Mitchell v. Gillespie

164 So. 2d 867
District Court of Appeal of Florida·Decided May 28, 1964·No. E-312·Published·Cited by 6 cases

Opinion

164 So.2d 867 (1964)

Coy MITCHELL, d/b/a Coy Mitchell Dental Laboratory, Appellant,
v.
Rupert H. GILLESPIE et al., as and constituting the Florida State Board of Dental Examiners, Appellees.

No. E-312.

District Court of Appeal of Florida. First District.

May 28, 1964.
Rehearing Denied June 25, 1964.

*869 W. Dexter Douglass, Tallahassee, for appellant.

Robinson & Randle, Jacksonville, for appellees.

WIGGINTON, Judge.

Defendant has appealed a final decree which found him guilty of practicing dentistry in the State of Florida without first having obtained a license so to do, and permanently enjoining him from thereafter practicing dentistry as defined by the laws of this state.

This action was instituted by the State Board of Dental Examiners by a complaint which charges appellant Coy Mitchell with practicing dentistry in Marianna without first having obtained a proper certificate or license, contrary to the laws of Florida. The complaint alleges that the defendant did furnish, supply, construct and reproduce prosthetic dentures to be worn in the human mouth, and did supply artificial substitutes for the natural tooth, without the written prescription of a duly licensed or registered dentist. By his answer defendant alleges that he owns and operates a licensed dental laboratory in Marianna; admits that he is not licensed to practice dentistry; and denies that he has or is practicing dentistry as defined by the laws of this state. Upon the issues made by the pleadings testimony was taken before the chancellor, who personally heard the witnesses and had the opportunity of judging their credibility and determining the weight to which their testimony was entitled. It was only after a full trial on the merits that the decree appealed was rendered.

The evidence, when considered in a light most favorable to the prevailing party, establishes the following facts. Over a period of several years duly licensed and practicing dentists who were members of the Northwest District Dental Society of Florida received numerous complaints from patients and others that appellant Coy Mitchell was unlawfully engaged in activities which constitute the practice of dentistry under the laws of this state. As a result of this information, a number of dentists, as well as some laymen, filed complaints with the State Board of Dental Examiners, protesting the alleged illegal activity of appellant Mitchell. Many of these complaints were in the form of sworn affidavits, while others were in the form of unsworn letters. The complaints became so persistent that the Northwest Dental Society adopted a resolution calling attention of the State Board of Dental Examiners to the continued flagrant violation of the State Dental Practice Act by appellant Mitchell. Because of the character and volume of the complaints received by it from its members, the illegal practice committee of the Florida State Dental Society employed the services of three investigators who made a trip to Marianna for the purpose of investigating the alleged illegal activity of appellant in the practice of dentistry. The substance of the testimony given by two of these investigators is that they called on appellant at his dental laboratory and one of them requested appellant to make for him an upper denture plate. Although appellant acknowledged that to do so would be illegal and might result in trouble both for appellant and the investigator, he nevertheless agreed to comply with the investigator's request. Appellant matched the artificial teeth he proposed to furnish with the artificial lower denture worn by the investigator, and made an impression of the investigator's gums. A wax model was also made of the investigator's mouth so that the upper denture could be made therefrom. After the upper denture was completed by appellant, the investigator paid the sum of $40.00 cash, and agreed to mail his check for the balance of $20.48, constituting the full amount charged by appellant for his services.

*870 The Dental Practice Act provides, inter alia, that any person shall be deemed to be practicing dentistry who performs dental service of any kind or who directly or indirectly makes an impression of the human tooth, teeth, or jaws; or supplies artificial substitutes for the natural teeth, or who furnishes, supplies, constructs, reproduces, or repairs any prosthetic denture to be worn in the human mouth.[1] The statute exempts from its operation any person who engages in the business of filling work orders of a licensed and registered dentist for the construction, reproduction, or repair of prosthetic dentures, bridges, plates, or appliances to be used or worn as substitutes for natural teeth.[2] It is clear from the foregoing provisions of the statute that the operator of a dental laboratory may construct dentures or artificial teeth pursuant to a prescription or work order issued by a duly licensed dentist. It is equally clear, however, that to perform such a service except pursuant to a prescription or work order of a duly licensed dentist constitutes the practice of dentistry in which one may engage only after having procured the license or certificate pursuant to the provisions of the applicable statute governing the dental profession.

The chancellor rendered his final decree in which he made specific findings of fact and rulings of law. Although the evidence adduced by the investigators was in conflict with that given by appellant Mitchell, the chancellor found that no form of enticement was used by the investigators as an inducement to appellant to perform the act in question; that neither an emergency nor act of compassion justified appellant in making the denture as testified to by the investigators, which act constitutes the practice of dentistry under the laws of this state. The court further found that the complaints registered by licensed dentists and laymen regarding the alleged unlawful activities of appellant constituted a legitimate basis for the investigation conducted and financed by the unlawful practice committee of the Florida State Dental Society. The court found that the action of the investigators merely provided an opportunity for appellant to illegally infringe upon the field of dentistry, and that neither the elements of entrapment, nor its counterpart in equity, the doctrine of clean hands, are present in this case. It was upon such findings and conclusions that the chancellor found appellant guilty of illegally practicing dentistry as defined by the laws of Florida, and permanently enjoined him from further engaging in such illegal activities in the future.

Appellant contends that the decision in this case is controlled by the decision rendered by the Supreme Court in Peters v. Brown.[3] The facts in the Peters case are somewhat similar to those in the case sub judice, but are distinguishable in certain material respects. In Peters the operator of a dental laboratory was charged by a bill in equity with illegally engaging in the practice of dentistry as defined by the statutes of this state, and an injunction was sought to restrain him from continuing such illegal activity. The Supreme Court held that the case had its genesis in a "suspicion" that appellant was doing acts that amounted to the practice of dentistry, and it was only because of such suspicion that two witnesses were employed by the State Dental Society to call at appellant's laboratory and offer him the opportunity to perform some dental work for them. According to the published opinion, the evidence revealed that the appellant ran a model of the dentures for one of the witnesse

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Mitchell v. Gillespie, 164 So. 2d 867 (Fla. Ct. App. 1964).

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