Richard A. Borgner v. Robert G. Brooks

284 F.3d 1204, 2002 U.S. App. LEXIS 3518, 2002 WL 347828
CourtCourt of Appeals for the Eleventh Circuit
DecidedMarch 6, 2002
Docket01-12098
StatusPublished
Cited by28 cases

This text of 284 F.3d 1204 (Richard A. Borgner v. Robert G. Brooks) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eleventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richard A. Borgner v. Robert G. Brooks, 284 F.3d 1204, 2002 U.S. App. LEXIS 3518, 2002 WL 347828 (11th Cir. 2002).

Opinions

WILSON, Circuit Judge:

This case presents an issue of first impression: whether the disclosure provision [1207]*1207of Florida Statutes section 466.0282, which requires Florida-licensed dentists to include disclaimers when advertising specialty areas not recognized by the state and when advertising credentials from non-state approved credentialing organizations, places an unconstitutional ban on commercial speech. The district court found that it does, and granted summary judgment in favor of Dr. Richard A. Borgner, D.D.S., and the American Academy of Implant Dentistry (AAID) on their challenge to the statute’s constitutionality. After reviewing section 466.0282 under the test articulated in Central Hudson Gas and Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980), we find this statute to be constitutional under the First Amendment and reverse the summary judgment.

BACKGROUND

Borgner is a Florida-licensed dentist who practices general dentistry with an emphasis in implant dentistry in St. Pe-tersburg, Florida.1 In light of his specialty, Borgner advertises himself as a member of the AAID, a Fellow of the AAID, and a Diplómate of the AAID’s certifying board, the American Board of Oral Im-plantology/Implant Dentistry (ABOI/ID). The AAID is a national dental organization whose members may earn credentials— specifically, Associate Fellow and Fellow— in the field of implant dentistry. The organization’s primary purpose, goal and objective is the enhancement of its members’ knowledge, skill, and expertise in the field of implant dentistry. Implant dentistry and the organizations affiliated with this specialty, however, are not recognized by the American Dental Association (ADA) or the Florida Board of Dentistry (the Board).2

Prior to 1998, section 466.0282 prohibited Florida-licensed dentists from advertising a specialty practice, which included implant dentistry. This prohibition led Borgner to challenge the constitutionality of this statute, as it applied to implant dentistry. The district court found the statute unconstitutional to the extent that it banned all advertising of affiliation with or certification by non-ADA recognized dental organizations. Borgner v. Cook, 33 F.Supp.2d 1327, 1333 (N.D.Fla.1998) (Borgner I). At the urging of the Board, the Florida legislature amended section 466.0282, adding in pertinent part a provision that allows Florida-licensed dentists to advertise a specialty practice or credential accredited by a bona fide credentialing organization other than the ADA or the Board, but requires that the advertisement disclose that the indicated specialty or credentialing organization is not state-approved. Borgner, again, brought an action challenging the statute and again prevailed. Specifically, the district court granted summary judgment in favor of Borgner and the AAID, and declared section 466.0282 unconstitutional to the extent it prohibits Borgner from advertising membership in the AAID and his status in the AAID and ABOI/ID and to the extent that it prohibits him from representing to the public that his practice is limited to implant dentistry without also incorporating a disclosure statement.

[1208]*1208DISCUSSION

We review summary judgments de novo, applying the same standards as the district court and reviewing all facts and reasonable inferences in the light most favorable to the nonmoving party. Parks v. City of Warner Robins, 43 F.3d 609, 612-13 (11th Cir.1995); Warren v. Crawford, 927 F.2d 559, 561-62 (11th Cir.1991). Whether state restrictions on commercial speech are constitutional is an issue subject to de novo review. Mason v. Fla. Bar, 208 F.3d 952, 955 (11th Cir.2000).

Before analyzing section 466.0282 under the Central Hudson test, we must first determine whether the statute, taken as a whole, is clear as far as what is required and what is prohibited. EEOC v. Total Sys. Serv., Inc., 240 F.3d 899, 904 (11th Cir.2001)(Edmondson, J., concurring); St. Mary’s Hosp., Inc. v. Phillipe, 769 So.2d 961, 967 (Fla.2000) (per curiam) (“[A] statute must be construed in its entirety. ....”); Young v. Progressive Southeastern Ins. Co., 753 So.2d 80, 84 (Fla.2000) (“[A]ll parts of a statute must be. read together in order to achieve a consistent whole,” and “[wjhere possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with one another”). After reading section 466.0282 in its entirety, and taking into account all of its four subsections, we find the statute’s meaning to be plain and unambiguous on its face.

Subsection (1) of the statute lists the necessary prerequisites for a dentist to hold himself out as a specialist or as a member of an organization that recognizes the specialty: the dentist must have completed a specialty education program approved by the American Dental Association (ADA), and this specialty must be recognized by the ADA.3 Subsection (2) explains how dentists can still represent to the public that their practice is limited to a specific area of dentistry if their specialty is not authorized under subsection (1): the dentist must have attained membership in or attained credentials from an accrediting organization that is approved by either the Board or the ADA as a bona fide organization for such an area of dental practice (in order to receive Board or ADA approval, the organization must require dentists to meet several conditions).4 If a dentist’s [1209]*1209specialty does not fit into subsection (1), and if a dentist is not a member or lacks credentials in an organization under subsection (2), then subsection (3) applies. Subsection (3) allows dentists to advertise their practice emphasis, despite the lack of ADA recognition, if they include a disclaimer explaining that this specialty is not recognized by the ADA or the Board. Moreover, if the dentist wishes to advertise membership in a specialty organization not approved by the ADA or the Board, then the dentist may also advertise membership in this organization (or the credentials he/she has received in this organization) if the dentist includes a disclaimer explaining this organization is not recognized as a bona fide specialty accrediting organization by the ADA or the Board.5

Finally, subsection (4) explains the purpose behind the statute: the Florida Legislature does not want the public to be misled regarding the specialization and particular credentials of dentists. The Legislature wants the public to be informed that some dental specialties and some organizations recognizing these specialties are not sanctioned by the ADA or the Board. The Legislature finds including disclosure statements in these particular advertisements is the least restrictive means available to ensure consumers will not be misled.6

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Cite This Page — Counsel Stack

Bluebook (online)
284 F.3d 1204, 2002 U.S. App. LEXIS 3518, 2002 WL 347828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richard-a-borgner-v-robert-g-brooks-ca11-2002.