Webster v. Board of Dental Examiners

110 P.2d 992, 17 Cal. 2d 534, 1941 Cal. LEXIS 286

• Court: California Supreme Court
• Decided: March 6, 1941
• Docket: L. A. 17634
• Status: Published

Opinions

GIBSON, C. J.

This is an appeal from the decision of the Superior Court of San Diego County which denied appellant’s petition for a writ of mandate to compel the respondent Board of Dental Examiners to reinstate his license to practice dentistry. In accordance with the provisions of the Business and Professions Code, sections 1670-1680, appellant’s license was suspended by the board for a period of six months for unprofessional conduct. Appellant sought to review the board’s order by this proceeding in mandamus. It was alleged in the petition that the statute was unconstitutional; that there was no evidence to support the findings of the Board; that if there was any evidence, it was wholly insufficient because the proceeding was quasi-criminal in character; that the board acted beyond its jurisdiction; that the board was biased; and that the board considered matters not properly before it. Each of these allegations was denied in the return to the alternative writ, and after a hearing on the record of the proceedings before the board, the Superior Court rendered its judgment denying the relief sought. Findings of fact were expressly waived by the parties in open court.

Upon this appeal only three of these asserted errors are urged: (1) That there was no evidence before either the Superior Court or the board to justify the order made; (2) that in view of the quasi-criminal nature of the proceeding the evidence was insufficient to justify the order made; and (3) that the board exceeded its jurisdiction by failing to make proper findings upon which to base its order of suspension.

The Board of Dental Examiners is a statutory body, consisting of seven members of the profession and charged with the duty of administering the provisions of the Dental Practice Act. (Business and Professions Code, secs. 1600-1752.) A similar board has existed in California since 1885 (Stats. 1885, p. 110) for the purpose of examining applicants and granting licenses to practice dentistry to properly qualified persons. Since 1909 the board has had the power to re-voice or suspend licenses for specified causes. (Stats. 1909. p. 806.) The revocation and suspension of professional licenses to practice dentistry by such an administrative board is sanctioned by long practice in this state and by the decisions of this court. (Jacobs v. Board of Dental Examiners, 189 Cal. 709 [209 Pac. 1006]; Homan v. Board of Dental Examiners, 202 Cal. 593 [262 Pac. 324]; Painless Parker v. Board of Dental Examiners, 216 Cal. 285 [14 Pac. (2d) 67].) In 1937 the Legislature revised the Dental Practice Act and sought to specify with more particularity the kind of activity which comprises “unprofessional conduct” and thus constitutes grounds for the revocation or suspension of a license by the board. (Stats. 1937, p. 1248; Business and Professions Code, sec. 1680.) In the present case appellant was charged with unprofessional conduct within three of the statutory definitions: (1) “The advertising of professional superiority or the performance of professional services in a superior manner” (sec. 1680 [12]); (2) “The making use of any advertising statements of a character tending to deceive or mislead the public” (sec. 1680 [11]); and (3) “The advertising to guarantee any dental service ...” (sec. 1680 [17].)

Appellant first challenges the order of suspension on the theory that administrative proceedings to revoke a professional license are quasi-criminal in nature. It is suggested that the rules governing burden of proof, and quantum of proof must be those which apply in criminal trials, and that in consequence the board used an improper standard m weighing the evidence. This analogy between a proceeding to revoke a license and a criminal trial is found in a number of the earlier cases. In some of the decisions, however, language describing the revocation of a license as penal in nature is entirely inapplicable to an administrative proceeding brought for that purpose, because in the particular case the legislature had provided for forfeiture of the professional license as an extra penalty to be added by the criminal court after a conviction for violation of the statute. (See Cavassa v. Off, 206 Cal. 307, 312 [274 Pac. 523].) In some states such a criminal proceeding is the ordinary way of accomplishing the revocation of a professional license. (See Commonwealth v. Brown, 302 Mass. 523 [20 N. E. (2d) 478].)

Where, on the other hand, the legislature has created a professional board and has conferred upon it power to administer the provisions of a general regulatory plan governing the members of the profession, the overwhelming Aveight of authority has rejected any analogy which would require such a board to conduct its proceedings for the revocation of a license in accordance with theories developed in the field of criminal law. (Suckow v. Alderson, 182 Cal. 247 [187 Pac. 965]; Lanterman v. Anderson, 36 Cal. App. 472 [172 Pac. 625]; Ramsay v. Shelton, 329 Ill. 432 [160 N. E. 769]; Spurgeon v. Rhodes, 167 Ind. 1 [78 N. E. 228]; Meffert v. State Board, 66 Kan. 710 [72 Pac. 247, 1 L. R. A. (N. S.) 811], affirmed per curiam 195 U. S. 625 [25 Sup. Ct. 790, 49 L. Ed. 350]; In re Smith, 10 Wend. [N. Y.] 449; State ex rel. Hagen v. Superior Court, 139 Wash. 454 [247 Pac. 942]; State v. Schaeffer, 129 Wis. 459 [109 N. W. 522]; Reetz v. Michigan, 188 U. S. 505, 509 [23 Sup. Ct. 390, 47 L. Ed. 563]; Butcher v. Maybury, 8 Fed. (2d) 155. See 9 Wigmore, Evidence [3d ed.], sec. 2498, pp. 327, 328; 48 C. J. 1101, sec. 73; 11 Cal. L. Rev. 273, 275.) Many California cases have expressly rejected the contention that administrative proceedings for the revocation of a professional license are to be governed by criminal law theories on matters of evidence. (Suckow v. Alderson, supra, p. 251; In re Vaughan, 189 Cal. 491, 496 [209 Pac. 353, 24 A. L. R. 858]; Lanterman v. Anderson, supra, 36 Cal. App. at p. 478; Thrasher v. Board of Medical Examiners, 44 Cal. App. 26, 29 [185 Pac. 1006]; Winning v. Board of Dental Examiners, 114 Cal. App. 658, 664 [300 Pac. 866]; Anderson v. Board of Medical Examiners, 117 Cal. App. 113, 117 [3 Pac. (2d) 344]; Jameson v. Board of Dental Examiners, 118 Cal. App. 105 [5 Pac. (2d) 47]; Bold v. Board of Medical Examiners, 135 Cal. App. 29, 34 [26 Pac. (2d) 707]; Traxler v. Board of Medical Examiners, 135 Cal. App. 37, 39 [26 Pac. (2d) 710]; cf. Gipner v. State Civil Service Com., 13 Cal. App. (2d) 100, 106 [56 Pac. (2d) 535].) The same rule is applied in administrative proceedings preliminary to orders of disbarment or suspension of attorneys. Despite early cases which speak in general terms of the analogy to a criminal prosecution (see Matter of Haymond, 121 Cal. 385 [53 Pac. 899]), the rule that criminal law theories on matters of evidence are inapplicable to such proceedings was established at a time when disciplinary proceedings were still a matter for the courts alone (In re Vaughan, supra), and it has been followed since the adoption of the administrative procedure upon which orders of disbarment or suspension are at present based. (In re Winne, 208 Cal. 35, 41 [280 Pac. 113]; McIntosh v. State Bar, 211 Cal. 261, 263 [294 Pac. 1067]; Fish v. State Bar, 214 Cal. 215, 222 [4 Pac. (2d) 937]; Marsh v. State Bar, 2 Cal. (2d) 75, 78 [39 Pac. (2d) 403]; Johnson v. State Bar, 4 Cal. (2d) 744, 758 [52 Pac. (2d) 928]; Waterman v. State Bar, 14 Cal. (2d) 224, 227 [93 Pac. (2d) 95]; 9 Cal. Jur. Ten-year Supp. 429 et seq.)

Some of the cases relied upon by appellant are clearly distinguishable. Thus, Cavassa v. Off, supra, is not in point because there the legislature actually contemplated a criminal prosecution. The statement in Messner v. Board of Dental Examiners, 87 Cal. App. 199, 205 [262 Pac. 58], that such a proceeding is gitast-criminal, is dictum. In that case the court held that a reasonable construction of the statute required that where one was charged with aiding and abetting an unlicensed person to practice dentistry, it must be shown that the unlicensed person had some control over the rendering of professional services. The court said that there was an entire absence of evidence to show any such management of the office by an unlicensed person as the statute contemplated. (87 Cal. App. at p. 204.) This lack of evidence upon a material issue required the annulment of the board’s order. The further statement that the proceedings were quasi-criminal in nature is dictum which is contradicted so far as it relates to matters of evidence by the long line of cases cited above. Randall v. Board of Medical Examiners, 110 Cal. App. 61, 64 [293 Pac. 790], does not apply theories of criminal law to matters of evidence. The few remaining decisions which contain language tending to support petitioner’s view are contrary to the great weight of authority in California and elsewhere, as pointed out above.

The second contention of appellant is that there was “no evidence whatsoever” before either the board or the Superior Court to support the order of suspension. It should be observed here that this is an appeal from a judgment of the Superior Court denying relief to the appellant, and upon familiar principles this court need inquire only whether there was evidence of a substantial nature to support the judgment of the court below. (Tupman v. Haberkern, 208 Cal. 256, 262 [280 Pac. 970]; Thom v. Stewart, 162 Cal. 413, 420 [122 Pac. 1069]; 2 Cal. Jur. 912 et seq.) Similarly, where reasonable minds might differ on the inferences to be drawn from a particular set of facts, the appellate court will not substitute its own conclusions for those reached by the trial court. (Hamilton v. Pacific Elec. Ry. Co., 12 Cal. (2d) 598, 603 [86 Pac. (2d) 829]; Mah See v. North American Acc. Ins. Co., 190 Cal. 421, 426 [213 Pac. 42, 26 A. L. R. 123]; Hughes v. Quackenbush, 1 Cal. App. (2d) 349, 354 [37 Pac. (2d) 99]; Hales v. Snowden, 19 Cal. App. (2d) 366, 372 [65 Pac. (2d) 847].)

The evidence in the instant case included the advertisement itself and the testimony of appellant. If either the advertisement or the testimony offers any substantial support for the conclusion of the court below, the judgment must be affirmed. Appellant’s argument is, in substance, that the advertising statements admittedly made by him do not constitute a violation of the terms of the statute. The language used by the appellant and the circumstances under which it was used are admitted. The application of the legal standard prescribed by the statute to the admitted facts requires a construction of the statutory provisions upon which both the board and the court below were in agreement.

We need consider only two of the board’s determinations: first, that the statements in the advertisement constituted “advertising to guarantee” dental service; second, that they were “of a character tending to deceive or mislead the public.” As to the first, the advertisement contained the following statements : “This new material . . . will absolutely not change in color. Does not stain from smoking, alcohol, or alkaloids, will not shrink or warp ’ ’, and also, ‘‘ These new dental plates are so ably designed that Dr. Webster challenges you to detect any false appearance . . . Each tooth is set so that it appears to be growing there. ...” It also said, “Dr. Webster’s Immediate Restoration Dentures or plates are faithful reproductions of your own natural gums and teeth, in their true color, size and form. These plates are made to defy detection . . . most intimate friends need not know that you are wearing artificial teeth.” Appellant’s defense to this part of the charge, as nearly as can be discerned from his brief, is that the statements do not amount to a binding guarantee, and are too general to come within the statutory prohibition. It is plain that if his view were accepted, and the rules of contract thus imported into the statute, the purpose of the law would be defeated. The legislative intention is clearly seen in this and other portions of the statute. It was designed to prohibit advertising which induced the reader to believe that the dentist proposed to guarantee a particular result. The statute does not merely forbid a contractual guarantee of a particular dental service, but instead prohibits any “advertising to guarantee any dental service”, that is, advertising which represents that a guarantee may be forthcoming. Under this interpretation, the conclusion of the board and the trial court that the statements constitute a violation of the statute must be sustained.

The board further determined that the advertisement had a character tending to deceive or mislead the public. A few statements quoted thereform will demonstrate the reasonableness of this conclusion. Appellant said, among other things, “DR. WEBSTER’S IMMEDIATE RESTORATION PLATE MATERIAL WEIGHS LESS THAN I OZ. This beautiful plate material . . . made from a secret formula, is a development of dental science which many plates wearers have been thankful for,” and also, “Have Tour Dental Plates Made ‘The Webster Way’ of IMMEDIATE RESTORATION.” The ordinary reader is given the unmistakable impression by this language that appellant used a secret type of plate material not generally available, and that his plates were made according to a unique method called “ ‘The Webster Way’ of IMMEDIATE RESTORATION”. Appellant testified, however, that he had no secret material not available to the entire profession, and that his methods were no different from those in general use.

On this phase of the case appellant advances the contention that only statements which are untrue are within the prohibition of the statute, and that these particular statements in the advertisement were not proven to be untrue. This contention wholly overlooks both the language and the purpose of the statute. The act refers to statements “of a character tending to deceive or mislead the public.” (Business and Professions Code, sec. 1680 [11].) It has been recognized in recent years that the evils of deceptive advertising cannot be reached effectively if legislation to that end is interpreted to require proof of actual reliance upon a false statement knowingly made, as in a common law action in deceit. (See Handler, “False and Misleading Advertising”, (1929) 39 Yale L. J. 22; 53 Harv. L. Rev. 828; 31 Mich. L. Rev. 804.) Even in criminal statutes using such words as “false or misleading”, some courts have recognized and upheld the intention of the legislature to prohibit something more than merely those advertisements which are untrue. (Taylor v. United States, 80 Fed. (2d) 604, 605; People v. Wahl, 39 Cal. App. (2d) Supp. 771, 773 [100 Pac. (2d) 550]; cf. Commonwealth v. Ferris, 305 Mass. 233, 25 N. E. (2d) 378, 380; Jasnowski v. Judge of Recorder’s Court, 192 Mich. 139 [158 N. W. 229], 89 A. L. R. 1004.) In the field of ordinary commercial advertising, regulatory agencies which are charged with the duty of combating false or misleading advertising are not required to prove that the particular deceptive statements are actually false. (United States v. 95 Barrels of etc. Vinegar, 265 U. S. 438, 442 [44 Sup. Ct. 529, 68 L. Ed. 1094]; Caldwell, Inc., v. Federal Trade Com., 111 Fed. (2d) 889, 890; General Motors Corp. v. Federal Trade Com., 114 Fed. (2d) 33, 36; cf. Belmont Laboratories, Inc., v. Federal Trade Com., 103 Fed. (2d) 538, 541; 31 Mich. L. Rev. 804, 815.)

In view of the conclusion reached under similar statutes regulating ordinary commercial advertising, it would be unthinkable to accord a more stringent construction to a statute regulating one of the learned professions so intimately connected with public health and safety. In discussing an identical statute Chief Justice Hughes said, “The legislature was not dealing with traders in commodities, but with the vital interest of public health, and with a profession treating bodily ills and demanding different standards of conduct from those which are traditional in the competition of the market place. The community is concerned in providing safeguards . . . against practices which would tend to demoralize the profession by forcing its members into an unseemly rivalry which would enlarge the opportunities of the least scrupulous. What is generally called the ‘ ethics ’ of the profession is but the consensus of expert opinion as to the necessity of such standards.” (Semler v. Oregon State Board of Dental Examiners, 294 U. S. 608, 610 [55 Sup. Ct. 570, 79 L. Ed. 1086].) This interpretation finds an abundance of support elsewhere in cases dealing with similar statutes. (State Board of Dental Examiners v. Miller, 90 Colo. 193 [8 Pac. (2d) 699], appeal dismissed 287 U. S. 563 [53 Sup. Ct. 6, 77 L. Ed. 496]; Commonwealth v. Brown, 302 Mass. 523 [20 N. E. (2d) 478]; cf. Sherman v. State Board of Dental Examiners, (Tex. Civ. App.) 116 S. W. (2d) 843, 847, hearing den. 130 Tex. 657; Craven v. Bierring, 222 Iowa 613 [269 Pac. 801]; Donahue v. Andrews, 150 Or. 652 [47 Pac. (2d) 940]; Modern System Dentists, Inc., v. State Board of Dental Examiners, 216 Wis. 190 [256 N. W. 922]. See, also, Dr. Bloom Dentist, Inc., v. Cruise, 259 N. Y. 358 [182 N. E. 16]; Semler v. Oregon State Board of Dental Examiners, 148 Or. 50 [34 Pac. (2d) 311].)

The third contention of appellant is that the order was void because the board failed to make proper findings to support it, and that the judgment of the Superior Court upholding the order was therefore erroneous. This point was not developed in the briefs of either party and no cases are cited to sustain appellant’s position. Because of this omission alone we could, with propriety, affirm the judgment below as to this contention without further discussion. (Title G. & T. Co. v. Fraternal Finance Co., 220 Cal. 362, 363 [30 Pac. (2d) 515]; Bradley v. Butchart, 217 Cal. 731, 747 [20 Pac. (2d) 693]; Duncan v. Ramish, 142 Cal. 686, 690 [76 Pac. 661].) But if we consider the proposition on the merits, appellant is in no better position. The board did make its findings, and what appellant complains of is not that there was an absence of findings, but that they were defective. The actual findings incorporated by reference the language of the accusation which initiated the proceeding against petitioner. It is well settled that general findings in the words of the complaint are a sufficient compliance with the requirement of making findings of fact. (Dam v. Zink, 112 Cal. 91, 93 [44 Pac. 331]; Turner v. Turner, 187 Cal. 632, 636 [203 Pac. 109]; California Canning Peach Growers v. Williams, 11 Cal. (2d) 221, 232 [78 Pac. (2d) 1154]; Scarborough Co. v. Colver, 73 Cal. App. 435, 439 [238 Pac. 1102]; 24 Cal. Jur. 984 et seq.) The findings here were clearly sufficient under this rule, and the statute imposes no additional or more specific requirement as to the form in which the finding of the board must be put. It states only that a license may be revoked or suspended for specified causes. This is, of course, a requirement that the board find the existence of at least one of the grounds specified as a basis for its order. (Cf. Elite Dairy Prod., Inc., v. Ten Eyck, 271 N. Y. 488, 498 [3 N. E. (2d) 606]; Douglas v. Noble, 261 U. S. 165, 169 [43 Sup. Ct. 303, 67 L. Ed. 590].) Though the reviewing court might prefer to have the grounds for the board’s determination stated in complete detail, including findings as to specific portions of the questioned advertisement, we cannot imply the necessity for such detailed findings in the absence of a statutory requirement. (See United States v. B. & O. R. R. Co., 293 U. S. 454, 464 [55 Sup. Ct. 268, 79 L. Ed. 587]; Southern Pac. Co. v Railroad Com., 13 Cal. (2d) 89, 107, 112 [87 Pac. (2d) 1055]. Cf. Homan v. Board of Dental Examiners, 202 Cal. 593, 594, 595 [262 Pac. 324]; Bold v. Board of Medical Examiners, 135 Cal. App. 29, 32 [26 Pac. (2d) 707].) Where the finding of the board, either by a restatement of the charge made or by reference to the language of the accusation, sufficiently points out the specific ground upon which it has determined that a cause for suspension or revocation exists, it cannot be said that an order so based is void, however much the court might prefer a more detailed statement of the grounds for the order. (Cf. Elite Dairy Prod., Inc., v. Ten Eyck, supra.)

The judgment of the court below denying a peremptory writ of mandate is affirmed.

Shenk, J., Curtis, J., Traynor, J., and Edmonds, J., concurred.