MARSHALL WRIGHT, JAMES MARCUS, A. C. WILHELM, A. H. RODRIQUEZ AND JUDD CHAPMAN, CONSTITUTING THE FLORIDA STATE BOARD OF OPTOMETRY, PETITIONERS,
v.
KARL ROLLER, RESPONDENT
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The Florida State Board of Optometry suspended an optometrist's license for alleged display advertising violations, but conducted a second hearing without notice to the respondent. The court held that the Board violated due process by conducting a separate proceeding ex parte and denied the Board's appeal.
The Board violated essential requirements of law by conducting the second hearing as a separate proceeding without notice to the respondent and entering the suspension order based on an ex parte hearing. When the first proceeding was closed, the respondent was entitled to due notice and an opportunity to be heard on any subsequent proceeding.
“It is clear from the record that the second hearing was not a continuation of the first. The first proceeding was closed, and on the later proceeding the respondent was entitled to due notice and an opportunity to be heard.”
Establishes that separate proceedings require separate notice and opportunity to be heard
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Join FLexlaw to unlock all legal intelligenceThe Board of Optometry initiated disciplinary proceedings against Karl Roller under Florida Statutes §§ 463.05 and 463.11 for violating the Board's ru…
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The Florida State Board of Optometry filed its notice of appeal from a circuit court order granting certiorari and quashing an order by which the Board had suspended appellee’s license as an optometrist for a period of 90 days.
In reviewing the Board’s suspension order, on certiorari, the Circuit Court was acting in the exercise of its appellate *486jurisdiction (see Codomo v. Shaw, Fla. 1958, 99 So.2d 849), and its judgment on such certiorari was not appealable to this court (Alliance for Conservation of Natural Resources in Pinellas County v. Furen, Fla. App.1958, 104 So.2d 803); but we treat the appeal as a certiorari under § 59.45, Fla.Stat., F.S.A. See Alliance for Conservation of Natural Resources in Pinellas County v. Furen, supra.
We conclude that the able circuit judge reached the correct result in setting aside the suspension order.
The Board proceeded against respondent Karl Roller, under §§ 463.05 and 463.11, Fla.Stat., F.S.A., for violation of the Board's rule against “display advertising”.
The procedure prescribed by the statute required that the person to be affected should be given “at least thirty days notice of a time and place of hearing before said board and an opportunity to be heard.” Those requirements were duly met on the first hearing.
However, due to some inadvertence the Board was unable to produce the documentary evidence which was necessary in order to establish the use of display advertising by respondent which was the gravamen of the proceeding. Thus no case was made out against the respondent at the original hearing sufficient to support an order of suspension, and the Board so recognized; and no suspension order was made at that time.
A second hearing was had at which the evidence referred to was produced and which resulted in the suspension order. Neither respondent nor his counsel received notice of the second hearing, and for that reason they were not present. It is clear from the record that the second hearing was not a continuation of the first. The first proceeding was closed, and on the later proceeding the respondent was entitled to due notice and an opportunity to be heard. On this record respondent’s contention that he was deprived of that notice and opportunity must be sustained. It follows that by proceeding against respondent ex parte under those circumstances, and entering the order of suspension thereon, the Board departed from essential requirements of law.
Accordingly, the present appeal is treated as a petition for writ of certiorari, and certiorari is denied.
It is so ordered.
PEARSON, J., and MILLEDGE, STANLEY, Associate Judge, concur.
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Harry Needelman, M.D. v. Dade Cnty. Med. Ass'n, 205 So. 2d 17 (Fla. 3d DCA 1967)…10, 1960. The subsequent hearing was held on October 24, 1960. . For other Florida eases dealing with the requirement of notice before termination of membership, see Tropical Park v. Ratliff, Fla.1957, 97 So. 2d 169; Wright v. Roller, Fla.App.1959, 111 So. 2d 485; Florida State Board of Medical Examiners v. James, Fla.App.1965, 175 So. 2d 815. See also Virgin v. American College of Surgeons, 1963, 42 Ill.App.2d 352, 192 N.E. 2d 414; Leland v. Kansas State Board of C. Examiners, 1954, 176 Kan. 334, 270 P. 2d…
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Ludwig v. Cochran, 114 So. 2d 484 (Fla. 1st DCA 1959)…ourt, pursuant to Section 59.45, Florida Statutes, F.S.A., which is applicable to District Courts of Appeal of Florida (Alliance for Conservation of Natural Resources in Pinellas County v. Furen, Fla.App., 104 So. 2d 803; Wright v. Roller, Fla.App., 111 So. 2d 485) regards the notice of appeal and the record herein as a petition for certiorari duly presented to this Court. So considered, and finding ho error, cer-tiorari is denied. WIGGINTON, C. J., and STURGIS and CARROLL, DONALD K., JJ., concur.…
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Nordin v. Bd. of Architecture, 17 Fla. Supp. 100 (Dade Cty. Cir. Ct. 1960)…Florida Appellate Rule 4.1, Florida Appellate Rule 4.5 nor the cases cited above specify which circuit court shall perform the appellate function thereby imposed, but it is clear that the review intended is appellate in its nature (Wright v. Roller, 111 So. 2d 485; Alliance v. Furen, 104 So. 2d 803). Petitioner acknowledges that in his brief. Hence the normal channels of review would prevail and certiorari would be entertained in the circuit court exercising appellate jurisdiction in the geographical location…
Authorities Cited
- Codomo v. Shaw, 99 So. 2d 849 (Fla. 1958)
- The Alliance FOR Conservation OF Natural Res. IN Pinellas Cnty. v. Furen, 104 So. 2d 803 (Fla. 2d DCA 1958)