Hicks v. Arkansas State Medical Bd., 76--13

• Decision Date: 21 June 1976
• Docket Number: No. 76--13,76--13
• Citation: 537 S.W.2d 794,260 Ark. 31
• Parties: Edna HICKS d/b/a the Beauty Box, Appellant, v. ARKANSAS STATE MEDICAL BOARD, Appellee.
• Court: Arkansas Supreme Court

Page 794

537 S.W.2d 794

260 Ark. 31

Edna HICKS d/b/a the Beauty Box, Appellant, v. ARKANSAS STATE MEDICAL BOARD, Appellee.

No. 76--13.

Supreme Court of Arkansas.

June 21, 1976.

Kip Glasscock, Port Arthur, Tex., John M. Fincher, North Little Rock (of counsel), for appellant.

Eugene R. Warren, Little Rock, for appellee.

ROY, Justice.

Appellant Edna Hicks, a licensed cosmetician, desired to offer ear piercing as a service to her customers. She filed a petition with the Arkansas State Medical Board (hereafter Board) requesting a declaratory ruling that the piercing of ears was not within the definition of the practice of medicine or surgery. On June 12, 1975, the Board after a hearing decided that ear piercing was encompassed in the phrase 'the practice of medicine' as defined in Ark.Stat.Ann. § 72--604 (Repl. 1964). ¹ The circuit court affirmed the decision of the Board and from that affirmation comes this appeal.

Appellant first urges that 'the findings, conclusions and decision of the Board affirmed by the circuit court, are based upon an error of law.' Ark.Stat.Ann. § 72--604(1) provides:

(1) The term 'practice of medicine' shall mean; (a) holding out one's self to the public within this state as being able to diagnose, treat, prescribe for, palliate or prevent any human disease, ailment, injury, deformity, or physical or mental condition, whether by the use of drugs, surgery, manipulation, electricity, or any physical, mechanical or other means whatsoever; (b) suggesting, recommending, prescribing or administering any from of treatment, operation or healing for the intended palliation, relief, or cure of any physical or mental disease, ailment, injury, condition or defect of any person with the intention of receiving therefor, either directly or indirectly, any fee, gift, or compensation whatsoever; (c) the maintenance of an office, or other place to meet persons, for the purpose of examining or treating persons afflicted with disease, injury or defect of body or mind; (d) using the title M.D., M.B., Physician, Surgeon, or any word or abbreviation to indicate or induce others to believe that one is engaged in the diagnosis or treatment of persons afflicted with disease, injury or defect of body or mind, except as otherwise expressly permitted by the laws of this state now or hereafter enacted relating to the practice of any limited field of the healing arts; or (e) performing any kind of surgical operation upon a human being. If any person who does not possess a valid license to practice medicine within this state and who shall not be exempted from the licensing requirements hereunder, shall do any of the acts hereinabove mentioned as constituting the practice of medicine, shall be deemed to be practicing medicine without complying with the provisions of this Act (§§ 72--601, 72--603--72--623) and in violation thereof.

We consider the issue raised in this case to be primarily a question of interpretation of the definitional aspects of the statute rather than a question of fact. The testimony of the two doctors at the Board hearing dealt mainly with possible adverse effects from the ear piercing procedure if not properly carried out. However, the Board after its hearing noted that it had '. . . consistently interpreted the practice of surgery as contained in the Arkansas Medical Practices Act as being the penetration of the epidermis by mechanical instruments or appliances . . .,' and would include the procedure of ear piercing.

At the Board hearing a copy of an advisory opinion issued by the attorney general was introduced. The opinion, relying upon Subsection (e) of 72--604(1), supra, determined that ear piercing was a surgical procedure within the intendment of this subsection and thus could be performed only by a licensed physician or other qualified person acting under physician supervision. The Board premised its determination of the issue to a large extent on the attorney general's opinion.

The opinions of executive agencies are not, of course, binding upon the court, but are held to some extent persuasive. In Shivers, et al. v. Moon Distributors, Inc., et al., 223 Ark. 371, 265 S.W.2d 947 (1954), we said:

* * * Inasmuch as the interpretation of statutes is a judicial function, naturally the construction placed upon a statute by an executive or administrative official will not be binding upon the court.

See also McCarley v. Orr, 247 Ark. 109, 445 S.W.2d 65 (1969).

We cannot agree with the interpretation placed on the statute by the attorney general and the Board. In interpreting statutes '. . . we give words their ordinary and usually accepted meaning in common language (citations omitted),' Phillips Petroleum Co. v. Heath, 254 Ark. 847, 497 S.W.2d 30 (1973); Kaiser v. Price-Fewell, Inc., 235 Ark. 295, 359 S.W.2d 449 (1962), and avoid resort to '. . . subtle and forced construction for the purpose of...