Dr. Jack LURIE, Petitioner, v. FLORIDA STATE BOARD OF DENTISTRY, Respondent, 288 So. 2d 223

ERVIN, Justice. We review on petition for writ of certio-rari a per curiam without opinion decision of the District Court of Appeal, Fourth District, in Lurie v. Florida State Board of Dentistry, Fla.App., 264 So.2d 479. From the record proper it appears we have jurisdiction for a certiorari review as will hereinafter appear.

The question to be decided is whether a grant of compelled testimony immunity from criminal prosecution which, at the time granted in 1967, included immunity from administrative proceedings based upon the same acts, would continue to render the recipient immune from later administrative proceedings despite the decision of Headley v. Baron, Fla.1969, 228 So.2d 281. The facts in the case are: On August 30; 1967 Petitioner was compelled to testify before the County Solicitor of Brevard County regarding alleged illegal transactions between himself and Arnold Rosen-baum.

At that time charges were pending against Rosenbaum, who allegedly had been in possession of a stolen Cadillac and had made a false statement on an application for an automobile title certificate. The interrogation of Petitioner not only concerned the charges against Rosenbaum, but also involved matters relating to the operation of a stolen car ring in Brevard County and Petitioner’s acquisition of two automobiles from Rosenbaum. One year later Petitioner was informed against for receiving a stolen automobile and aiding Rosenbaum in the concealment of stolen property.

Petitioner sought a writ of prohibition from the Fourth District Court of Appeal, contending he was immune from prosecution under

Section 932.29, F.S.1967, F.S.A., which provided that a person could not be excused from testifying in certain prosecutions on the ground he might incriminate himself, but when he did so testify he could not “be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter, or thing concerning which he may so testify. . . ” While that cause was pending, this Court on July 16, 1969 in Headley v. Baron, Fla.1969, 228 So.2d 281, overruled Florida State Board of Architecture v. Seymour, Fla.1952, 62 So.2d 1. Seymour held the above-quoted portion of

Section 932.29, which grants immunity from prosecution or from subjection to “any penalty or forfeiture,” was not limited in application to criminal prosecutions, but also provided immunity from subjection to administrative revocation of professional license proceedings. Headley, however, held that “the words ‘penalty or forfeiture’ when read in the entire context of

Section 932.29 clearly refer [only] to a criminal penalty of forfeiture.” Under Headley, therefore,

Section 932.29 grants immunity only from criminal prosecutions and can not be used to immunke one against loss of a professional license in an administrative proceeding as a result of grand jury testimony. On September 19, 1969 the Fourth District Court of Appeal made absolute the writ of prohibition and held that Petitioner was immune from the criminal prosecution for his activities with Rosenbaum. State ex rel. Lurie v. Rosier, Fla.App.1969, 226 So. 2d 825.

On June 22, 1971 Respondent Board of Dentistry filed a two-count accusation against Petitioner, a state licensed dentist, charging him with (1) wilful negligence and malpractice in the removal of a tooth, and (2) conspiracy and concealment of stolen cars. Petitioner filed a motion to dismiss, contending, among other things, that he was fully immune from any administrative penalty or forfeiture for his alleged stolen car actions because of

Section 932.29 and the District Court mandate in State ex rel. Lurie v. Rosier, supra. The Board found him guilty as charged and on August 21, 1971 revoked his license for one year on the malpractice charge and permanently on the concealing stolen automobile charge. Petitioner filed a petition for writ of certiorari with the District Court of Appeal, Fourth District; that court per cu-riam without opinion denied the petition on June 30, 1972. See 264 So.2d 479. We granted the Petition for Writ of Certiorari because of conflict with this Court’s decision in Florida Forest and Park Service v.

Strickland, 1944, 154 Fla. 472, 18 So.2d 251, where we held: “That where a statute has received a given consideration by a court of supreme jurisdiction and property or contract rights have been acquired under and in accordance with such construction, such rights should not be destroyed by giving to a subsequent overruling decision a retrospective operation.” (Emphasis supplied.) We have re-examined the cases of Headley v. Baron, supra, and Florida State Board of Architecture v.

Seymour, supra, in the light of the circumstances of this case and also in the light of the weight of judicial authority throughout the nation on the question of citizens’ immunities from the imposition of penalties and forfeitures in administrative proceedings where they are compelled to testify before grand juries, prosecuting officers, or courts concerning matters or things which might incriminate them. We are convinced now this Court was in error in overruling Florida State Board of Architecture v. Seymour, supra.

See 9 Fla.Jur., Criminal Law § 276; 1 Fla.Jur., Administrative Law and Procedure § 82, and 68 A.L.R. 1503; 2 Am.Jur.2d Administrative Law §§ 267, 268, 269. Compare Shapiro v. United States, 335 U.S. 1, 68 S.Ct. 1375, 92 L.Ed. 1787, reh. den., 335 U.S. 836, 69 S.Ct. 9, 93 L.Ed. 388; Smith v. United States, 337 U.S. 137, 69 S.Ct. 1000, 93 L.Ed. 1264, annotation; Englander v. State (Fla.), 246 So.2d 746, and Lefkowitz v. Turley, 94 S.Ct. 316, 37 L.Ed.2d 274. Opinion filed November 19, 1973.

Where testimony is so compelled the person (witness) testifying should have the benefit of immunity statutes or other protections afforded by law. As Justice Terrell pointed out in the Seymour case, the guarantee must be as broad as the constitutional guaranty.

He also said for the Seymour court, “A forfeiture is also a penalty and has to do with loss of property, position or some other personal right .” and, “It is accordingly our view that a proceeding to revoke appellee’s certificate as an architect amounts to a prosecution to effect a penalty or forfeiture as contemplated by the (statute) . . .”62 So.2d, text page 3. See State ex rel. Vining v. Florida Real Estate Commission (Fla.), 281 So.2d 487 headnote two.

That the testimony Petitioner was compelled to give in 1967 to the County Solicitor of Brevard County fell in immune category was resolved by the Fourth District Court’s decision in State ex rel. Lurie v. Rozier, supra. Immunity extended by the State under

Section 932.29, F.S., F.S.A., 1967 in surrender of the Fifth Amendment privilege is not divisible so that the protection vouchsafed thereunder is only from criminal prosecution. This result can be ascertained from a cursory reading of

Section 932.29, F.S., F.S.A., 1967: “No person shall be excused from attending and testifying . . . before any court upon any investigation, proceeding or trial . . . but no person shall be prosecuted or subjected to any penalty or forfeiture for or on account of any transaction, matter or thing concerning which he may so testify or produce evidence, documentary or otherwise, and no testimony so given or produced shall be received against him upon any criminal investigation or proceeding." (Emphasis supplied.) As Justice Terrell stated in Seymour, supra, 62 So.2d, at 3: “Whether the prosecution, penalty or forfeiture has to do with a civil or criminal action is not material.

The statute [932.29, F.S.] makes it applicable to both.” Such an

interpretation is not a strained construction of the Legislature’s enactment, but rather one which comports realistically and honestly with the professed immunity grant. The State through its authorized officials in granting immunity to a witness acts totally for the State, including its licensing agencies. A professional state licensing board must respect the immunity granted similarly as must the prosecuting attorney. To be efficacious in securing testimony of a citizen the immunity extended must be coextensive with all possible governmental penalties and forfeitures, criminal or civil.

Persons holding professional licenses cannot be excepted from total immunity protection. Our recent holding in State ex rel. Vining v. Florida, supra, supports the principle that immunity from the imposition of penalties extends to administrative proceedings. In that case a real estate broker was charged with several violations of the Real Estate License Law. He moved to quash the information alleging, inter alia, that the requirement of filing a sworn answer pursuant to

Section 475.30(1) violated his right to remain silent guaranteed to him by the Fifth Amendment of the United States Constitution arid

Article I,

Section 9 of the Florida Constitution, F.S.A. In relying upon Spevak v. Klein, 385 U.S. 511, 87 S. Ct. 625, 17 L.Ed.2d 574 (1967), we stated that the U. S. Supreme Court’s logic of making available the constitutional privilege against self-incrimination to a lawyer in a disbarment proceeding “. . . [extends] as well to other types of administrative proceedings which may result in deprivation of livelihood. Certainly, threatened loss of professional standing through revocation of his real estate license is- as serious and compelling to the realtor as disbarment is to the attorney.

In succinct terms, it is our view that the right to remain silent applies not only to the traditional criminal case, but also to proceedings ‘penal’ in nature in that they tend to degrade the individual’s professional standing, professional reputation or livelihood.” The immunity extended by the State under

Section 932.29, F.S., F.S.A., serves as a partial, in lieu replacement for the protection that otherwise would have been available to Petitioner Lurie under the Fifth Amendment, and while “It is true that the statement of the privilege in the Fifth Amendment, which is applicable to the States by reason of the Fourteenth Amendment, is that no person ‘shall be compelled in any criminal case to be a witness against himself’ . it is also clear that the availability of the privilege does not turn upon the type of proceeding in which its protection is involved, but upon the nature of the statement or admission and the exposure which it invites.

The privilege may, for example, be claimed in a civil or administrative proceeding, if the statement is or may be inculpatory.” In re Gault, 387 U.S. 1 at 49, 87 S.Ct. 1428 at 1455, 18 L.Ed.2d 527 at 558 (1967). Fifth Amendment freedoms are never lightly surrendered. Consequently, the state on its part should not be technically “sharp” or narrow in honoring its immunity commitment. When it professes to extend total immunity by statute its judiciary should not circumscribe or hedge or renege in

part its solemn promise with exceptions permitting imposition of certain penalties and forfeitures in administrative proceedings. To do so would not only debilitate the effectiveness of the immunity grant; it would also invariably serve to engender distrust for a state officer’s promise. Fundamental fairness dictates an open, and aboveboard agreement between both' parties, the state and the witness. No hypocrisy or pretense can be indulged in by the state to break so solemn a pledge when a witness is compelled by law to testify.

There are those who would hyperbolically parade the horribles of felons disguised as physicians or lawyers preying on unsuspecting patients or clients under a cloak of governmental immunity. Such feared abuses and evils ordinarily never transpire because prosecuting officers exercise rea- sonable discrimination in granting statutory immunity. A certain degree of confidence must be placed in state attorneys and other officials by assuming they will not recklessly grant immunity to the extent of opening floodgates for great numbers of the unscrupulous to professionally victimize the public.

It is to be assumed that such officials will act so as to use this bargaining tool to the state’s greatest advantage without appreciable victimization of the public. Were we to judicially narrow the scope of immunity, we would emasculate that advantage at a far greater expense to the citizenry than would otherwise occur — and in the process raise serious doubts as to the state’s good faith. Conflict of decisions invoking our jurisdiction herein arose because the Fourth District gave a retroactive application to the holding in Headley v.

Baron (decided in 1969), supra, to the question whether Petitioner was rendered immune to a forfeiture of his dental license at the time he was compelled to testify in 1967, contrary to the rationale of Florida Forest and Park Service v. Strickland, supra. We conclude that Petitioner had a sufficient property right in his dental license as state-agreed in § 932.29 and explicated in Seymour to receive the protection of the rule of the Strickland case. However, we rest our decision here not on retroactivity, but on reinstatement of the holding in Seymour.

We acknowledge that the Florida State Board of Dentistry and the Fourth District Court of Appeal should not be held accountable for error because they took the Headley case at face value. This Court freely acknowledges that its erroneous decision in that case generated the related action below. We direct that the order revoking Petitioner’s dental license be quashed, but that the one-year suspension for malpractice stand. It is so ordered. BOYD, McCAIN and DEKLE, JJ., concur. DREW, J. (Retired), dissents with Opinion. ROBERTS, Acting C. J., and ADKINS, J., dissent. .

Petitioner — in his original brief — says “The Headley decision indicated that immunity granted from criminal prosecution covered only investigations, proceedings or trials . . . The Court indicated that administrative disciplinary proceedings were not a penalty or forfeiture, nor an investigation, proceeding or trial within the meaning of t.he immunity statute

Chapter 935 F.S., F.S, &., and were, therefore, outside the purview of any immunity from criminal prosecution previously granted.” He further states with reference to the above quotation “This is the law in the State of Florida at this time and Petitioner does not dispute this fact.” (Emphasis added)