STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE REVOCATION ) OR SUSPENSION OF THE LICENSE OF )

A.C. PORTERFIELD, ) CASE NO. 75-047

EDGEWATER, FLORIDA. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated hearing officer, G. Steven Pfeiffer, held a public hearing in this case on August IS, 1975, at Daytona Beach, Florida.

The following appearances were entered: James Brecher, Taylor and Brecher, Jacksonville, Florida, for the Florida State Board of Dentistry; and Dale K. Bohner, Coble, McKinnon, Reynolds, and Rothert, Daytona Beach, Florida, and William J. Roberts, Tallahassee, Florida, for A. C. Porterfield.

The Florida State Board of Dentistry ("Board" hereafter) filed an Accusation against A. C. Porterfield, and Edgewater Dental Laboratory, a registered dental laboratory. In the Accusation it is charged that Porterfield answered certain questions on an application for dental laboratory registration improperly, and that he is not of good moral character and not eligible for registration. A copy of the Accusation, the Application for Dental Laboratory Registration, and the Notice of Right to Hearing were received in evidence as Hearing Officer's Exhibit 1. Porterfield requested a hearing to contest the allegations contained in the Accusation. A copy of the Petition for Hearing was received in evidence as Hearing Officer's Exhibit

1. The final hearing was scheduled in accordance with a notice dated July 14, 1975. The Notice of Hearing was received in evidence as Hearing Officer's Exhibit 6. The Board's answer to the Petition was received in evidence as Hearing Officer's Exhibit

2. A Request for Admissions filed by the Board was received in evidence as Hearing Officer's Exhibit 4, and the Response to Request for Admissions filed by Porterfield was received into evidence as Hearing Officer's Exhibit 5. The Board called the following witnesses: Charlotte Mullens, Acting Executive Director of the Board; Dr. William R. Dannehauer, Dr. James C. Tyson, Jr.,

   Dr. Edward A Cosby, and Dr. Alvin H. Savage, all members of the Board of Dentistry; and B. T. Behrens, an investigator employed by the Board of Dentistry. A. C. Porterfield testified in his own behalf. He also called the following witnesses: Joe Comito, an instructor of dental technology who has served on the National Certification Board for Dental Technicians; Frank Perozziello, Mary Perozziello, and Curtis Vann, all of whom have been acquainted with Porterfield for some years; and Roy Wiggens and Willis Moore, both of whom are dental technicians.

   
   

   The parties stipulated that if Porterfield's wife were called as a witness she would testify that he is of good moral character. In rebuttal the Board recalled B. T. Behrens, and Alvin H. Savage.

   The Board offered one exhibit, and Porter field

   offered two exhibits, all of which were received into evidence.

   
   

   FINDINGS OF FACT

   
   

   1. A. C. Porterfield currently holds Dental Laboratory Registration Certificate No. 698 for the Edgewater Dental Laboratory, said certificate having been issued on December 5, 1974 by the Florida State Board of Dentistry.

      
      

   2. A. C. Porterfield is the owner of the Edgewater Dental Laboratory. A. C. Porter field obtained registration of Edgewater Dental Laboratory in accordance with an application for dental laboratory registration which was filed with the Florida State Board of Dentistry.

      
      

   3. In his application A. C. Porterfield gave the answer "no" to the following question: "Has any owner, partner, officer, director, stockholder, or employee ever been a party to any civil, criminal, or administrative proceeding involving any violation of any statute, rule, or regulation governing the practice of any profession, or of any violation involving the regulation of narcotics or other drugs?"

      
      

   4. In his application A. C. Porterfield gave the answer no to the following question: "Has any owner, partner, officer, director, stockholder, or employee ever been convicted of any offense involving moral turpitude?"

      
      

   5. On June 16, 1966, A. C. Porterfield pleaded guilty to an information charging him with the crime of illegal practice of dentistry. Porterfield was adjudged guilty of that offense, and was sentenced to serve one year in prison.

   6. On September 11, 1968, A. C. Porterfield was granted a full and complete pardon, and his full and complete civil rights were restored to him.

      
      

   7. Applications for dental laboratory registration are initially processed by the Executive Director of the Board of Dentistry. If no irregularities appear on an application, the Executive Director processes the application and issues a registration certificate. If irregularities do appear on the application, the Executive Director forwards the application to the members of the Board for further action. The application for registration filed by A. C. Porterfield was processed in this manner. No irregularities appeared on the face of the application, and the registration certificate was therefore issued by the Executive Director. If either of the questions set out above had been answered in the affirmative, the Executive Director would have forwarded the application to the members of the Board for further action. If the application had been forwarded to members of the Board it would have received careful consideration by them, and at least some members of the Board would have voted not to issue the registration certificate.

      
      

   8. There was not sufficient evidence adduced at the hearing to substantiate a finding that A. C. Porterfield intentionally misled the Board by answering the above questions in the negative. Porterfield apparently did not read the questions carefully, and may have been con fused about the effect of his pardon. It is evident that the answers to the questions were erroneous. If the questions had been answered affirmatively, the application would have been processed differently, and may have been denied.

      
      

      CONCLUSIONS OF LAW

      
      

   9. The Division of Administrative Hearings has jurisdiction over the subject matter of this case, and over the parties. Florida Statutes Chapters 120, 466.

      
      

   10. The Florida State Board of Dentistry has authority to deny applications for registration of a dental laboratory under certain circumstances. Conviction of a crime involving the illegal practice of dentistry on the part of an application could justify denial of such an application. Florida Statutes Chapter 466, Rules and Regulations of the Florida State Board of Dentistry, Florida Administrative Code, Chapter 21G-5.01.

       
       

   11. The pardon issued to A. C. Porterfield does not have the effect of rendering the conviction as if it never happened. A

       pardon does not necessarily have the effect of restoring a person to professional status lost as a result of the conviction. State v Snyder, 136 Fla. 875, 187 So. 381 (1939); Page v Watson, 140

       Fla. 536, 192 So.205 (1938)

       
       

   12. The fact that A. C. Porterfield erroneously answered the questions respecting previous convictions justifies the revocation of the registration certificate issued to the Edgewater Dental Laboratory.

RECOMMENDED ORDER

Based upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED:

That registration certificate number 698 issued to A. C. Porterfield for the Edgewater Dental Laboratory be revoked.

ENTERED this 30th day of October, 1975, in Tallahassee, Florida.

G. STEVEN PFEIFFER, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

COPIES FURNISHED:

James O. Brecher, Esquire Taylor and Brecher

605 Florida Theatre Building

128 E. Forsyth Street Jacksonville, Florida 32202

William J. Roberts, P.A.

217 South Adams Street Tallahassee, Florida 32302

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DISTRICT COURT OPINION

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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA

A.C. PORTERFIELD, NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND

Petitioner, DISPOSITION THEREOF IF FILED.

vs. CASE NO. BB-14

DOAH CASE NO. 75-430

STATE OF FLORIDA BOARD OF DENTISTRY,

Respondent.

/ Opinion filed June 9, 1976

Petition for Writ of Certiorari, original jurisdiction.

Michael Eqan of Law of Offices of William J. Roberts for appellant.

Taylor and Brecher for appellee. Boyer, Chief Judge.

Petitioner has addressed his Petition for Writ of Certiorari to respondent's order which revoked his dental laboratory registration certificate. His primary argument is that respondent is without statutory authority to promulgate standards for dental laboratory registrants.

The facts, as contained in the hearing officer's report, are undisputed. Petitioner is currently the owner of Edgewater Dental Laboratory. In June of 1966, he pleaded guilty to an information charging him with the crime of illegal practice of dentistry, was adjudicated guilty, and sentenced to serve one year in prison. He received a full and complete pardon in 1968. In hi application for dental laboratory registration, petitioner was asked whether

he had ever been a party to a court proceeding involving any violation of rule or statute governing the practice of any profession, and whether he had ever been convicted of any offense involving moral turpitude. He answered both questions in the negative.

As the hearing officer's findings indicate, if either of the two question had been answered in the affirmative, the executive director of the board would have forwarded the application to the members of the board for further action, and at least some members of the board would have voted not to issue the registration certificate. Petitioner's application was "routinely" processed, and a certificate was issued by the Florida State Board of Dentistry in December of 1974.

Even though the hearing officer did not conclude that petitioner intentionally answered the questions incorrectly because he may have failed to read the questions carefully and may have been-confused about the effect of his pardon, the hearing officer nevertheless concluded, and respondent agreed, that petitioner's registration certificate should be revoked because the answers to the questions were erroneous, and "if the questions bad been answered affirmatively, the application would have been processed differently, and may have been denied."

The determinative issue is whether respondent had the authority to ask the questions which respondent answered incorrectly. The questions were drafted pursuant to Rule 21G- 5.01, F.A.C., which provides that only applicants of good moral character shall be eligible for registration. It is clear that the rule must of necessity be based on the statutes pertaining to dental laboratories (F.S. 466.50-466.58). Examination of those statutes reveals no authority pursuant to which a rule such as Rule 21G-5.01 might be validly promulgated. Under the statutory system devised by the legislature, respondent may insist upon payment of a $10.00 fee and completion of the registration form.

F.S. 466.52. There is no statute which gives respondent authority to promulgate qualifications for dental laboratory registrants.

Respondent argues that the rule which petitioner challenges here is proper under respondent's statutory duty to regulate and control all facets of the practice of professional dentistry. (F.S. 466.01) and its authority to promulgate rules (F.S.

466.56) While it is true that respondent has the duty to regulate the practice of dentistry in the State, respondent's powers cannot be interpreted to exceed those granted to it by the legislature.

It is likewise true that while respondent has the power to promulgate rules, respondent is given statutory authority to promulgate only those rules necessary to enforce the provisions of Chapter 466. We have concluded that the legislature did not intend for dental laboratory registrants to be subject to standards of behavior as promulgated by respondent. The very use of the term "registration" as opposed to "license" is significant. We cannot find that the legislature's use of the two terms is a distinction without a difference.. In common usage, there is a great-distinction between the two terms. Moreover, within the provisions of Chapter 466 itself, dentists and dental hygienists must apply for and receive licenses, are expressly required to prove that they are of good moral character. See F.S. 466.13 and

466.37. By requiring that dental laboratories only be registered, the legislature has insured that the stated object of the statute (the safeguarding of the public health by insuring that dental laboratories operate only upon written work orders of a licensed dentist) is met.

Finally, respondent asserts that its revocation of petitioner's, registration certificate can be affirmed on an independent basis. According to respondent, since the answers on petitioner's application for registration, which were sworn to under oath, were; erroneous and were relied on by respondent, the application was properly revoked. Respondent's argument begs the question. Given our conclusion that the questions which petitioner erroneously answered could not have been validly asked in the first place, it would be anomalous indeed for us to affirm the revocation of petitioner's registration certificate on the basis that he erroneously answered the improperly posed questions. whether we would have reached a different result if there had been a finding that petitioner intentionally and willfully answered the questions falsely would be pure speculation. In any event, the hearing examiner's report, which was adopted by respondent, expressly declined to make such a finding.

Neither do we here opine as to whether respondent should be granted broader powers to regulate dental laboratories. Certainly all persons should be of good moral character: But as to which occupations such restrictions will be governmentally imposed is a legislative function, within the confines of the constitution.

Consequently, the Petition for Writ of Certiorari is granted with directions that respondent rescind its revocation of petitioner's registration certificate.

SMITH, J. and HODGES, JOHN G., Associate Judge, CONCUR.

MANDATE

From

DISTRICT COURT OF APPEAL OF FLORIDA FIRST DISTRICT

To the Honorable Robert M. Denton, D.D.S. Executive Director State of Florida, Board of Dentistry

WHEREAS, in that certain cause filed in this Court styled: Division of Administrative Hearings

A.C. PORTERFIELD

v. Case No. BB-14

Your Case No. 75-047

STATE OF FLORIDA, BOARD OF DENTISTRY

The attached opinion was rendered on June 9, 1976.

YOU ARE HEREBY COMMANDED that further proceedings be had in accordance with said opinion, the rules of this Court and the laws of the State of Florida.

WITNESS the Honorable Tyrie A. Boyer

Chief Judge of the District Court of Appeal of Florida, First District and the Seal of said court at Tallahassee, the Capitol, on this 21st day of July, 1976.

Clerk, District Court of Appeal of Florida, First District

Docket for Case No: 75-000047

Orders for Case No: 75-000047