
    Gerry BECKERMAN d/b/a Suncoast Tattoo Studio, Inc., Florida corporation, Appellant, v. CITY OF FORT LAUDERDALE, a municipal corporation, and Myles Taylor d/b/a Taylor’s Tattooing, Inc., a Florida corporation, Appellee.
    No. 82-501.
    District Court of Appeal of Florida, Fourth District.
    Nov. 10, 1982.
    Rehearing Denied Jan. 5, 1983.
    
      Bob Zwicky of Fitzgerald, Taylor & Zwicky, Fort Lauderdale, for appellant.
    Donald R. Hall and T.J. Ansbro, Jr., Fort Lauderdale, for appellee, City.
   BERANEK, Judge.

The question presented in this case is exactly the same as in Piperato v. Zuelch, 395 So.2d 1231 (Fla. 3rd DCA 1981). Appellant suggests that the Third District Court of Appeal was in error in the Piperato decision and asks that we reach a contrary result. The statute in question provides as follows:

877.04 Tattooing prohibited; penalty.—
(1) It is unlawful for any person to tattoo the body of any human being; except that tattooing may be performed by a person licensed to practice medicine or dentistry under chapters 458 and 459 or chapter 466, or by a person under his direction.
(2) Any person who violates the provisions of this section shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

The issue is one of statutory construction. Specifically, we must decide whether the statute requires that a physician or dentist be in actual attendance during the tattooing operation. We conclude that the regulation of tattooing is a legislative matter and that the reasoning of the Piperato decision is sound. We thus affirm the trial court’s finding that the statute requires actual attendance or presence rather than mere inspection.

AFFIRMED.

HERSEY, J., concurs.

ANSTEAD, J., dissents with opinion.

ANSTEAD, Judge,

dissenting:

It is uncontradicted in this case that the appellant has, by written contract, transferred to a named licensed physician “full and complete control and supervision over the medical and sterile procedures to be followed” in appellant’s tattoo studio. Having done so I do not believe the appellant can be denied an occupational license on the grounds that he is doing business in violation of section 877.04’s prohibition of tattooing except by physicians or dentists or those acting under their direction. I believe this provision is ambiguous and that, since it is a penal statute the violation of which constitutes a misdemeanor, we are obligated to liberally construe the statute in favor of the appellant, the alleged violator of the statute. § 775.021, Fla.Stat. (1979); Jones v. State, 356 So.2d 4 (Fla. 4th DCA 1977). As the Florida Supreme Court has stated:

The statute requires that tattoo artists work subject to the direction of a licensed physician or dentist as defined by the act.

Golden v. McCarty, 337 So.2d 388, 391 (Fla.1976). As noted, it is undisputed here that the appellant, a tattoo artist, does work subject to the direction of a licensed physician. That physician has testified that, in addition to the directions and instructions he provides the appellant as to proper tattooing procedures, the physician also visits the studio some 42 times annually to ensure that proper tattooing procedures are being followed. The legislature has not mandated that all tattooing be done “in the presence of a physician” as the Third District and the majority have held. I think the legislature intended by the enactment of section 877.04 to require that a physician be responsible for the procedures utilized by tattoo artists. In this case it is undisputed that a physician is responsible.

There are many procedures that are carried out under the direction of physicians that do not require the physical presence of the physician. Indeed, most medical personnel act under the direction of physicians in almost all of the procedures they perform on people. I do not believe we should construe section 877.04 to require the physical presence of a physician without an express indication from the legislature that such was intended. For example, section 463.-002(5), Florida Statutes (1979) does specifically require the presence of an optometrist when certain optometry functions are performed by support personnel. Section 877.-04 contains no such mandate. Indeed, the legislature has authorized the practice of accupuncture without statutorily requiring any supervision by physicians. See Chapter 389, Fla.Stat. (1981).

In addition, if the legislature had intended to completely prohibit tattooing except for bona fide medical reasons, as the Florida Supreme Court pointed out in Golden is the case in New York, such prohibition could easily have been accomplished by the use of the same clear language utilized by the New York legislature discussed in Golden.  