People ex rel. Dunbar v. Kogul

• Decision Date: 11 September 1972
• Docket Number: No. 24911,24911
• Citation: 179 Colo. 394,501 P.2d 738
• Parties: The PEOPLE of the State of Colorado, ex rel. Duke W. DUNBAR, Attorney General of the State of Colorado, and The State Board of Dental Examiners of the State of Colorado, Plaintiffs-Appellees, v. Van KOGUL, d/b/a Metropolitan Dental Laboratory, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 738

501 P.2d 738

179 Colo. 394

The PEOPLE of the State of Colorado, ex rel. Duke W. DUNBAR Attorney General of the State of Colorado, and The State Board of Dental Examiners of the State of Colorado, Plaintiffs-Appellees, v. Van KOGUL, d/b/a Metropolitan Dental Laboratory, Defendant-Appellant.

No. 24911.

Supreme Court of Colorado, En Banc.

Sept. 11, 1972.

Rehearing Denied Oct. 24, 1972.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for plaintiffs-appellees.

James B. Radetsky, Jules Ornstein, Denver, for defendant-appellant.

KELLEY, Justice.

The Attorney General brought this action on relation of the People of the State of Colorado and the State Board of Dental Examiners (State Board) pursuant to C.R.S.1963, 42--1--32(2) to enjoin Van Kogul, d/b/a Metropolitan Dental Laboratory (Van Kogul) from practicing dentistry in violation of The Dental Practice Law of Colorado. C.R.S.1963, 42--1--1 et seq. The trial court entered judgment for the State Board enjoining Van Kogul

'from repairing, constructing or reproducing prosthetic dentures, bridges, plates, or appliances to be used or worn as substitutes for natural teeth, without a prescription to do so from an individual licensed to practice dentistry in the State of Colorado, or committing any other act in violation of Chapter 42, Article I, C.R.S.1963, as amended.'

We affirm.

An employee of the Merchant Police, pursuant to request by the State Board of Dental Examiners, took a broken upper denture to the Metropolitan Dental Laboratory, 1612 Court Place, Denver, and requested that it be repaired. The person behind the counter accepted it, estimated the cost of repair, the following day returned it in a repaired condition, and collected the cost of repair by accepting the personal check of the Merchant Policeman. Following this, a summons and complaint for injunction was served upon Van Kogul, pursuant to C.R.S.1963, 42--1--32(2), alleging an unlicensed practice of dentistry. C.R.S.1963, 42--1--4 defines practice of dentistry:

'(1) (a) Any person shall be deemed to be practicing dentistry who:

'(e) Furnishes, supplies, constructs, reproduces or Repairs any prosthetic denture, bridge, appliance, or any other structure to be worn in the human mouth, except on the written prescription of a duly licensed and practicing dentist, or professionally places such appliance or structure in the human mouth, or adjusts or attempts or professes to adjust the same, or Delivers the same to any person other than the dentist upon whose prescription the work was performed, except when aughorized in writing by the dentist or his agent; . . ..' (Emphasis added.)

Van Kogul, in his motion for new trial raised two points:

'1. The evidence was insufficient to support findings, conclusions, and decision of the Court in that the identity of the defendant was not shown to be that of the party whose conduct was complained of, and no evidence was introduced from which an inference could properly be made as to such identity.

'2. The Court committed an error of law in that the Court failed to rule as unconstitutional the statutory provisions prohibiting the repair (as opposed to designing the configuration) of a prosthetic denture without a dentist's prescription, such prohibition being an unreasonable exercise of the police power of the state.'

I. Identity

The issue here as to identity is limited to whether the particular individual who was present in the Metropolitan Dental Laboratory when the Merchant Policeman brought the dentures in was Van Kogul or an employee. So far as the injunction is concerned, it makes no difference. Van Kogul did not deny that he was the owner of or that he conducted the business in the name of Metropolitan Dental Laboratory. There is no question but that the work done by the person in charge of the laboratory was in violation of the Dental Practice Law. Van Kogul could not avoid the injunction even were it to appear that the person who violated the law was an agent.

II. Constitutionality

The real issue is whether the act is constitutional. That issue was decided by the court adversely to the defendant and we agree.

Van Kogul's argument on unconstitutionality focuses on Berry v. Summers, 76 Idaho 446, 283 P.2d 1093 (1955). In that case the Idaho Supreme Court struck down a 1953 amendment to the Idaho Code, § 54--901, which required all work on dental prosthetics to be pursuant to authorization of a duly licensed dentist. The court held that since prior statutes had recognized the existence of dental laboratory technicians and had permitted them to work on 'inert matter,' independently of dentists, the amendment--which required authorization by a dentist--deprived those technicians of 'vested rights.'

Following the first Berry case, the Idaho legislature passed a second amendment which forbade dental technicians from doing any act 'with respect to dental prosthetic appliances which requires or necessitates the presence, aid, assistance or cooperation of the person intended to be the user or wearer . . ..' The Idaho Supreme Court upheld this second amendment. See also Berry v. District Court, 91 Idaho 600, 428 P.2d 519 (1967) and Board of Dentistry v. Barnes, 94 Idaho 486, 491 P.2d 1258. Van Kogul would have us follow the lead of the Idaho Supreme Court and hold that Section 42--1--4 is unconstitutional insofar as it prohibits work on inert matter and does not involve fitting or adjusting.

In general, a statute will be presumed constitutional unless the contrary clearly appears. This is particularly true where the statute is designed to protect the health and safety of the public. United States Building & Loan Association v. McClelland, 95 Colo. 292, 36 P.2d 164, cert. denied 294 U.S. 706, 55 S.Ct. 351, 79 L.Ed. 1241 (1934). The legislature may devise Reasonable schemes for regulation of activities which affect the health and safety of the pulbic. The scope of judicial review is limited to a determination whether or not the particular regulation is reasonably related to such health and safety. Chenoweth v. State Board of Medical Examiners, 57 Colo. 74, 141 P. 132. C.R.S.1963, 42--1--1 declares the objects and purposes of Chapter 42, Article 1 to be as follows:

'The practice of dentistry in the state is Hereby declared to affect the public health, safety, and welfare and to be subject to regulation and control in the public interest. It is further declared To be a matter of public interest and concern that the dental profession merit and receive the confidence of the public and that only qualified dentists be permitted to practice dentistry in the state. All provisions of this article relating to the practice of dentistry and dental hygiene shall be liberally construed to carry out these objects and purposes.' (Emphasis added.)

The scheme to regulate prosthetics simply...