Austin v. Gordon, 75--1406
| Decision Date | 09 June 1976 |
| Docket Number | No. 75--1406,75--1406 |
| Citation | 333 So.2d 118 |
| Parties | Donald P. AUSTIN, D.D.S., Petitioner, v. Dr. Irving GORDON, D.D.S., et al., Respondents. |
| Court | Florida District Court of Appeals |
Sherwin P. Simmons and Harold W. Mullis, Jr., of Trenam, Simmons, Kemker, Scharf & Barkin, Tampa, for petitioner.
Robert L. Shevin, Atty. Gen., and Donald D. Conn, Asst. Atty. Gen., Tallahassee, for respondents.
Petitioner Donald P. Austin, D.D.S. seeks a writ of certiorari from an order of the respondent Board of Dentistry suspending his license to practice for six months.
The thrust of petitioner's argument is that the Board improperly modified the hearing examiner's findings of fact and on basis of its augmented findings adjudged an enhanced penalty of six months suspension of license rather than adopting the hearing examiner's recommended penalty of a public reprimand. We agree with petitioner and grant the writ.
In a recommended order entered on July 24, 1975, the hearing officer made the following findings of fact:
Concluding as a matter of law that Dr. Austin had violated the provisions of Fla.Stat. § 466.24(3)(e), and the regulations of the State Board of Dentistry in Ch. 21--G--9, Florida Administrative Code, the hearing officer recommended that Dr. Austin receive a public reprimand, the same penalty imposed upon the two other dentists who had practiced with Dr. Austin and who, like Dr. Austin, admitted to the accuracy of facts in the Board's accusations against them.
Upon consideration of the recommended order, the Board modified the hearing examiner's findings of fact by adding the following findings to #2 of the recommended order:
'Dr. Austin did, however, supervise and was responsible for said personnel according to competent, substantial evidence in the record.'
and by modifying #3 of the order to set forth:
'The incident resulting in charges being filed against Dr. Austin was not an isolated...
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