EDWARD STARCHK, APPELLANT,
v.
NANCY KELLEY WITTENBERG, SECRETARY OF THE FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION, APPELLEE

Fla. 5th DCA | 1981-01-23
No. 80-495
COBB and SHARP, JJ., concur.
392 So. 2d 1007 Florida District Court of Appeal, Fifth District (1981) Caution
Cited by 4 cases

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Synopsis

The Florida District Court of Appeal reversed an order holding that the Secretary of the Department of Professional Regulation was the proper party plaintiff in an injunction action against unlicensed dental practice. The court held that section 455.227(3), Florida Statutes, requires such actions to be brought in the name of the State of Florida, not in the personal name of the department head.

Holding

The Secretary of the Department of Professional Regulation may not bring an injunction action in her personal name. Section 455.227(3), Florida Statutes, expressly requires that such proceedings be filed 'in the name of the state,' and the Secretary, as an individual, has no right of action against the appellant.

Headnotes

[1] A department head may not bring a legal action in their personal name when a statute clearly mandates that such action be brought in the name of the state.

[2] The phrase "Secretary of the Department of Professional Regulation" can be merely descriptio personae, indicating the individual's role rather than conferring a personal…

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Key Quotes

“the department [the Department of Professional Regulation created by section 20.30, Fla.Stat. (1979)] may file a proceeding in the name of the state seeking issuance of an injunction”

The statute explicitly requires that injunction proceedings be brought 'in the name of the state,' not in the personal name of the department head.

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Facts & Procedural History

Appellant Starchk was enjoined from practicing dentistry. An action was brought by Nancy Kelley Wittenberg, identified as Secretary of the Florida Dep…

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Topics
Descriptio Personae Injunction Statutory Construction Statutory Interpretation

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Opinion of the Court
COWART, Judge.

COWART, Judge.

This is an appeal from an order holding that “Nancy Kelley Wittenberg, Secretary of the Department of Professional Regulation” was the proper party plaintiff in an action in which appellant was enjoined from doing acts constituting the practice of dentistry.

The authority for bringing this action is section 455.227(3), Florida Statutes, which provides in part that “the department [the Department of Professional Regulation created by section 20.30, Fla.Stat. (1979)] may file a proceeding in the name of the state seeking issuance of an injunction ....”

Section 20.05, Florida Statutes (1979), provides that each head of a department of the executive branch of state government shall execute the powers, duties and functions vested in that department. This general statement of the authority of a department head to exercise the authority of a governmental agency authorizes neither the disregard of the clear language of the above statute that such action be brought in the name of the state nor the bringing of a legal action in the personal name of the department head.

Appellee is one individual being and is not the State of Florida, a sovereign body politic, and entity embodying the organized government and people of the state in their collective capacity. The phrase “Secretary of the Florida Department of Professional Regulation,” is but descriptio personae of the individual Nancy Kelley Wittenberg and she, as an individual, has no right of action against the appellant. See Thomas v. Martin, 129 So. 602, 100 Fla. 146 (1930).

The order denying dismissal of the petition is reversed, the injunction is dissolved and the petition dismissed.

COBB and SHARP, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • McCLUSKEY v. Wittenberg, 400 So. 2d 1031 (Fla. 5th DCA 1981)
    …PER CURIAM. On the basis of Starchk v. Wittenberg, 392 So. 2d 1007 (Fla. 5th DCA 1981), the order denying dismissal of the petition is reversed, the injunction is dissolved, and the petition is dismissed. ORFINGER, COBB and SHARP, JJ., concur.…
  • Kizar v. Wittenberg, 398 So. 2d 1002 (Fla. 5th DCA 1981)
    …She also contends that section 20.05, Florida Statutes (1979), gives her, as Secretary of the Department, the power and authority to execute the powers, duties and functions vested in that Department. Unlike the situation in Starchk v. Wittenberg, 392 So. 2d 1007 (Fla. 5th DCA 1981), this action was brought in appellee’s repre [*1003] sentative capacity, since it was styled “as Secretary of the Florida Department of Professional Regulation.”2 In Starchk, this court said: Section 20.05, Florida Statutes (197…

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