State ex rel. Greenberg v. Florida State Bd. of Dentistry

• Decision Date: 25 June 1974
• Docket Number: No. V--90,V--90
• Citation: 297 So.2d 628
• Parties: STATE of Florida ex rel. Barbara GREENBERG, Relator, v. The FLORIDA STATE BOARD OF DENTISTRY, Respondent.
• Court: Florida District Court of Appeals

Page 628

297 So.2d 628

STATE of Florida ex rel. Barbara GREENBERG, Relator, v. The FLORIDA STATE BOARD OF DENTISTRY, Respondent.

No. V--90.

District Court of Appeal of Florida, First District.

June 25, 1974.

Rehearing Denied Aug. 6, 1974.

C. Gary Williams, of Ausley, McMullen, McGehee, Carothers & Proctor, Tallahassee, Robert C. Gobelman, of Mathews, Osborne & Ehrlich, Jacksonville, and Rex Conrad, of Fleming, O'Bryan & Fleming, Ft. Lauderdale, for relator.

Richard L. Randle, of Slater & Randle, Jacksonville, for respondent.

BOYER, Judge.

This case is before us on Suggestion for Writ of Prohibition filed by the relator against the respondent, the Florida State Board of Dentistry. The relator alleges in her suggestion for the writ, inter alia, that she is not and never has been a party to any cause or proceeding before the respondent, nor is she, nor has she ever been, an applicant for, or a holder of, a license to practice dentistry or any other trade, calling, or profession, the regulation or supervision of which is vested in the respondent. She further alleges that on January 24, 1974, a deputy sheriff of Broward County served upon her a writing or document purporting to be a subpoena signed by the secretary-treasurer and the attorney for the respondent. A copy of that document is attached to the suggestion. It commands the relator to appear before the respondent at a time and place therein designated, reciting that failure to appear may result in the relator being in contempt of court. It is pertinent to here note that the said 'subpoena' does not bear any style or heading, nor does it recite any proceeding pending before the respondent board, nor the nature of the matters to be discussed, not the nature of the questions to be answered or asked. The suggestion further alleges that upon relator's attorney conversing with the respondent's attorney, relator's attorney was advised that no cause nor proceeding relating to F.S. Section 466.08, F.S.A., was being held by the respondent, but rather that the 'subpoena' had been issued and served upon relator to compel her to give an account to the respondent of a certain newspaper article which had been written by the relator and published in the Fort Lauderdale News which article the respondent felt to be libelous of it.

Upon considering said suggestion for writ of prohibition, this court issued its rule nisi returnable at a time certain. At the appointed time, both relator and respondent appeared, through their respective attorneys of record, for oral argument.

The jurisdiction of this court is sought to be invoked pursuant to Rule 4.5, Florida Appellate Rules, 32 F.S.A., 1962 Revision, and Section 446.25 and 120.31, F.S.A., and Article V, § 4(b)(2), of the Constitution of the State of Florida, F.S.A.

Respondent admits that the 'subpoena' was not issued pursuant to any of the powers or duties vested in respondent by F.S. 466.08, F.S.A., nor any of the matters contemplated by that statute, but contends that it derives its power to issue subpoenas and to conduct investigations by virtue of F.S. Sections 466.11 and 466.33, F.S.A.; contending that it has the duty and power to conduct investigations generally to determine whether there have been violations of the provisions of F.S. Chapter 466, F.S.A.

Black's Law Dictionary, 4th Edition, defines the term and word subpoena as follows:

'Subpoena. (Lat. Sub, under, poena, penalty). A process to cause a witness to appear and give testimony, commanding him to lay aside all pretenses and excuses, and appear before a court or magistrate therein named at a time therein mentioned to Testify for the party named under a penalty therein mentioned. Alexander v. Harrison, 2 Ind.App. 47, 28 N.E. 119, 121.

'This is called distinctively a subpoena ad testificandum.

'A mandatory writ of process directed to and requiring one or more persons to appear at a time to come and Answer the matters charged against him or them. Gondas v. Gondas, 99 N.J.Eq. 473, 134 A. 615, 618.

'The writ of subpoena was originally proceeding in courts of common law to enforce attendance of witness, but was used in chancery for same purpose as citation in courts of civil and canon law, to compel appearance of defendant and to Require him to answer plaintiff's allegations on oath. Gondas v. Gondas, 99 N.J.Eq. 473, 134 A. 615, 618.' (Emphasis supplied)

The respondent concedes that the document entitled a subpoena may be defective in form, but insists that the respondentboard, or any member thereof, has the power to subpoena citizens to appear before it for the purpose of investigating matters beyond the scope of the powers and duties set forth in the eleven subsections of Florida Statute 466.08, F.S.A. That statute provides as follows:

'Organization, powers, duties, etc., of board.--The board shall exercise, subject to the provisions of this chapter, the following powers and duties:

'(1) The board shall organize annually by electing one of its members as chairman, one as vice-chairman, and one as secretary-treasurer. The board may appoint or employ such other personnel, including but not limited to an executive director as may be necessary to assist the board in doing and performing all of its powers, duties and obligations as set forth in this act; provided, however, that all duties and responsibilities delegated to the executive director by this act or by the board shall be performed by the executive director under the direction and authorization of the board. The executive director shall be a graduate of an accredited college of dentistry. The board shall adopt such rules for its government as it may deem proper and shall adopt and use a corporate seal. It shall meet at least once a year, and more frequently if necessary, at such times and places as it may from time to time designate.

'(2) Conduct examinations to ascertain the qualifications and fitness of applicants for licenses to practice dentistry and for licenses to practice dental hygiene.

'(3) Prescribe rules and regulations for examination of candidates.

'(4) Formulate rules and regulations by which dental schools and colleges, dental hygiene schools and colleges, schools of dental technology and dental auxiliary programs shall be approved.

'(5) Conduct hearings on proceedings to revoke or suspend, and revoke or suspend, a license, license certificate, renewal certificate or dental laboratory registration certificate granted under the authority of this chapter or previous laws, when evidence has been presented showing violation of any of the provisions of this chapter by the holder of such license, license certificate, renewal certificate, or laboratory registration certificate.

'(6) Conduct proceedings relative to the issuance or reissuance of licenses, license certificates, renewal certificates or dental laboratory registration certificates which have been revoked or suspended by board order.

'(7) Grant licenses, issue license certificates, renewal certificates or dental laboratory registration certificates in conformity with this chapter to such applicants as have been found qualified.

'(8) Issue permits for dental internes, institutional dentists and nonprofit corporations in conformity with this chapter to such applicants as have been found qualified.

'(9) Make such rules and regulations as are necessary to carry out and make effective the provisions of this chapter.

'(10) Establish educational and training requirements for dental auxiliaries and dental hygienists which meet the standards accredited by the Council on Dental Education of the American Dental Association.

'(11) Promulgate such rules and regulations in regard to those dental services, procedures, and duties that may be delegated to dental auxiliaries, including dental hygienists, as may be appropriate and necessary under the provisions of this chapter.'

Respondent relies primarily on the provisions of Florida Statute 446.11, F.S.A. contending that the powers therein provided are in addition to, and not necessarily to be exercised within the confines of, the powers and duties prescribed in Florida Statute 466.08, F.S.A., above quoted.

Florida Statute 466.11, F.S.A., provides as follows:

'Power of board to administer oaths; issue subpoenas, service; penalty for refusing to obey subpoena or order.--Any board member or its executive director shall have the power to administer oaths, take affirmations of witnesses, issue subpeonas and send for persons or papers, and to compel the attendance of witnesses, the production of all necessary papers, books, records, documentary evidence and materials, in any hearing, investigation, accusation or other matter coming before the board. The sheriffs of the several counties of the state or other officers authorized to serve process shall serve any subpoena or other order issued by the board member or executive director of the board and shall receive for such service the fees provided for like service to be paid on certification of such member or authorized person from any funds in the hands of the board. If any person refuses to obey any subpoena, process or order issued by the board, the said board may certify this fact to the circuit court of the judicial circuit wherein such proceedings are being held and it shall be the duty of the court to require such person to appear before it and show cause why he should not be adjudged in contempt, and, if upon hearing, the court shall find such person to be in contempt the court shall deal with such person as provided in § 446.42.'

Respondent also relies upon the provisions of Florida Statute 466.33, F.S.A., which provides as follows:

'Enforcement of chapter; duty of board.--'(1) The board and its executive director shall assist prosecuting officers in the enforcement of this chapter and it shall be the duty of the board and its executive director to furnish the prosecuting officer with such evidence as it may ascertain, to assist him in ...