Board of Governors of Registered Dentists of Oklahoma v. Burk, 48287
| Decision Date | 01 June 1976 |
| Docket Number | No. 48287,48287 |
| Citation | 551 P.2d 1122 |
| Court | Oklahoma Supreme Court |
| Parties | The BOARD OF GOVERNORS OF the REGISTERED DENTISTS OF OKLAHOMA, Appellee, v. Gerald C. BURK, Appellant. |
Robert C. Schacher, Lawton, and James E. Poe, Tulsa, for appellee.
Warren Gotcher, Gotcher, Gotcher & Gotcher, McAlester, for appellant.
The plaintiff, The Board of Governors of the Registered Dentists of Oklahoma (appellee), brought this action against the defendant, Gerald C. Burk (appellant), to permanently enjoin the defendant from the unlicensed practice of dentistry pursuant to 'The State Dental Act,' 59 O.S.1971, § 328.1 et seq. The petition alleges the defendant was not licensed to practice dentistry as required by the act.
The defendant is alleged to have performed various acts constituting the practice of dentistry, in violation of 59 O.S.1971, § 328.19, subsections (m), (n), (o), and (r). This section provides that a person shall be regarded as practicing dentistry within the meaning of the acts who does various acts enumerated therein. Among the acts constituting the practice of dentistry are the four, which the defendant is alleged to have done, which are set out in said sections as follows:
'(m) shall take impression of the teeth and jaws;
(n) shall furnish, supply, construct, reproduce or repair, or offer to furnish, supply, construct, reproduce or repair, prosthetic dentures (sometimes known as plates), bridges or other substitutes for natural teeth for the user or prospective user thereof;
(o) shall adjust or attempt or profess to adjust any prosthetic denture, bridge, applicance or any other structure to be worn in the human mouth; . . ..
(r) shall own, maintain, or operate an office or offices by holding a financial interest in same for the practice of dentistry. . . .'
The defendant has owned and operated Burk's Dental Laboratory in Duncan, Oklahoma, for a number of years. It is admitted that he is not a licensed dentist. Relevant to the issue presented is the fact that the above § 328.19 of the Act provides that nothing therein shall prevent:
'The fabrication of dental appliances pursuant to a specific work authorization written by a licensed dentist, by a dental laboratory technician in a dental laboratory using inert materials and mechanical devices for the fabrication of any restoration, appliance or thing to be worn in the human mouth.'
No question is raised in this appeal as to his being a dental technician or his right to operate a dental laboratory. Pertinent only to this appeal is the fact that the defendant was not and had never been a licensed dentist.
In addition to calling the defendant as a witness, the plaintiff relied on two witnesses, Gooch and Snider. The defendant is alleged to have prepared and sold to both artificial teeth without having work authorization from a licensed dentist.
Witness Gooch was a retired Navy man who worked as an investigator for the plaintiff. He was requested to check on the defendant. On December 5, 1973, he went to the defendant's place of business where he asked about a type of 'partials' that he might need. He testified the defendant examined his mouth.
Gooch testified the defendant had an old style dental chair and some 'apparatuses which he placed into the mouth' and that defendant put his fingers in Gooch's mouth and examined the gums and teeth and advised him that he did not do implants. Gooch testified the defendant did offer to make a couple of 'partials' for $60.00 each.
Gooch testified that on January 17, 1974, he returned to the defendant's office where impressions were made by the defendant and because of some difficulty, the price of one of the partials raised to $75.00. Gooch went back on February 4, 1974, and the 'partials' were fitted and refitted a number of times by the defendant. Gooch paid the defendant $135.00, for which he was reimbursed by the plaintiff. Gooch testified he observed the defendant fitting some type of apparatus in a lady's mouth and that he saw an elderly gentleman being fitted.
After the court granted immunity to the defendant, insofar as Gooch was concerned only, the defendant testified he did the work for Gooch as Gooch testified. The defendant said he only did the work after Gooch had asked several times and he felt sorry for him.
Witness Snider, a local businessman, testified that he had gone to the defendant and had 'partials' made and that defendant had made teeth for his wife. The defendant admitted he knew the Sniders, but declined to answer a question about them on the grounds of self-incrimination.
The court made extensive findings of fact and conclusions of law which confirm the plaintiff's position. The court then made the order for a permanent injunction from which this appeal is prosecuted.
The appellant seeks reversal of the trial court's judgment under two propositions. First, the appellant urges it was error to admit the testimony of Gooch since Gooch entrapped the defendant; second, that 59 O.S.1972 § 328.19(n) is unconstitutional.
The appellant's argument on entrapment is that while this is not a criminal prosecution as provided by 59 O.S.1971 § 328.49, the defendant may be jailed for violation of the injunction, pursuant to 12 O.S.1971 § 1390. The appellant asserts that while the legislature provided in 59 O.S.1971 § 328.16 that the plaintiff may have investigators, it did not intent that such investigators should 'manufacture the illegal practice of dentistry.'
This proposition is based on the testimony of the appellant that Gooch represented himself as being too poor to afford an implant by a licensed dentist and urged the defendant to do the work; and that the defendant finally felt sorry for Gooch. Gooch's testimony supports an interpretation that the evidence really shows merely that Gooch represented that he wanted the work done for less cost and that the...
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