Brazil v. Arkansas Bd. of Dental Examiners

• Decision Date: 06 April 1984
• Docket Number: No. LR-C-81-675.,LR-C-81-675.
• Citation: 593 F. Supp. 1354
• Parties: Barry BRAZIL, et al., Plaintiffs, v. ARKANSAS BOARD OF DENTAL EXAMINERS, et al., Defendants.
• Court: U.S. District Court — Eastern District of Arkansas

593 F. Supp. 1354

Barry BRAZIL, et al., Plaintiffs, v. ARKANSAS BOARD OF DENTAL EXAMINERS, et al., Defendants.

No. LR-C-81-675.

United States District Court, E.D. Arkansas, W.D.

April 6, 1984.

COPYRIGHT MATERIAL OMITTED

Ron Bruno, Little Rock, Ark., for plaintiffs.

William H. Trice, III, Little Rock, Ark., for defendants.

MEMORANDUM OPINION

EISELE, Chief Judge.

In this action plaintiffs seek injunctive relief and damages for alleged violations of section 1 and 2 of the Sherman Antitrust Act, 15 U.S.C. §§ 1, 2 (1976), as well as alleged violations of their rights under the first, fifth, ninth and fourteenth amendments to the United States Constitution. At issue before the Court are the defendants' motions to dismiss the antitrust claims. For the reasons set forth below, the motions will be granted in part and denied in part.

I. Facts

A. Parties to the Litigation

Six plaintiffs have joined in filing a complaint against the Arkansas State Board of Dental Examiners, the Arkansas State Dental Association, and various members and officers of such groups. Plaintiffs contend that the defendants have conspired to restrain trade in the provision of certain dentistry-related services.

Plaintiff Barry Brazil owns and operates a dental laboratory, the American Denture Center, which constructs, repairs, reproduces, duplicates and processes dentures. Mr. Brazil claims he is qualified to and does carry out these functions and asserts he has more training and experience in the field than most practicing dentists. Mr. Brazil is not a dentist, see Brazil v. Arkansas State Board of Dental Examiners, 279 Ark. 41, 41 648 S.W.2d 476 (1983). Instead, he claims that by performing the above-mentioned functions he is a "denturist".

Plaintiff Pasty Brazil is Mr. Brazil's wife and executive secretary of the American Denture Center. The pleadings do not indicate whether she directly works with dentures.

Plaintiff Neil Hinsley is a dentist, who has been licensed to practice dentistry by the State of Arkansas. His office is or has been located on the same premises that house the American Denture Center.

The remaining three plaintiffs, Georgia and John Stahn and Carol Ann Bender are residents of Arkansas who allegedly have utilized the services of the American Denture Center because of cost and performance factors. They claim that if denied access to the services of the American Denture Center they "would be forced to incur far greater expense for dental services."

The complaint names fifteen defendants. The first is the Arkansas State Board of Dental Examiners ("Dental Board"). As will be discussed in greater detail infra, the Dental Board is a legislatively-created state agency charged with the duty of regulating the practice of dentistry. Mr. L.D. Redden has also been sued in his individual capacity and his official capacity as a member of the Dental Board, as have Dental Board members J.D. Atkinson, Taylor D. Buntin, Jr., Paul Fitzgerald, Earl Gill, Fallon D. Davis and Patsy C. Farris.

Also named as a defendant is the Arkansas State Dental Association ("Association"), a not-for-profit Arkansas corporation whose membership consists of dentists. The Association is a statutorily recognized organization that is vested with the duty of recommending to the Governor of Arkansas the names of dentists to be appointed to the Dental Board. Six of the Association's officers, Charles Finley, Don H. Barrow, L.V. Clement, Tommy G. Roebuck, George E. Gillian, and R.L. Smith, Jr., are sued individually and in their official capacities as officers of the Association.

B. Allegations Raised in the Case

Plaintiffs' sixteen-page Amended Complaint raises an amalgam of constitutional and Sherman Act claims, which may be summarized as follows:

First, the Board and the Association have sought to protect the economic interests of dentists by requiring any procedure undertaken in a dental laboratory to be accompanied by a work order signed by a licensed dentist.

Second, that the State, the Board and the Association have prohibited dentists from being employed by dental laboratories or being engaged in an ownership capacity in the operation of dental laboratories with non-dentists.

Third, that the Board has expanded the definition of "the practice of dentistry" by promulgating rules that prohibit anyone other than a licensed dentist from making impressions for dentures.

Fourth, that certain restrictions applicable to the plaintiffs, which were established only after the plaintiffs started advertising their services, were designed to harass and intimidate the plaintiffs. In a related claim, plaintiffs assert that the Board has launched a campaign against the plaintiffs to drive them out of business. They cite numerous cases brought by the Board against several of the plaintiffs as examples of such harassment tactics.

Fifth, plaintiffs allege what might possibly be construed as an equal protection claim in connection with litigation instituted by the Board against several of the plaintiffs. Specifically, they claim that they have been singled out for prosecution for alleged violations of Ark.Stat. Ann. § 72-545 while other operators of dental laboratories, which are owned by dentists, have not been sued even though they have engaged in activities that are identical to those of the plaintiffs.

Sixth, the plaintiffs challenge the rulemaking powers of the Dental Board. They specifically seek to enjoin enforcement of several rules adopted by the Board that prohibit the issuance of permits to providers of dental services unless the providers are entirely owned by licensed dentists. Plaintiffs also challenge the Board's rule that any licensed dentist who associates and advertises with unlicensed dental associations is guilty of unprofessional conduct. Plaintiffs assert that by taking these actions the defendants are attempting to monopolize the marketing and distribution of dental care services and in doing so have infringed upon the plaintiffs' rights to contract with licensed dentists.

Seventh, the plaintiffs challenge several rules adopted by the Board as unreasonable, arbitrary and capricious. They assert that the Rules are tainted heavily by the fact that all of the defendant members of the Board have a financial interest in restricting the opportunities of denturists to practice.

C. Nature of Plaintiffs' Antitrust Claims

Plaintiffs' antitrust claims are premised on Sections 1 and 2 of the Sherman Act, 15 U.S.C. §§ 1 and 2. Section 1 states in pertinent part:

Every contract, combination in form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal ....

Section 2 states:

Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding fifty thousand dollars, or by imprisonment not exceeding one year, or by both said punishments, in the discretion of the court.

The central thrust of plaintiffs' antitrust allegations appears to be that the Dental Board has conspired with the Dental Association to restrain denturists from providing dental-related services to the public. The defendants have allegedly done so by adopting and enforcing rules that restrain the activities of denturists and that prohibit denturists from associating with licensed dentists. Plaintiffs assert that such actions undertaken by the defendants are motivated by an attempt to monopolize the provision of dental services in the State of Arkansas. Plaintiffs also assert that by restricting denturists from freely practicing the defendants have attempted to fix, control and raise the price of dental services.

Defendants have all moved to dismiss the antitrust claims on the grounds that they are immune from antitrust liability under the "state action" doctrine. Due to the different status of the individual defendants, the Court will address their arguments separately.

II. State Action Immunity as Applied to the Dental Board

The Dental Board claims that it is immune from antitrust scrutiny because all of the actions it has undertaken arise out of its function as a state agency. Thus, the Dental Board asks the Court to hold in its favor on the basis of the "state action" doctrine. The Court observes at the outset that, although the "state action" doctrine dates back to 1943, it has recently undergone considerable re-appraisal and refinement. To understand the applicability of the doctrine in this case, it is therefore necessary to trace the development of the doctrine.

A. Development of the "State Action" Doctrine

The genesis of the doctrine is Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943), where the Supreme Court announced that Congress did not intend for the Sherman Antitrust Act to apply to "state action." At issue in Parker was the propriety of a California agricultural commodity marketing program administered by the State Director of Agriculture, members of the State Agriculture Prorate Advisory Commission, and others. As designed, the program restricted competition and provided a system of price maintenance in the sale of locally-grown raisins. A producer and packer of raisins brought suit under the Sherman Act against the various entities who administered the program to enjoin them from enforcing it. The Supreme Court denied the relief sought. The Court determined that in implementing and enforcing the program, the administrators were simply carrying out "an act of government." Id. at 352, 63 S.Ct. at 314. Although it unquestionably imposed a restraint on trade, the program constituted the sovereign exercise of state power "which the Sherman Act did not undertake to prohibit." Id. Thus, the Supreme Court...