Painless Parker v. Board of Dental Exam.

14 P.2d 67, 216 Cal. 285, 1932 Cal. LEXIS 566

• Court: California Supreme Court
• Decided: September 1, 1932
• Docket: Docket No. S.F. 14394.
• Status: Published

Opinions

SEAWELL, J.

This appeal is taken from a judgment entered by the Superior Court of the City and County of San Francisco in a certiorari proceeding wherein said superior court affirmed the order or judgment rendered by the Board of Dental Examiners of this state on December 7, 1929, upon original proceedings taken and had by said Board of Dental Examiners, suspending the license of said petitioner, Painless Parker, theretofore issued to him by said board, for a period of five years, commencing January 2, 1930. The matter is before us on an order transferring the cause to this court after decision by the District Court of Appeal, reversing the judgment of said superior court. The provisions of the act regulating the practice of dentistry (Leering’s Gen. Laws of California, 1931, title 157, Act No. 2048) which bear upon the questions presented are found in section 11 of said act, and are as follows:

“Any person shall be understood to be practicing dentistry within the meaning of this act who shall (1) by card, circular, pamphlet, newspaper, or in any other way advertise himself as a dentist, or (2) who shall, for a fee, salary or reward, paid directly or indirectly either to himself or to some other person, perform an operation of any kind, or treat diseases or lesions of the human teeth or jaws, or correct malimposed positions thereof, or (3) in any way indicate that he will perform by himself or his agents or servants any operations upon the human teeth or jaws, or (4) make an examination of, with the intent to perform or cause to be performed any operation on the human teeth or jaws, or (5) who manages or conducts as manager, proprietor, conductor, lessor, or otherwise a place where dental operations are performed; but nothing in this act contained shall prohibit bona fide students of dentistry or dental hygienists from operating in the clinical departments of the laboratory of a reputable dental college, or an unlicensed person from performing merely mechanical work upon inert matter in a dental laboratory or a licensed physican from practicing oral surgery.”

One of the penalties prescribed for the commission of the acts charged against the petitioner and appellant herein is the revocation or suspension of his license to practice dentistry in this state. Section 12 enumerates certain violations of the act which are punishable as misdemeanors, and certain other violations which are punishable either as misdemeanors or as felonies. It provides as follows:

“Any person who . . . shall under any false, assumed or fictitious name, either as an individual, firm, corporation or otherwise or any name other than the name under which he is licensed, practice, advertise or in any other manner indicate that he is practicing or will practice dentistry, shall for the first offense be guilty of a misdemeanor, and shall be punishable by a fine of not less than two hundred fifty dollars or more than one thousand five hundred dollars, or by imprisonment in the county jail for not to exceed six months, or both, and for the second or a subsequent offense shall be guilty of a felony and upon conviction thereof shall be punished by a fine of not less than one thousand dollars nor more than three thousand dollars, or by imprisonment in the state prison for a term of not less than one year nor more than three years, or by both such fine and imprisonment. Nothing in this section shall be held to prohibit the conferring of degrees and the bestowing of diplomas by reputable dental colleges of this state which have been approved by the board of dental examiners of California.”

Section 13 enumerates several grounds, any one of which is deemed sufficient cause for the revocation or suspension of a dentist’s license. In the list the following appear: The rendition of a judgment by a court of competent jurisdiction finding him grossly unskilful or negligent in his practice; unprofessional conduct or gross ignorance or inefficiency in his profession. Unprofessional conduct is defined to consist of the employment of cappers or steerers to obtain business; aiding or abetting any unlicensed person to practice dentistry unlawfully; “the use of any false, assumed or fictitious name, either as an individual, firm, corporation or otherwise, or any practice, advertise or in any other manner indicate that he is practicing or will practice dentistry.”

Section 15 of said act provides that the Board of Dental Examiners, or any member thereof, may prefer a complaint “for violation of this act or any part thereof”, and concludes with making it the duty of the district attorney to prosecute all violations of said act.

The accusation charges petitioner with unprofessional conduct in four counts. The first count charges that between August 4, 1915, and May 31, 1929, petitioner, Painless Parker, aided and abetted an unlicensed person to practice dentistry unlawfully. The gist of this accusation is that on August 4, 1915, petitioner caused to be formed and organized a corporation under the name of Painless Parker Dentist, for the purpose and with the object that said corporation should conduct, own, operate and control dental offices throughout this state, the United States of America and the Dominion of Canada, and thereafter, pursuant to said purpose and object, petitioner, Painless Parker, did aid and abet said corporation, Painless Parker Dentist, an unlicensed person, to practice dentistry in this state and to conduct, own, operate and control dental offices throughout the state of California, where dental operations were performed and the practice of dentistry was carried on.

Count two charges that continuously between September 20, 1921, and January 22, 1929, said petitioner, Painless Parker, through the agency of said corporation, aided and abetted Ramona McShane, an unlicensed person, to participate in the profits of the dental offices so unlawfully operated, conducted and controlled by said Painless Parker Dentist, corporation.

Count three charges that between the dates set forth in count two petitioner, Painless Parker, did wilfully and unlawfully use a false, assumed and fictitious name, to wit, Painless Parker Dentist, a corporation, in conducting and engaging in the practice of dentistry in the state of California, and during said period he did advertise and indicate that he was practicing dentistry under said false, assumed and fictitious name.

Count four alleges that between September 21, 1921, and October 10, 1928, said Painless Parker did wilfully and unlawfully carry on and conduct the practice of dentistry in this state under a false, assumed and fictitious name, to wit, E. R. Parker system, which name was a name other than the name under which said Painless Parker was and is licensed to practice dentistry, and he did advertise and indicate that he was practicing dentistry under said false and fictitious name.

The Board of Dental Examiners found against petitioner on each one of said counts.

It may be taken as conceded that the original or given name of petitioner was Edgar R. and that said original or given name was discarded and “Painless” was, under form of law, adopted in its stead as his first or given name. Prior thereto he had practiced dentistry under his original name, Edgar R. Parker, and his dental license was issued to him in that name. After he had changed his name to Painless Parker he again reverted to the use of his abandoned name, E. R. Parker, and coupled it with a painless technique of dental operations and advertised that examination and advice were obtainable at the dental offices of the E. R. Parker System.

On August 4, 1915, petitioner caused to be formed a corporation named “Painless Parker Dentist” for the purposes, among a long list of others, of conducting, owning, operating and controlling dental offices throughout the state of Cali fornia, the United States of America and the Dominion of Canada. The other enumerated purposes, in addition to those already named, for which said corporation was formed, are many, including the manufacture, purchase and sale of all kinds of dental creams and pastes; dental supplies of all and every kind; mechanical goods and apparatus; artificial teeth and crowns; anesthetics; the purchase and sale of gold necessary for use in the practice of dentistry; the manufacture, importation and exportation of dental articles of all kinds; buying, selling and dealing in and with all things, solids and liquids, necessary in the practice of dentistry; purchasing, owning, selling, leasing and dealing in real property of every description, and buying, selling, owning, leasing and dealing in personal property of all kinds; purchasing, owning, selling and dealing in shares of stock, bonds and obligations of private and public corporations; buying, dealing in and selling merchandise of all kinds; employing, engaging and hiring any and all necessary persons in the proper performance of dental offices, in which mechanical and operative dentistry shall be carried on where such persons are needed, and finally for the purpose of carrying on and transacting any and all kinds of businesses in which natural persons may lawfully engage.

The amount of the capital stock of said corporation was fixed at $5,000, divided into 500 shares of the part value of $10 per share. The number of shares of stock actually subscribed was three, one, respectively, by E. R Parker, B. T. Mohney and Harry Morgan, who were appointed directors.

On August 27, 1915, the Associated Dental Supply Company was incorporated by Frances E. Parker, wife of Painless Parker, and Chalmers S. Baird and Frank D. French, each of whom subscribed to one share of its capital stock of the par value of $100 per share. The amount of the capital stock was fixed at $100,000. The three persons above named constituted the board of directors. The purposes for which said corporation was formed included all of those purposes set forth in the Painless Parker Dentist articles of incorporation and others not named in said articles of incorporation, and to which may be added the purposes of engaging in printing, publishing, bookbinding, advertising, publicity work, chartering, constructing, owning, leasing and operating steam and other craft and vessels; owning, leasing and holding property for mining purposes; to acquire by purchase trademarks, trade names and the goodwill of any business whatever; to make and enter into contracts of every kind and character with firms, associations and corporations, municipalities, bodies politic, including the government of the United States of America and of any state or territory.

The purposes for which the corporations Painless Parker Dentist and Associated Dental Supply Company, respectively, are formed and the powers which they assume to exercise are both multifarious and heterogeneous. While many of the purposes set out in the articles of incorporation have a connection with some of the various forms and kindred branches of dentistry, others have no relevancy whatsoever to the subject.

Said corporations, associations or entities which Painless Parker claims as his legitimate offspring begotten of rights conferred upon him by his license to practice dentistry are: Painless Parker Dentist, in his individual capacity; Painless Parker Dentist, in his corporate capacity; Associated Dental Supply Company, a California corporation; Parker Dental System Company, a Delaware corporation; the E. R. Parker Dental System Employees’ Cooperative Plan. Several of the associates of petitioner and employees of the corporation and its subsidiaries were called as witnesses by respondents for the purpose of explaining the functions of said corporations and allied bodies, but nothing was adduced to explain the rationale of the system, if it can be so called. Certainly the many appendages attached to the corporate bodies are not conducive to the conduct of the practice of dentistry in a lawful manner, but, on the contrary, they provide a means of circumventing the spirit and the letter of the law regulating the practice of dentistry. Examined strictly from a business viewpoint they seem unnecessary and in many instances are overlapping and conglomerate. Corporation Painless Parker Dentist was incorporated by Painless Parker, the individual dentist, in 1915. He, together with his assistant or employee, B. T. Mohney, a licensed dentist, and Harry A. Morgan, a layman, constituted the board of directors.

All of the witnesses who testified on material matters in the proceedings were either assistants of petitioner or employees of the corporations which he unquestionably dominated.

Mr. Frank W. French, president of the Associated Dental Supply Company, testified that said corporation was formed in 1915, and he had been connected with it for approximately fourteen years. Frances E. Parker, wife of Painless Parker, Chalmers E. Baird and Frank W. French were the directors. The latter had also been business manager of Painless Parker Dentist during the same period of time. None of the directors of Associated Dental Supply Company were licensed dentists. The working plan, as explained by the witness, between Painless Parker Dentist and Associated Dental Supply Company, the purposes of the incorporation of each being fully heretofore set out, was that Painless Parker, dentist, was general manager of Painless Parker Dentist, corporation, and the corporation leased its various offices conducted in several cities throughout the state, together with office equipment, from Associated Dental Supply Company, a California corporation. Painless Parker Dentist purchased all dental supplies used by it from Associated Dental Supply Company. All moneys collected by the several dental offices operated by Painless Parker Dentist were remitted to the Associated Dental Supply Company, which in turn paid all rentals, salaries of dentists and operative expenses of Painless Parker Dentist. Whatever surplus remained was the property of Associated Dental Supply Company, a corporation, or the Parker Dental System Company, a Delaware corporation. The latter was incorporated some years after the former, and while both were granted substantially the same corporate powers, both continued to exist. Managers of the several dental offices seemed to have exercised their pleasure as to which they should forward their earnings. Moneys earned by Painless Parker Dentist from the actual practice of dentistry were deposited in bank to the order of one or the other of said corporations. Painless Parker received an annual salary of $20,000 for his services, Painless Parker Dentist paying $15,000 of said sum and Associated Dental Supply Company paying' the remaining $5,000. His office was denominated chief surgeon and general manager for Painless Parker Dentist. Frances E. Parker- is a controlling stockholder of the Associated Dental Supply Company, and her husband, Painless Parker, is a director of Parker Dental System Company. He makes irregular visits to the several dental offices. He holds the authority of general manager, but the employment of the help is delegated by him to an agent. The dentists in charge of the several dental offices are given wide administrative powers but are subject to the orders of petitioner. The Oakland office, in charge of Dr. Saul Robert Jacobs, employs sixteen or eighteen persons of whom five are licensed dentists. Dr. Jacobs has been working in the employ of the Painless Parker Dentist since 1918. He is a director and vice-president of the Parker Dental System Company. All moneys earned by Painless Parker Dentist in the practice of dentistry are remitted to the Associated Dental Supply Company and the sum to meet the expenses of conducting the office is returned. He, with A. W. Gage and B. T. Mohney, all licensed dentists, were trustees of a trust project known as “The Million Dollar Profit Sharing Plan”, entered into by and between Associated Dental Supply Company, a corporation, Painless Parker Dentist, a corporation, and Painless Parker, guarantors, whereby the guarantors guaranteed trustee certificates and trustee participating certificates issued ■ under and by the E. R. Parker Dental System Employees Cooperative Plan. Subscriptions were open to the public at $50 per certificate. The fund raised upon the issue—as explained by Mr. French—was for the benefit of the capital stock of the Associated Dental Supply Company and the certificate method was adopted to avoid the necessity of sales of stock of said association. The trust was ultimately dissolved. The subscribers of certificates shared in the net earnings of the venture rather than receiving fixed rates of interest on their loans. The E. R. Parker System also served as an advertising bureau for Painless Parker Dentist and other Parker organizations by circular and newspaper methods of publicity. It issued books and pamphlets treating of the introduction of economic methods as to the saving of time and money in the practice of dentistry; painless methods of treatment of teeth; instructions for dental cashiers, receptionists, dental mechanics and janitors. It purported to give general instructions in the operation and conduct of dental offices, and treated of special dental operations which are not taught in the curriculum of the ordinary colleges.

Considerable literature in the nature of letters written by the Parker organizations and in the form of advertisements, calling attention to the “painless technique in all of E. R. Parker dental operations”, is to be found in the record.

It will be seen from the above summary that the Parker organizations, of which Painless Parker is the director in chief, are interlinked in the multifarious dental projects herein mentioned.

That the regulation of the practice of dentistry comes as legitimately within the powers of the legislature as does the practice of medicine, or any other of the professions which require special scientific knowledge on the part of the practitioner, there can be no doubt. It must be conceded that the legislature has power to regulate the practice of dentistry not only on the ground that it concerns public health, but also on the ground that it is the state’s duty to enact laws which will afford protection to public morals. There is no profession, except the practice of medicine, where the patient passes so completely within the power and control of the operator as does the dental patient. Not infrequently does the operator perform his work upon the patient in the privacy of his office. The right to administer anesthetics which produce local or general insensibility to pain, or drugs which may produce total or semi-unconsciousness, or otherwise affect the nervous system, should be withheld not only from all persons who are not highly skilled in the knowledge of and the use of said drugs, but also from persons who cannot produce evidence of good moral character. Good moral character and “fitness” to practice dentistry are statutory requirements. Dentistry is referred to in the Dental Act (sec. 13, subd. 3) as a profession. The letter of the statute authorizes persons only to engage in the practice of dentistry. The underlying theory upon which the whole system of dental laws is framed is that the state’s licensee shall possess consciousness, learning, skill and good moral character, all of which arc individual' characteristics, and none of which is an attribute of an artificial entity. Surely the state, for the better regulation of the practice of dentistry, and as a means of preventing evasions of the law, and with the object of more readily fixing statutory responsibility, has the power to limit such practice to natural persons.

Appellant claims that there is a distinction between the practice of dentistry which the statute undertakes to regulate and the purely business side of the practice; that ' the first requires skill and learning, while the latter requires only training in business transactions, and if the management or conduct of the “business side” by a layman is inhibited by statute, then the inhibitions of the statute are beyond the scope of the police power of the state, and are void as being unconstitutional, citing State v. Brown, 37 Wash. 97 [107 Am. St. Rep. 798, 68 L. R. A. 889, 79 Pac. 635, 638]; Co. v. Baldridge, 278 U. S. 104, 113 [73 L. Ed. 204, 49 Sup. Ct. Rep. 57]; Messner v. Board of Dental Examiners, 87 Cal. App. 199 [262 Pac. 58]. If the statute should be so construed there would still remain other sustained accusations of unprofessional conduct of sufficient gravity to sustain the action of the Board of Dental Examiners. But we are not prepared to hold with the contention that a corporation or an unlicensed person may not be prevented from managing, conducting or controlling what petitioner terms the “business side” of the practice of dentistry. The law does not assume to divide the practice of dentistry into such departments. Either one may extend into the domain of the other in respects that would make such a division impractical if not impossible. The subject is treated as a whole. If the contention of appellant be sound, then the proprietor of the business may be guilty of gross misconduct in its management and violate all standards which a licensed dentist would be required to respect and stand immune from any regulatory supervision whatsoever. His employee, the licensed dentist, would also be immune from discipline upon the ground that he was but a mere employee and was not responsible for his employer's misconduct, whether the employer be a corporation or a natural person. On grounds of public policy such a condition could not be countenanced. The logical deduction from such a proposition would render the act impotent to accomplish the purpose it was intended to serve, and it would defeat the object of the legislation, which is well stated in Ex parte Whitley, 144 Cal. 167 [1 Ann. Cas. 13, 77 Pac. 879, 884], in the following language: “But it must be remembered that the act regulating the practice of dentistry and similar acts are not passed to promote the personal ends of individuals, but as salutary enactments in the exercise of the police power of the state to legislate for the safety, health and welfare of the people.” This end cannot be attained if the Dental Act is to be weakened or defeated by subterfuge or circumvented by devious methods. The right of a person merely to own a dental office is not involved in this proceeding. No one would dispute the right of any person to own a dental office or dental equipment. The question most appropriate here is whether the thing owned is used for a given purpose by a person lawfully entitled to so use it. Ownership is not the absolute test of the right of use. It may be conceded that a licensed dentist would have the right to employ unlicensed persons to perform various kinds of services. In such cases the employer is responsible to and for the acts of his employees. But the converse of the proposition is not always true. In the instant case Painless Parker Dentist, a corporation, and the Associated Dental Supply Company, a corporation, are the employers of Painless Parker, the licensed dentist. If the employment is Iona fide, as the uncontradicted evidence tends to prove, the corporations which are purely commercial enterprises, none of whose directors need be licensed dentists, are the masters of the situation, and may with or against the wish of Painless Parker, the dentist, employ such licensed persons as may be to their commercial advantage, having less regard for. the skill or fitness of the persons so employed than would a licensed proprietor who is solemnly charged by the obligation he assumes to the state to respect the salutary enactments passed in the exercise of the police power for the safety, health and welfare of the public. (Ex parte Whitley, supra.)

To whom do the licensed dentists employed by the corporations owe their statutory duty, to Painless Parker or to the commercial institutions which pay them, or to the patient assigned them to serve? If they owed their first allegiance to their employer, the corporation, as was held in People v. Merchants Protective Corp., 189 Cal. 531 [209 Pac. 363], a case involving the duty of an attorney to his client, then they owed but a secondary and divided loyalty to the patient. This was denounced as not within the intendments of the law and practice. The practice of dentistry, like the practice of the law, has long had a sufficiently definite meaning throughout this country. Legislative bodies have accepted this common understanding of the people and enacted laws consistent therewith. The methods of petitioner and his corporate associates cannot be consistently adjusted to such common understanding which is reflected in our statutes.

The practice of dentistry is not open to commercial exploitation. Such would be its fate if the methods adopted by petitioner should become general. That a corporation may not engage in the practice of the law, medicine or dentistry is a settled question in this state. None of those professions which involves a relationship of a personal as well as a professional character, which has to do with personal privacy, can be placed in the same category as druggists, architects or other vocations where no such relationship exists. The question here is whether the practices as jointly carried on by petitioner and his corporate associates and entities justify the inference that all are, as a matter of fact, mutually engaged in the practice of dentistry, or do the particular methods employed sustain the accusations, or any of them, charging petitioner with unprofessional conduct. The record speaks for itself, and further particularization is .not necessary.

Petitioner has not shown that a greater or better public good has been promoted by the formation of the corporations and subsidiary associations by and through which he has conducted the practice of dentistry than that which has accrued to the long-established ethical standards which are founded upon experience, investigation and research, and which have so universally met with the approval of the public’s conception and understanding of the legal and ethical proprieties as to have become codified into the laws of this state and practically into the laws of many of the countries of the civilized world.

Considering the letter and spirit of the Dental Act founded upon the universal method of practicing dentistry which has prevailed in this state for many years, we are of the view that the findings of the Board of Dental Examiners are supported by the evidence. Especially is this true as to count I, which charges Painless Parker with aiding and abetting Painless Parker Dentist, a corporation, in the practice of dentistry. The word “person” includes a corporation as well. (Sec. 17, Code Civ. Proc.) We are further of the view that count II is included or merged in the other counts and should not be included in a separate count. Count III is sustained upon the use of the name “Painless Parker Dentist”, a corporation, which was used interchangeably with the name “Painless Parker, Dentist”, the adopted name of petitioner. We are of the view further that there is evidence in the record sufficient to sustain the finding that petitioner, through his associations with the Parker organizations, was using and permitting to be used the fictitious name E. R. Parker System, suggesting and indicating that E. R. Parker was engaged in the practice of dentistry. E. R. Parker was a name discarded by petitioner, and so far as he was concerned it became fictitious after he voluntarily caused his name to be changed to Painless Parker. The real object, purpose and motive of petitioner in changing his name in the first instance to “Painless” Parker, and secondly in organizing the corporation Painless Parker Dentist, which corresponded precisely to his adopted name when he placed the word “dentist” thereafter, which he had the right to do under the statute, and thirdly in the retention of his original name “E. R. Parker”, under which he had practiced dentistry, were proper matters for the consideration of the Board of Dental Examiners in connection with all the other evidence in the record.

The only question presented by this appeal is one of jurisdiction. We are of the opinion that the acts complained against bring petitioner within the purview of the acts defining unprofessional conduct as herein set forth.

It is insisted that the long period of time over which petitioner has operated and the interpretation that the board and its legal adviser have placed upon said act is entitled to weight in the proceeding. For a period of some fourteen years the board and petitioner have • had frequent controversy as to the legality and professional propriety of petitioner’s methods employed in the practice of dentistry. At no time was the subject set at rest. Delayed action on the part of those who are charged with the execution of laws will not be permitted to annul the law. It may be considered by the court as a reason for the mitigation of punishment, but the judicial department is not absolutely bound to regard it. Several of the witnesses who were employees of the Parker organization upon being called to the stand were advised by their attorneys that they might claim their privilege and decline to testify on the ground that they were not required to give testimony against themselves. The board thereupon promised them immunity from prosecution if they would testify under the provisions of section 1324 of the Penal Code, which section had been repealed some fourteen years prior to the day of the hearing. Said witnesses testified and' petitioner claims that this evidence was improperly admitted and cannot be considered, on the ground that it was obtained through mistake as to section 1324 being a subsisting act. There is no merit in this contention. Said witnesses, if a prosecution should be instituted against them, may have urged the point, but petitioner cannot raise such an objection in a proceeding instituted against him only. The competency of evidence does not in any way depend upon the means by which it is brought into court, where it is offered in evidence. The courts upon the mere question of admittance or rejection of evidence will not take cognizance of the mode of production unless it is shown the defendant himself has been compelled to give or .produce it. (People v. Mayen, 188 Cal. 237 [24 A. L. R. 1383, 205 Pac. 435], which is the leading case on the subject, leaves no doubt as to the rule in this state.) It is earnestly insisted that the suspension for a period' of five years from the practice of dentistry imposed by the Board of Dental Examiners is excessive. We may agree with petitioner that it does appear rather severe, considering the age of petitioner and the circumstances of the controversies which have been waged between him and the Board of Dental Examiners. As above remarked, we have no power to modify it. The board that imposed the penalty has the power at any time to modify or revoke it as may appear to them to be just.

Judgment affirmed.

Curtis, J., Preston, J., Tyler, J., pro tem., and Waste, C. J., concurred.