,

ARGUMENT UNDER FIRST FEDERAL QUESTION

Doss Dentist Cooper have the same richt

as a man accused of a crime to raise the objection

of vague, indefinite and stendardless where his

accusation arose under a "penal" statute rather

than a "criminal" statute?

This objection was raised successful ly

recently. See Rebe v. Weshinaton, 405 United States

313 (1972); and, Pepeshristou ve City of Jocksenvi llc,

405 United Stetes 156 (1972).

Yes, this Court answered in Girccio v.

Pemnsyt<xia, 382 United States 399 (1966) at page

4023 |

"vhatever label can be given the 1860 Act

there is no doubt that it provides the Stete with

a procedure for copriving an acquitted defordant

of his liberty ond property. Both Iiberty cnd pro

perty ere spscifically protected by the Fourteenth

frendnont against ony state deprivation wiich does

not moet the staxiards of due process, end this

protecticn is not to be avoidsd by the sinpie label

@ State chooses to fasten upon its conduct or its

Statute, So here this state Act whether Icbeled

‘penal’ o: not must moet the challenge that it is

unconstitutional ly vague."