People ex rel. Illinois State Dental Soc. v. Sutker

• Court: Appellate Court of Illinois
• Writing for the Court: SULLIVAN
• Citation: People ex rel. Illinois State Dental Soc. v. Sutker, 395 N.E.2d 14, 76 Ill.App.3d 240, 32 Ill.Dec. 67 (Ill. App. 1979)
• Decision Date: 24 August 1979
• Docket Number: No. 79-370,79-370
• Parties: , 32 Ill.Dec. 67 PEOPLE of the State of Illinois, ex rel. ILLINOIS STATE DENTAL SOCIETY, an Illinois Corporation not for profit, et al., Plaintiffs-Appellees, v. Lester SUTKER, doing business as All-State Dental Laboratory, Defendants- Appellants.

Page 14

395 N.E.2d 14

76 Ill.App.3d 240, 32 Ill.Dec. 67

PEOPLE of the State of Illinois, ex rel. ILLINOIS STATE DENTAL SOCIETY, an Illinois Corporation not for profit, et al., Plaintiffs-Appellees, v. Lester SUTKER, doing business as All-State Dental Laboratory, Defendants- Appellants.

No. 79-370.

Appellate Court of Illinois, First District, Fifth Division.

Aug. 24, 1979.

Rehearing Denied Sept. 25, 1979.

Richard S. Kuhlman and Sheldon Gardner, Foss, Schuman & Drake, Chicago, for defendants-appellants.

Peterson, Ross, Schloerb & Seidel, Chicago, for plaintiffs-appellees; Russell M. Pelton, Jr. and Pat Chapin, Chicago, of counsel.

SULLIVAN, Presiding Justice:

Defendant, a dental technician engaged in the repair and duplication of dentures, appeals from the entry of summary judgment against him. In its order, the trial court (1) found that his business activities constituted the unlicensed practice of dentistry, in violation of "An Act to regulate the practice of dental surgery and dentistry * * * " (Ill.Rev.Stat.1977, ch. 111, par. 2202 Et seq.) (hereinafter Dental Practice Act); and (2) directed that a writ of injunction issue prohibiting him from continuing such activities. The issues presented are (a) whether defendant was actually practicing dentistry in Illinois and thus subject to the statute's proscriptions, where all his customers were from out of state; (b) whether the application of the Dental Practice Act against defendant exceeds the bounds of the state's police power; and (c) whether federal law has preempted the application of the Dental Practice Act against defendant.

Plaintiffs, in their amended complaint for injunction, alleged that defendant is a dental technician who is not licensed to practice dentistry in Illinois; that he is doing business as All-State Dental Laboratory (All-State) in Chicago; that in the course of such business he has represented himself as being able to test deficiencies of human teeth, advertised that he is able to treat such deficiencies, managed a place where dental operations are performed for compensation, and constructed, reproduced or repaired prosthetic dentures, bridges and other replacements for natural teeth. Additionally, it was alleged that such acts constitute the practice of dentistry under the Dental Practice Act; that defendant has solicited patronage for the practice of dentistry; and that he has practiced dentistry under the name of a corporation or company, in violation of the Dental Practice Act. Plaintiffs requested defendant and his employees be permanently enjoined from all such acts and that costs be awarded pursuant to section 17a of the Dental Practice Act. Ill.Rev.Stat.1977, ch. 111, par. 2244.

Defendant initially filed a motion to dismiss, which was denied, and plaintiffs then moved for summary judgment asserting that there were no material questions of fact and that they were entitled to judgment as a matter of law. In support thereof, they submitted portions of defendant's deposition in which he stated that he has never been a licensed dentist; that none of his employees are licensed dentists; that he placed an advertisement for All-State in the Old Farmer's Almanac offering to duplicate dentures by mail order; that All-State is a division of Morse Laboratories, which is owned by defendant and his wife; that All-State handles approximately 2,000 mail orders for dentures per year; and that orders are received from persons in other states but not from Illinois. Two supporting affidavits were also submitted by plaintiffs. The first was that of Mrs. Guy Klepsteen of Davenport, Iowa, stating that she sent a damaged dental plate to All-State with a letter requesting that it be repaired and a duplicate made; that she enclosed therewith a check for $84.00; and that she subsequently received in the mail from All-State the repaired plate and a duplicate. In the second affidavit, Guy Klepsteen, of Davenport, stated that he sent to All-State a damaged denture, which was provided by the Illinois State Dental Society, along with a letter requesting that the denture be repaired; that he enclosed a check for $34.95, and that he subsequently received from All-State the repaired denture and a check for $24.95 representing a refund for overpayment. Copies of the letters and cancelled checks which the affiants had sent to All-State were submitted with the motion, as well as other portions of defendant's deposition wherein he acknowledged the transaction with Guy Klepsteen.

Defendant then filed his answer to the complaint for injunction and a counterclaim. His answer included affirmative defenses as follows: (a) that since he made dentures only for out-of-state residents, he was not engaged in the practice of dentistry in the state of Illinois and thus was not subject to the statute; (b) that the state's police power cannot extend to regulate his business where his customers are all from out-of-state; and (c) that federal law has preempted the application of Illinois' Dental Practice Act against him.

The trial court entered an order granting plaintiffs' motion to dismiss defendant's affirmative defenses and counterclaim. The same order also granted summary judgment in favor of plaintiffs and enjoined defendant from the practices complained of. Subsequently, in another order, plaintiffs were awarded costs and attorney's fees in the amount of $3,310.95 under section 17a of the Dental Practice Act.

Defendant notices this appeal from those orders but, in his briefs here, does not raise any issue as to the dismissal of his affirmative defenses and counterclaim or as to the award of costs and attorney's fees. He questions only the propriety of the summary judgment.

OPINION

At the outset, we note that the record reveals essentially no dispute as to the facts. The affidavits and deposition excerpts presented on the motion for summary judgment establish that defendant was not a licensed dentist but was the owner and operator of All-State Dental Laboratories which, by means of an advertisement placed in the Old Farmer's Almanac, offered to duplicate dentures by mail order; that All-State handles approximately 2,000 such orders per year all from out-of-state residents and, in fact, repaired and duplicated dentures for Mr. and Mrs. Guy Klepsteen, of Iowa, for a fee. It would appear that the trial court found that these acts constituted the practice of dentistry under at least the following subsections of section 5 of the Dental Practice Act:

"A person practices dentistry, within the meaning of this Act:

(2) Who is a manager, proprietor, operator or conductor of a place where dental operations are performed; or

(3) Who performs dental operations of any kind gratuitously, or for a fee, gift, compensation or reward, paid or to be paid, either to himself or to another person or agency; or

(9) Who furnishes, supplies, constructs, reproduces or repairs, or offers to furnish, supply, construct, reproduce or repair prosthetic dentures (sometimes known as 'plates'), bridges, or other substitutes for natural teeth, to the user or prospective user thereof; * * *. " (Ill.Rev.Stat.1977, ch. 111, par. 2217.)

Defendant does not challenge the propriety of summary judgment on the basis that any material question of fact existed; rather, his contentions are legal in nature contending that, for various reasons, the proscriptions of the Dental Practice Act cannot apply to him.

He first argues that because all of his customers were out-of-state residence, he did not actually practice dentistry "within the state of Illinois" and thus was not in violation of the Dental Pracice Act. We disagree. Section 3 of the Dental Practice Act provides in relevant part:

"No person, unless previously registered or licensed to practice dentistry in this State at the time this Act shall become operative, Shall begin the practice of dentistry or dental surgery, or any branches thereof, without first applying for and obtaining a license for such purpose from the Department of Registration and Education, * * *." (Ill.Rev.Stat.1977, ch. 111, par. 2206 (emphasis added).)

Activities which constitute "the practice of dentistry" within the context of the Dental Practice Act are set forth in section 5 thereof (Ill.Rev.Stat.1977, ch. 111, par. 2217), and we note that none of these require that the recipient of the dental services be a resident or citizen of Illinois. We accordingly conclude that the fact that defendant's customers were not Illinois residents did not remove him from the proscriptions of the Dental Practice Act.

Defendant next maintains that the Dental Practice Act cannot be applied as against him within permissible constitutional bounds. As this court stated in Marketlines, Inc. v. Chamberlain (1965), 63 Ill.App.2d 274, 211 N.E.2d 399:

"(A) state, acting under its own police powers, can control and regulate the activities of those engaged in interstate commerce under the following conditions:

1. Where the regulation is a proper subject of the state's police power.

2. Where those to be controlled are 'doing business within the state.'

3. Where the regulation does not inflict an undue burden on interstate commerce.

4. Where the activity to be regulated has not been preempted by the Federal government." (63 Ill.App.2d at 279-80, 211 N.E.2d at 401-02.)

Defendant attacks the application of the Dental Practice Act on two of the four above grounds. First, he argues that applying the Act against him exceeds the permissible bounds of the state's police power. He points to the familiar definition of the police power as the authority possessed by the government to enact legislation for the benefit of the "public welfare, safety, and health of the citizens of the state, * * * the power * * * being founded on the duty of the state to protect its citizens" (16 C.J.S. Constitutional Law § 175 (1956)), and he takes the position that since all of his customers are out-of-state...