WEBSTER v. BOARD OF DENTAL EXAMINERS OF CALIFORNIA (1940)

This is an appeal from a judgment of the superior court of San Diego county denying appellant's petition for a writ of mandate directed to the respondent Board of Dental Examiners of California. The accusation concerns a newspaper advertisement published by the appellant in the San Diego Progressive Journal on June 10, 1938. It contained some of the following expressions:

“Dr. Webster offers his finest dental plates. Natural expression. The newest plate material in dentistry. This new material, although having the most delicately shaded natural gum color, will absolutely not change in color. Does not stain from smoking, alcohol or alkaloids, will not shrink or warp. Be sure your new dentures are made of this wonderful new material. Seeing Is Believing. Dr. Webster invites you to See and Talk to former patients who will be in his office all of this week to show you These Beautiful Plates. Only by Seeing them can you actually Appreciate their Natural Beauty. Note how they Mold the Features back to that Youthful appearance by adding charm and Beauty to the Profile. Talk to these patients and let them tell you they Eat Corn Off The Cob, Eat Steaks and Taste their foods as well as they ever did. A Natural Expression. These new dental plates are so ably designed that Dr. Webster challenges you to detect any false appearance in either the beautifully shaded porcelain teeth or artistically blended natural looking pink gums. Each tooth is set so that it appears to be growing there, yet these beautiful plates cost you very little money. *

“Dr. Webster's Immediate Restoration Plate Material Weighs Less Than 1 Oz.

“This beautiful plate material which forms the gums and the main body of Dr. Webster's Natural Appearing Dental Plates has a new natural Gum–Pink color which looks just like real healthy gums. Made from a secret formula, is a development of dental science which many plate wearers have been thankful for. Is particularly adaptable to difficult cases, since it weighs Less Than One Ounce, enabling Dr. Webster to fashion a plate which will fill out the cheeks, and fit properly without being heavy or bulky.

“Have your dental plates made ‘The Webster Way’ of immediate restoration. You need not be without your teeth for even one hour, or lose a single day's employment. Dr. Webster's immediate restoration dentures or plates are faithful reproductions of your own natural gums and teeth, in their true color, size and form. These plates are made to defy detection—so much so that members of your immediate family or most intimate friends need not know that you are wearing artificial teeth. Why suffer the embarrassment of being without your teeth even one hour.

“Is your mouth difficult to fit? No matter how little you pay for your dental plates at Dr. Webster's, an individual study of your case is always made. There is no limit to the care used in fitting difficult cases. Great care is taken not to cause wrinkles, drooping mouth, unnecessary lines, unnatural expression, etc., when making these new beautiful plates * ‘See Dr. Webster today’ and have your dental needs cared for the ‘Webster Way’.”

The charging part of count one of the accusation reads in part as follows: “That William L. Webster has been guilty of unprofessional conduct as the same is defined in the aforesaid Dental Practice Act of the State of California, in that *” he “* knowingly and intentionally caused to be published * in * a newspaper * an advertisement wherein *” he “* did advertise as a dentist, professional superiority or the performance of professional services in a superior manner *.”

Count two charges: “That William L. Webster * did advertise as a dentist and did make use of advertising statements of a character tending to deceive or mislead the public *”.

Count number three charges that he “did advertise to guarantee dental service or services performed or offered to be performed by him *.”

The accusation was presented to the Board of Dental Examiners pursuant to the provisions of the Dental Practice Act. Business and Professions Code, §§ 1670–1680, St.1937, p. 1247, Deering's General Laws, Act 2048, § 13, 14. Appellant filed a written answer by which he admitted that he caused the advertisement to be published at the time and place designated in the accusation. Testimony both oral and documentary was taken and the matter submitted to the Board of Dental Examiners for decision. The board, after considering the testimony, found the accused guilty on each of the three counts alleged and suspended the license of accused to practice dentistry in California for a period of six months on each count, the periods of suspension to run concurrently. The order provided that in case the accused should institute judicial proceedings the execution should be stayed pending final judicial judgment. Thereafter the accused sought a review of the order of said board by the superior court of San Diego county by way of petition for writ of mandate. The board filed an answer and return to the petition.

At the hearing before the superior court, the reporter's transcript of testimony taken before the board, together with the minutes of the board of all the proceedings had before that board were placed in evidence. The superior court decreed that the alternative writ of mandate should be discharged and that the peremptory writ of mandate should be denied. Findings of fact were expressly waived in open court by the parties. This appeal is taken by the petitioner from the judgment of the superior court.

The engrossed bill of exceptions sets forth the evidence considered by the board and the trial court, and includes the advertisement above set forth and extracts from the testimony of William L. Webster. He testified that by the use of the term “natural expression” he meant “the correct setting of the teeth according to the mold of the patient's face, the mold of your teeth, and the color, and the setting of the teeth to make it as natural appearing as possible”, i.e., “they are made so naturally that one gets a natural mechanical efficiency out of them * when eating”; that in using the words “the newest plate material in dentistry”, he meant acrylic resin, one of the newest materials; that he gained that information from the manufacturers; that “Dr. Webster's immediate restoration plate material” is not some special material which he had but material in general use by the dental profession in San Diego; that the “Webster way of immediate restoration” is his method of operating his business, a slogan which is not copyrighted; that he had no special way of immediate restoration but the technique used by the whole profession; that it consisted of taking “the impression before the teeth are all taken out, and the plate inserted immediately after the teeth are extracted”; that the secret “formula” referred to was not a secret formula of his own but of the manufacturer. Referring to the words “newest plate material in dentistry” and that it will not change in color, nor will it stain from smoke, alcohol or alkaloids, nor will it shrink or warp, he testified that the contents of the ad were based upon his experience and testing of the materials in his own laboratory by the manufacturers and that he did not intend to convey the impression that he was the only dentist using the new material.

The only contention presented is that there was not sufficient evidence before the respondent board or the superior court upon which petitioner could be legally found guilty of unprofessional conduct as defined in subdivisions 11, 12, and 17, section 1680, Dental Practice Act of California, St.1937, p. 1248. These subdivisions provide in general:

11. “The making use of any advertising statements of a character tending to deceive or mislead the public.”

12. “The advertising of professional superiority or the performance of professional services in a superior manner.”

17. “The advertising to guarantee any dental service *.”

The respondent board is an administrative or regulatory board created under and by virtue of the Dental Practice Act of California, as incorporated in the Business and Professions Code of this state. Under this act, the respondent board is empowered to issue licenses to dentists privileging them to practice dentistry in California and, after notice upon hearing determining a dentist to be guilty of certain enumerated acts or omissions, to suspend or revoke his license. The question therefore presented is the application of the statute to the evidence herein presented.

Appellant argues that the proceedings are “quasi criminal” in nature and impose a strict construction of the law and evidence herein involved in favor of petitioner, citing Cavassa v. Off, 206 Cal. 307, 314, 274 P. 523; Bley v. Board of Dental Examiners, 120 Cal.App. 426, 431, 7 P.2d 1053; Randall v. Board of Medical Examiners, 110 Cal.App. 61, 64, 293 P. 790; and Messner v. Board of Dental Examiners, 87 Cal.App. 199, 205, 262 P. 58.

From the above-cited cases it appears that such proceedings have been held to be in the nature of a criminal trial, in which all intendments are in favor of the accused and the evidence is to be construed with a degree of strictness commensurate with the severity of the penalty imposed. No one can be held to have violated the provisions of the Dental Practice Act unless his acts come within both the letter and the spirit of the law.

We are not unmindful of the fact that the question involved is one of ethics, upon which professional men naturally have honest differences of opinion. It is not for us to determine the ethical question. It is solely for us to determine whether there has been a violation of the law. In 1935 the California legislature joined other states in a movement toward a transition in the field of dentistry to a more dignified and ethical profession, and accordingly passed legislation on the subject relating to dental advertisements. The law, however, does not prohibit advertising entirely, as is the case in some states, but endeavors to set up some standard to regulate a limited form of advertising. The constitutionality of this form of legislation has been upheld in Semler v. Oregon State Board of Dental Examiners, 294 U.S. 608, 55 S.Ct. 570, 79 L.Ed. 1086. See, also, Semler v. Oregon State Board of Dental Examiners, 148 Or. 50, 34 P.2d 311. It appears from the history of the legislation in the various states regulating the conduct of practitioners in the learned professions of law, medicine and dentistry, that there is a marked tendency in recent years to enact more stringent regulations so that the ignorant, gullible members of the public be protected from quacks and charlatans, who spurn the ethics of their profession and thrive on ornate methods of advertising. However, it has been firmly established that a statutory proceeding for the revocation of a license is in the nature of a criminal trial in which all intendments are in favor of the accused. In the absence of evidence that there has been any violation of the law, the presumption is that the law has been obeyed. Messner v. Board of Dental Examiners, supra.

We will not endeavor to set forth and analyze each statement in the advertisement above mentioned separately. Some of the statements, when separately stated and technically construed, together with the inferences that may be drawn therefrom, may border on a violation of the act. It must be remembered that the truth of the statements set forth in the advertisement are not challenged. Therefore, it cannot be rightfully maintained (1) that they were of a character tending to deceive or mislead the public, or (2) that they advertised a professional superiority or the performance of professional services in a superior manner, or (3) that the advertisement was to guarantee any dental service. We do not wish to condone or approve any endeavor to circumvent the spirit and intent of the law and open the field to quacks and charlatans who spurn the ethics of their profession and thrive on ornate methods of advertising. However, in view of the fact that the proceedings are of a criminal nature, and that a license to practice dentistry is a property right of which the holder cannot be arbitrarily deprived, we feel impelled to hold that the respondent has not met the burden imposed upon it to establish by clear and convincing evidence appellant's guilt, and before his license to practice dentistry can be revoked or suspended it is essentially necessary so to do. We are unprepared to approve and sustain an order suspending a license for the publication of the article mentioned. Although our attention has not been called to any case where the facts are synonymous to the facts in the instant action, the publication and the reasoning expressed in Barron v. Board of Dental Examiners, 109 Cal.App. 382, 293 P. 144, are pertinent.

The judgment of the trial court is reversed, with directions to enter an order that respondent reinstate appellant's license as prayed for in his petition.

GRIFFIN, Justice.

We concur: BARNARD, P.J.; MARKS, J.