ORDERS:
ORDER
REVERSED
STATEMENT
OF THE CASE
The
above-captioned matter is before the South Carolina Administrative Law Court
(“ALC” or “Court”) pursuant to S.C. Code Ann. §§ 40- 1-160, 40-15-200 and
1-23-600(D) (Supp. 2006) for an administrative appeal. In this appeal, Spencer
B. Wagner, D.M.D., (“Appellant”) challenges the South Carolina Department of
Labor, Licensing and Regulation, South Carolina State Board of Dentistry’s (“Board”)
Final Order dated July 28, 2006. In its Final Order, the Board found that
Appellant violated S.C. Code Ann. § 40-15-190(A)(15) (Supp. 2005) and 23A S.C.
Code Ann. Regs. 39-11, Principle 4, and imposed sanctions against Appellant’s
license. After timely notice to the parties, oral arguments on this appeal
were heard before me at the Court in Columbia, South Carolina.
Based
upon the Record on Appeal, the parties’ briefs and oral arguments, and upon the
applicable law, I find that Respondent’s decision in this matter must be
reversed.
PROCEDURAL
HISTORY
Appellant
is a general dentist licensed by the Board to practice dentistry in South
Carolina. Appellant maintains two dentistry practices. His primary practice,
“Spencer B. Wagner, DMD, PC,” is located in Fairfax, South Carolina, and his
second practice, “Coastal Orthodontics,” is located in Beaufort, South Carolina.
Appellant
advertised “Coastal Orthodontics” and the availability of orthodontic services
at that practice through advertisements in newspapers and the Yellow Pages. In
one advertisement, Appellant included a statement that he is a general dentist;
however, that statement appears in small type at the bottom of the ad while the
name “Coastal Orthodontics” appears in larger type at the top of the ad. Appellant
is not licensed as a specialist in orthodontics in South Carolina.
On
June 18, 2004, the Board issued a Formal Accusation against Appellant that alleged
he engaged in misconduct by publishing misleading advertisements. A panel
hearing was held on December 10, 2005. After the hearing, the panel issued a
report in which it found that Appellant had violated various provisions of the
Dental Practice Act, S.C. Code Ann. § 40-15-10 et seq., and
recommended that Appellant be sanctioned. A Final Order hearing was then held
before the Board on July 21, 2006. The Board adopted the Panel Report and issued
its Final Order on July 28, 2006. In its Final Order, the Board found that
Appellant violated § 40-15-190(A)(15) and 23A S.C. Code Ann. Regs. 39-11,
Principle 4. As a result, the Board suspended Appellant’s license for one
year, which suspension would be stayed and Appellant’s license reinstated in a
probationary status for one year upon compliance with certain terms and
conditions which included: (1) payment of a $3,000.00 fine within 30 days of
the Final Order; (2) advance submission of all advertising related to the
practice of dentistry for Board review prior to publication during the one year
probationary period; and, (3) periodic review by the Board of Appellant’s
dental records at Appellant’s expense. Appellant was further ordered to appear
and report to the Board as requested. Appellant filed a notice of appeal with
the Court on September 6, 2006 to challenge the Board’s Final Order.
JURISDICTION
AND STANDARD OF REVIEW
Jurisdiction
on this appeal is vested in the ALC pursuant to S.C. Code Ann. §§ 1-23-600,
40-1-160 and 40-15-200. The provisions of the South Carolina Administrative
Procedures Act (“APA”) govern an appeal from a Final Order of the Board. Byerly
Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225,
229, 460 S.E.2d 383, 385 (1995).
A
final decision of the Board may be reversed or modified if substantial rights
of the appellant have been prejudiced because the administrative findings or
decision are clearly erroneous in view of the reliable, probative and substantial
evidence on the whole record, are arbitrary or capricious, are in violation of
constitutional or statutory provisions, are made upon unlawful procedure, or
are affected by other error of law. S.C. Code Ann. § 1-23-380(A)(6). Furthermore,
a finding of fact by the Board will not be overturned by this Court “unless
there is no reasonable probability that the facts could be as related by a
witness upon whose testimony the finding was based.” Lark v. Bi-Lo, 276
S.C. 130, 137, 276 S.E.2d 304 (1981).
“Substantial
evidence” is that evidence which, in considering the record as a whole, would
allow reasonable minds to reach the conclusion that the administrative agency
reached. Jennings v. Chambers Dev. Co., 335 S.C. 249, 516 S.E.2d 453
(1999). It is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Midlands Utility, Inc. v. S.C. Dep’t of
Health and Envtl. Control, 298 S.C. 66, 69, 378 S.E.2d 256, 258 (1989).
The possibility of drawing two inconsistent conclusions from the evidence will
not mean the agency’s conclusion was unsupported by substantial evidence. Palmetto
Alliance, Inc. v. S. C. Public Service Comm’n, 282 S.C. 430, 432, 319
S.E.2d 695, 696 (1984).
Where
there is a conflict in the evidence, the agency’s findings of fact are
conclusive. Id.; see Harbin v. Owens-Corning Fiberglas,
316 S.C. 423, 450 S.E.2d 112 (Ct. App. 1994). This Court cannot substitute its
judgment for that of the Board upon a question as to which there is room for a
difference of intelligent opinion. Chemical Leamen Tank Lines v. S.C. Pub.
Serv. Comm’n, 258 S.C. 518, 189 S.E.2d 296 (1972). The Board has the
benefit of seeing and hearing the testimony of the witnesses and judging their
credibility and demeanor. The factual findings of an administrative agency
[the Board] are presumed to be correct and will be set aside only if
unsupported by substantial evidence. Kearse v. State Health and Human Fin.
Comm’n, 318 S.C. 198, 456 S.E.2d 892 (1995). Applying the “substantial
evidence rule,” an appellate court may not substitute its judgment for that of
the agency as to the weight of the evidence on questions of fact. S.C. Code
Ann. § 1-23-380 (A)(6) (Supp. 2003); Toussaint v. State Bd. of Med. Exam’rs,
303 S.C. 316, 400 S.E.2d 488 (1991).
An
abuse of discretion occurs when an administrative agency’s ruling is based upon
an error of law, such as application of the wrong legal principle; or, when
based upon factual conclusions, the ruling is without evidentiary support; or,
when the trial court is vested with discretion, but the ruling reveals no
discretion was exercised; or, when the ruling does not fall within the range of
permissible decisions applicable in a particular case, such that it may be
deemed arbitrary and capricious. State v. Allen, 370
S.C. 88, 94, 634 S.E.2d 653, 656 (2006) (application of standard to circuit
court) (citing Fontaine v. Peitz, 291 S.C. 536, 539, 354 S.E.2d 565, 566
(1987); see also Converse
Power Corp, 350 S.C. 39, 47 564 S.E.2d 341, 345 (Ct. App. 2002) (quoting Deese
v. State Bd. of Dentistry, 286 S.C. 182, 184-85, 332 S.E.2d 539, 541 (Ct.
App. 1985) (“A decision is arbitrary if it is without a rational basis, is
based alone on one's will and not upon any course of reasoning and exercise of
judgment, is made at pleasure, without adequate determining principles, or is
governed by no fixed rules or standards.”).
DISCUSSION
Appellant
raises several grounds on appeal of the Board’s final decision: (1) the Board’s
application of 23A S.C. Code Ann. Regs. 39-11, Principle 4 violates Appellant’s
constitutional rights because it “amounts to an outright ban on the use of the
term orthodontics by a general dentist”; (2) the Board improperly admitted and
relied upon a biased expert witness; and, (3) the sanctions imposed on
Appellant by the Board are arbitrary and capricious as the sanctions serve no
relation to the alleged conduct committed by Appellant.
In
its Final Order, the Board found that Appellant violated § 40-15-190(A)(9) and Regs.
39-11, Principle 4, in that he “announced his services as a general dentist in
a manner that implies specialization and is false or misleading in a material
respect, as evidenced by his prominent use of ‘Orthodontics’ in his practice
name and advertising thus implying that he is a licensed orthodontist.”
S.C. Code Ann. §
40-15-190(A)(9) provides that:
Misconduct which
constitutes grounds for revocation, suspension, probation, reprimand, or other
restriction of a license or certificate or a limitation or other discipline of
a dentist, dental hygienist, or dental technician occurs when the holder of a
license or certificate: . . . (9)has violated the principles of ethics in the
practice of dentistry as promulgated in the regulations of the State Board of
Dentistry[.]
Further, Reg.
39-11, Principle 4(D) provides that:
General dentists who
wish to announce the services available in their practices are permitted to
announce the availability of those services so long as they avoid any
communications that express or imply specialization. General dentists shall
also state that the services are being provided by general dentists. No
dentist shall announce available services in any way that would be false or
misleading in any material respect. The phrase “practice limited to” shall be avoided.
South
Carolina permits general dentists to perform all dental services and
procedures, including orthodontics, without licensure as a specialist. However,
in order for a dentist to hold himself out to the public as limiting his
practice to, being a specialist in, or giving special attention to any special
area of dentistry, licensure as a specialist is required. S.C. Code Ann. § 40-15-220
(Supp. 2005). Nonetheless, general dentists are not prohibited from limiting
their practices to any particular area of dentistry, including specialty
procedures, as the volume of business in a limited area of dentistry or a
general dentist’s restriction of his practice to one or more limited areas of
dentistry does not in itself constitute a holding out to the public that the
dentist is a specialist. Id. Licensed specialists, however, who announce
specialization to the public must limit their practice to the published
specialty. S.C. Code Ann. Reg. 39-11(4)(C).
Appellant
argues that the Board’s application of Regulation 39-11 amounts to an outright
ban on the use of the term “orthodontics” by a general dentist, and as such, it
violates Appellant’s constitutional right to free commercial speech. Commercial speech is speech that involves an “expression
related solely to the economic interests of the speaker and its audience.” Cent.
Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n of N.Y., 447 U.S. 557,
561, 100 S.Ct. 2343, 2349 (1980). Commercial speech is protected from
unwarranted governmental regulation by the First Amendment, as applied to the
State through the Fourteenth Amendment. Id. However, commercial speech
is entitled to less protection under the First Amendment than other
constitutionally protected expression. Id. at 562 -563, 2350.
In this case, the commercial speech in
question is the advertisement of orthodontic services by a general dentist licensed
in South Carolina. The Board found that Appellant’s advertisement, by
including the word “Orthodontics” in his practice name, was misleading by
implying that he is a licensed orthodontist. In response, Appellant maintains
that his advertisements are truthful and that there is nothing in the
regulations or the South Carolina Dental Practice Act, § 40-15-10 et seq.,
which would lawfully prohibit him from using the term “orthodontics” within an
advertisement that announces the services that are provided by his office. The
facts of this case are virtually identical to the facts of Parker v. Commonwealth of Kentucky,
Board of Dentistry, 818 F.2d 504 (1987), in which the Sixth Circuit United
States Court of Appeals dealt with the issue of whether a general dentist’s use
of the term “orthodontics” in advertisements was afforded protection as
commercial speech under the First Amendment. In that case, Dr. Parker was a
licensed general dentist in the State of Kentucky and under the law in
Kentucky, Dr. Parker could practice orthodontics while licensed as a general dentist
provided he did not hold himself out to the public as a specialist in the field
of orthodontics. Dr. Parker placed an advertisement in the Yellow Pages under
the heading, “Dentists.” The ad was headed by the phrase “COMPLETE DENTAL
CARE” and then listed a variety of services offered by Dr. Parker, including
orthodontics. Based upon the advertisement, the Kentucky Board of Dentistry
instituted disciplinary proceedings against Dr. Parker for holding himself out
to the public as a specialist in the field of orthodontics. Specifically, the Board found that the use of the words “orthodontics,”
“braces,” and “brackets” in the advertisement were misleading in that they
implied specialization in orthodontia.
In
reviewing the dental board regulations at issue in Parker, the Court of
Appeals found that the regulation which prohibited general dentists from
“inserting the name of a specialty” into an advertisement was unconstitutional
under the First and Fourteenth Amendments. The Court of Appeals also found
that other regulations at issue which prohibited Dr. Parker from using words or
“phrases customarily used by qualified specialists” were unconstitutional as
applied to Dr. Parker because they prevented him from using terms to describe
his practice which were not misleading or deceptive, i.e. the term “orthodontics.”
Specifically, the Court of Appeals in Parker found that the use of
particular terms in the orthodontic field are not inherently misleading:
It is argued that
such words as ‘orthodontics,’ ‘brackets,’ and ‘braces’ are either inherently or
potentially misleading in that the general public will believe that such a
dentist is a ‘specialist’ in the area of orthodontics. We cannot agree that
such terms are inherently misleading. Such terms are not false, but actually
describe procedures which a general practicing dentist is permitted to perform
under state law. If a state permits a dentist to perform orthodontic services,
we do not believe a state can justify an outright ban on the use of particular
terms relating to orthodontics on the theory that such terms inherently mislead
the public.
Parker,
818 F.2d at 510.
While
the regulation at issue in Parker completely banned the use of the word
“orthodontics” in advertisements by general dentists not licensed as
orthodontists, the Board’s application of 39-11 to Appellant in the instant
matter reaches a similar result. The Board found that his use of the word
“orthodontics” was misleading and required specialization in the field of
orthodontics. I disagree. Regulation 39-11, Principle 4 only requires general
dentists to refrain from using the phrase “practice limited to.” It does not
prohibit Appellant from using terms associated with any areas of specialization
within the field of dentistry. This is especially true as Appellant, a
licensed general dentist, is permitted by the Board to perform and provide
services within any area of specialization in dentistry.
Counsel
for the Board also argues that Appellant’s advertisement of his dental practice
in Beaufort “places[s] an overabundance upon his practice of orthodontics
versus his being a general practitioner” and that the word “orthodontics” is in
much larger font when compared to the remaining information in Appellant’s
advertisement. This argument must fail for two reasons. Regulation 39-11,
Principle 4 contains no reference or guidelines as to the number of times a
particular area of specialization may be referenced within the general
dentist’s advertisement. Regulation 39, Principle 4 simply mandates that
general dentists “state that the [specialization] services are being provided
by general dentists” and that a general dentist “avoid any communications that
express or imply specialization.” Like the situation in Parker, I find
that the terms used by Appellant in his advertisement are descriptive of the
services and procedures he offers in his dental practice and do not express or
imply specialization. Id. (“[A] term such as ‘orthodontics’ is not in
and of itself deceptive; rather, it conveys information regarding dental
procedures which either a general practicing dentist or a dentist specializing
in orthodontia may perform.”) Id. And while counsel for the Board
argues that the size font of the word “orthodontics” in his advertisement is
misleading, there are no guidelines in Regulation 39-11, Principle 4 which specifies
or places any limitation upon the size typeset to be used within general
dentists’ advertisements.
In
fact, the United States Supreme Court addressed a similar issue concerning an
advertisement run by an attorney that contained a listing in large capital
letters that he was admitted to practice before “THE UNITED STATES SUPREME
COURT.” In re R.M.J., 455 U.S. 191, 197, 102 S.Ct. 929, 934 (1982). Although
the Supreme Court found the listing to be in bad taste and that it could be
misleading to the general public unfamiliar with the requirements for admission
to the bar of the Supreme Court, it declined to find it misleading as there was
nothing in the Record from the court below to indicate that it was misleading.
Furthermore, the Supreme Court stated that “[s]tates may not place an absolute
prohibition on certain types of potentially misleading information, e.g., a
listing of areas of practice, if the information also may be presented in a way
that is not deceptive. . . . [as the Supreme Court in] Bates suggested
that the remedy in the first instance in not necessarily a prohibition, but
preferably a requirement of disclaimers or explanation.” Id. at 203; Bates
v. State Bar of Arizona, 433 U.S. 350, 97 S.Ct. 2691 (1977) (stating that
in the context of advertisements of legal services by lawyers, a disclaimer
might be required to ensure that consumers are not misled). Similarly, the
Court of Appeals in Parker suggested that a disclaimer that the services
were being performed by a licensed general dentist would address the state’s
concern that the public would be misled into thinking that the orthodontic
services offered were being offered by a licensed orthodontist. In this
matter, there is sufficient evidence in the Record to demonstrate that the
listing of Appellant’s dental practice in Beaufort complies with the
requirements set forth in Regulation 39-11, Principle 4 as Appellant did insert
a disclaimer in some of the advertisements: “Dr. Wagner is a general dentist
who has been practicing Orthodontics & Disorders of the TMJ for over 10
years.” Further, he listed the ads in the yellow pages under the heading of
“Dentists” as opposed to “Orthodontists.” Even if Appellant’s use of larger
typset within the advertisement may have been misleading to the general public,
Appellant’s disclaimer presented such information in a non-deceptive and
informative fashion. Furthermore, Appellant listed other dental services – in
addition to any orthodontic services – offered by him to be performed at the
Beaufort location.
Essentially,
in Parker and RMJ, the Court held that the States can’t place an
absolute prohibition on certain types of potentially misleading information,
such as the listing of practice areas, if the information can be presented in a
way that is not deceptive. Here, the information is listed in a way that is not
deceptive, by listing other areas of practice than orthodontics. Moreover,
Appellant has complied with every requirement mandated within Regulation 39-11,
Principle 4-D: 1) he did not use the phrase “practice limited to” within has
advertisements; 2) he included a disclaimer within his advertisements to limit
any misconceptions the public may have regarding such advertisements; and, 3)
Appellant listed other areas of dental practice within his advertisements.
While other professionals within the dental field may disagree with Appellant’s
choice of wording within his advertisements, there is nothing contained within
Appellant’s advertisements that would violate Regulation 39-11, Principle 4. Because
Appellant may lawfully practice in the field of orthodontia, the Board cannot subsequently
prohibit Appellant from using such terminology within his advertisements. As
such, I find that the Board’s determination must be reversed as there is insufficient
evidence in the Record to support the Board’s determination in this matter.
As
a result of this Court’s conclusion, it is not necessary to determine any
remaining issues raised by the parties. Futch v.
McAllister Towing of Georgetown, Inc., 335
S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (appellate court need not address
remaining issues when determination of prior issue is dispositive).
ORDER
For
all the foregoing reasons,
IT
IS HEREBY ORDERED that the Board’s Order dated July 28, 2006 is REVERSED.
AND
IT IS SO ORDERED.
__________________________________
Marvin
F. Kittrell
Chief
Administrative Law Judge
January 7, 2008
Columbia, South Carolina
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