Angelos v. State Bd. of Dental Examiners

• Court: Oregon Supreme Court
• Writing for the Court: Before McALLISTER; GOODWIN
• Citation: Angelos v. State Bd. of Dental Examiners, 414 P.2d 335, 244 Or. 1 (Or. 1966)
• Decision Date: 18 May 1966
• Parties: William J. ANGELOS, Respondent, v. The Oregon STATE BOARD OF DENTAL EXAMINERS, an agency of the State of Oregon, Appellant.

Page 335

414 P.2d 335

244 Or. 1

William J. ANGELOS, Respondent, v. The Oregon STATE BOARD OF DENTAL EXAMINERS, an agency of the State of Oregon, Appellant.

Supreme Court of Oregon, In Banc.

Argued and Submitted April 5, 1966.

Decided May 18, 1966.

Henry Kane, Asst. Atty. Gen., Portland, argued the cause for appellant. With him on the briefs was Robert Y. Thornton, Atty. Gen., Salem.

Anthony Pelay, Jr., and Oliver Crowther, Portland, argued the cause and filed a brief for respondent.

King, Miller, Anderson, Nash & Yerke, Curtis Cutsforth, and Jean P. Lowman, Portland, filed a brief in support of appellant for Dr. John Anderson, Beaverton and others as amici curiae.

Before McALLISTER, C.J., and PERRY, SLOAN, GOODWIN, DENECKE, HOLMAN and SCHWAB, JJ.

GOODWIN, Justice.

Plaintiff, a dentist, brought suit to have declared void a regulation, ¹ promulgated by the Oregon State Board of Dental Examiners, which prohibits licensees from advertising certain dental specialties unless the dentist so advertising meets certain standards. Plaintiff had posted a sign reading 'Dentistry-Orthodontics.' The trial court summarily struck down the challenged regulation. The Board appeals.

Under its authority to 'make and enforce rules * * * for regulating the practice of dentistry * * *,' ORS 679.250(7), the Board by regulation prohibits Oregon dentists from holding themselves out as specialists unless they meet certain standards of training and experience beyond the minimums required for a license to practice. The Board makes no attempt to restrain any dentist in the kinds of dentistry he performs, but merely seeks to regulate advertising within the meaning of ORS 679.140. The plaintiff asserts that the regulation is an unwarranted denial of a claimed right to advise the public that he is qualified to practice any or all professionally recognized forms of dentistry.

After hearing the opening statements of counsel, the trial court determined that a judgment on the pleadings was appropriate. The Board had admitted in its answer that every duly licensed Oregon dentist is authorized to practice orthodontia (as well as all other dental specialties). The Board merely asserts the power to prevent a nonspecialist from holding himself out as possessed of special skill. The trial court decision thus squarely presents the issue whether the Board has power to prohibit practitioners from Advertising as specialists in subdivisions of their professional field in which they are admittedly entitled to Practice, but in which they have not qualified themselves as specialists.

It is settled that the legislature constitutionally may regulate dental advertising. Semler v. Oregon Dental Examiners, 148 Or. 50, 34 P.2d 311 (1934), affirmed 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086 (1935). There is thus no constitutional barrier to the Board's action if a proper delegation of power has been made by the legislature.

There is no allegation in this case of procedural irregularity in the adoption of the challenged regulation. This case therefore turns upon the scope of the delegated rule-making authority. ORS 183.400(2). We must decide whether the general power to 'make and enforce rules * * * for regulating the practice of dentistry * * *' includes the power to legislate concerning the manner in which a licensee holds himself out as an expert in the one or more subdivisions or 'specialties' of the dental practice.

By the enactment of ORS 679.250(7), which authorizes the Board to promulgate administrative regulations, the Legislative Assembly has established certain criteria to be considered in the exercise of the rulemaking power:

'* * * In adopting rules and regulations, the board shall take into account all relevant factors germane to an orderly and fair administration of this chapter and of ORS chapter 680, the practices generally and currently followed and accepted by persons licensed to practice dentistry in this state, dental techniques commonly in use, relevant technical reports published in recognized dental journals, the curriculum at accredited dental schools, the desirability of reasonable experimentation in the furtherance of the dental arts, and the desirability of providing the highest standard of dental care to the public consistent with the lowest economic cost.'

Upon examining other sections of the same chapter, we find that the legislature has specifically denounced misleading advertising, and has designated it as a ground for disciplinary action. ORS 679.140. The statute does not define what might be characterized as misleading advertising, but it is reasonable to assume that the Legislative Assembly was willing to ...