Davis v. Department of Professional Regulation, AU-402

• Decision Date: 23 August 1984
• Docket Number: No. AU-402,AU-402
• Citation: 457 So.2d 1074
• Parties: Sammie Lee DAVIS, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.
• Court: Florida District Court of Appeals

Page 1074

457 So.2d 1074

Sammie Lee DAVIS, Appellant, v. DEPARTMENT OF PROFESSIONAL REGULATION, Appellee.

No. AU-402.

District Court of Appeal of Florida First District.

Aug. 23, 1984.

William F. Kachergus of Maness & Kachergus, Jacksonville, for appellant.

Joseph W. Lawrence, Dept. of Professional Regulation, Tallahassee, for appellee.

JOANOS, Judge.

Sammie Lee Davis appeals from a final order of the State of Florida Department of Professional Regulation, Board of Funeral Directors and Embalmers, which revoked his license as a funeral director and embalmer. The question before us is whether appellant, in accepting a position as manager of a funeral home during a period when his license was suspended, was lawfully determined to have violated Sections 470.031(1)(e) and 470.036(1)(i), Florida Statutes. We conclude that he was not.

Appellant had been involved in the funeral business since 1932, receiving a license to embalm in July 1945, and a license to serve as funeral director in July 1947. On March 27, 1980, appellant's dual license was suspended for one year, and on April 1, 1981, he was issued probationary licenses for a three year period. The suspension and probation followed appellant's conviction on federal charges of cashing two social security checks for families of deceased persons. On the conviction, he served four months and 17 days in the federal correctional system.

Before appellant went to prison, Rogers, a witness and complainant in this license-revocation proceeding, asked appellant to work for him when his sentence was completed. Pursuant to this job offer, appellant was employed by Rogers from June 1980 until March 1982. Testimony was presented and the hearing officer found, that the job offer was predicated on Rogers' desire to capitalize on appellant's popularity with the black community. Complainant Rogers acknowledged that his business increased from $70,000 earned in the quarter before appellant went to work for him to $146,791 earned in the first quarter of 1982, when appellant was working for him. Rogers fired appellant in March 1982.

On August 19, 1980, in an effort to comply with the requirements of the Board during his license suspension, appellant notified the Board that he was working for Rogers' Mortuary. No action was taken by the Board in response to appellant's letter. At the hearing, appellant testified that he filed no further reports with the Board because Rogers told appellant that as appellant's employer, he (Rogers) had the responsibility of filing the reports.

On March 11, 1982, Rogers filed a criminal complaint charging appellant with grand theft. It was this complaint that initiated an investigation and the proceedings which culminated in revocation of appellant's license. The grand theft charges filed against appellant were eventually dropped by the state attorney's office.

With regard to the operation of the mortuary business, it was uncontroverted that appellant did no embalming. The testimony that appellant engaged in directing funerals came only from Rogers, the complainant. However, there was testimony that indicated that patrons of the mortuary felt that appellant was making all the arrangements for certain funerals.

In its final order dated August 17, 1983, the Board dismissed Counts One and Two of the Administrative Complaint, but found that appellant had violated Sections 470.031(1)(e) and 470.036(1)(i), Florida Statutes as charged in Count Three. Appellant's dual license to practice the profession of funeral directing and embalming was revoked and he was fined $500.

Count Three of the Administrative Complaint, the only count which the board found appellant had violated, charged: (1) that on or about March 27, 1980, the Board had suspended appellant's license for one year and placed him on three years probation following the license suspension; (2) that appellant became manager of a funeral home while his license was suspended; and (3) that based upon the foregoing, appellant had violated Sections 470.031(1)(e) and 470.036(1)(i), Florida Statutes. ¹

This case points up the tension between the strict construction required in a license revocation proceeding and the deference an appellate court is called upon to accord administrative findings of fact. Cases dealing with license revocation consistently hold that statutes authorizing the revocation of a license to practice a business or profession must be strictly construed for they are penal in nature. State v. Pattishall, 99 Fla. 296, 126 So. 147 (1930). Pattishall was a revocation proceeding against a licensed dentist. The accusation charged the dentist with employing one who was not a licensed dentist of the state, and allowing this person to practice dentistry in his office. The court found that the accusation failed "to charge the dentist with having committed any act which under the provisions of the statute constitute grounds for the revocation of his license to practice dentistry." Id. 126 So. at 148. The court analogized the provisions of the statute in regard to acquiring a license to practice dentistry and the revocation of such license to the statutes in regard to procuring a license to practice law and the disbarment of attorneys. In so doing the court found that the law applicable to disbarment of attorneys was applicable, and cited to State ex rel Fowler v. Finley, 30 Fla. 302, 11 So. 500, 503 (1892), where the court said:

"The proceedings in such matters are summary in their nature, but not arbitrary or despotic. The court acts in the exercise of a sound discretion and according to law. The charges preferred against the attorney should be specific, due notice of them must be given, and full opportunity afforded for an answer and a fair investigation of their merits. The consequences to an attorney of a judgment disbarring him from the practice of his profession are serious enough to suggest such a course. His profession may be a source of great value to him, equal to any property rights which he may have, and the loss of it may inflict destitution and poverty upon himself and family. In such proceedings the attorney is clearly entitled to have the causes urged as a ground for his disbarment specifically and particularly stated, in order that he may meet them, and a defect in the proceedings in this respect is a ground for interposition by the supreme court. Ex parte Bradley, 7 Wall. 364 ; Ex parte Robinson, 19 Wall. 505 ; State ex rel v. Kirke , supra; Ex parte Burr, 9 Wheat. 529 ."

This insistence that charges respecting revocation of a license must be "particularly and specifically stated" was reiterated by this court in Bowling v. Dept. of Insurance, 394 So.2d 165, 171 (Fla. 1st DCA 1981), where the court said "[i]n a proceeding under a penal statute for suspension or revocation of a valuable business or professional license, the term competent substantial evidence takes on vigorous implications that are not so clearly present on other occasions for agency action under Chapter 120." In Bowling the court echoes the concern expressed by the Florida Supreme Court in State v. Pattishall, supra, with regard to the higher seriousness accorded to the requirement of substantiality when the matter at stake is a license that allows one to earn a livelihood, saying "when the proceeding may result in the loss of a valuable business or professional license, the critical matters in issue must be shown by evidence which is indubitably as 'substantial' as the consequences." Bowling, supra, at 172. In Bowling, the court rejected the Department's evidentiary findings on the ground that they lacked a substantial basis for establishing Bowling's guilt on the eight counts with which he was charged. The court vacated the order revoking Bowling's license. Substantiality of evidence in license suspensions and revocations was stressed too in Bach v. Florida State Board of Dentistry, 378 So.2d 34 (Fla. 1st DCA 1980). Bach concerns a six-month suspension of a dentist's license and a one-year suspension of license for a dental hygienist, the wife of the suspended dentist. The court found that the record clearly indicated that Mrs. Bach administered an anesthetic, a procedure which a dental hygienist is precluded from performing. Evidence that the dentist permitted this conduct was circumstantial. The court reinstated the dentist's license, ruling that the law of agency would not permit the conclusion, in the absence of evidence of Dr. Bach's knowledge, that he impliedly authorized or permitted his wife's proscribed acts. A recent Third District Court of Appeal case, Robinson v. Florida Dept. of Dentistry, 447 So.2d 930 (Fla. 3d DCA 1984), Opinion filed May 2, 1984, turns on the substantiality requirement of Bowling. An administrative complaint was filed against Robinson in 1981. The hearing officer's recommendation of license suspension and fine was predicated on the testimony of one dentist, a general practitioner, employed by the complainant after he left Robinson. The court termed it self-evident that a professional license ought not be suspended on the testimony of one interested witness. The court found no competent substantial evidence to support revocation and reversed.

In addition to substantial evidence to support a license revocation, the cases require that the accusation state with specificity the acts complained of, to allow the licensee a fair chance to prepare a defense. Hickey v. Wells, 91 So.2d 206 (Fla.1957). In Hickey a dentist was charged with (1) allowing an unlicensed person to practice dentistry, (2) being the proprietor of the office where the illegal activity occurred, and (3) giving aid in performance of the unlawful acts by making his equipment available. The Board suspended Hickey for three years. The Supreme Court reversed on the ground that Hickey had not been accorded a fair opportunity to prepare a defense because the charge did not specify that "the practice of...