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Law enforcement against the unlicensed practitioner: injunctive remedy, so-called entrapment and licensure and law enforcement
reports of councils and bureaus
L a w e n fo r c e m e n t a g a in s t th e u n lic e n s e d
p r a c titio n e r :
in ju n c tiv e r e m e d y , s o -c a lle d lic e n s u r e a n d
en tra p m en t a n d
la w e n fo r c e m e n t
Harvey Sarner,* LLB C O U N C IL O N D E N T A L TRAD E A N D LA B O R A T O R Y R E L A T IO N S
Recent decisions by Iowa, Florida and Oklahoma courts are of some special in terest in enforcing the law against persons who practice dentistry without a license.
IN J U N C T IV E R E M E D Y
In December, 1963 the Supreme Court of Iowa1 upheld a fine of $3,500 imposed against a dental laboratory technician found to be in contempt of an injunction against the unlicensed practice of den tistry. The dental technician, Donald J. Clark, had been enjoined in 1961 by an Iowa district court from making or re pairing dentures, either full or partial,
and selling the same directly to the pa tient or person who intended to wear or use such appliance. Clark appealed the district court’s decision and in 1961 the Iowa Supreme Court2 upheld the injunc tion restraining Clark from dealing di rectly with the public. Some two years after Clark was en joined from further unlicensed practice of dentistry, he was again brought before an Iowa court. This time the specific charge was contempt of court by violating the injunction. After a bench trial he was found guilty of contempt on seven sepa rate occasions and fined $500 for each contempt, a total of $3,500. Clark again appealed to the Iowa Supreme Court and
REPORTS OF C O U N C IL S A N D BUREAUS
that court upheld the $3,500 fine. The Clark case goes far beyond the impor tance of one illegal operator being pun ished for his law violation for it illustrates a number of legal principles which, if fol lowed, can be used as successfully in other states as they have been in Iowa. The Iowa Dental Practice Act permits the use of an injunctive remedy: Any person engaging in any business or in the practice of any profession for which a license is required of this title without such license may be restrained by permanent injunction. The Iowa Dental Practice Act does not make provision for a fine for the unli censed practice of dentistry. Clark’s fine of $3,500 was for violation of a court or der restraining him from practicing den tistry. This distinction between the acts of “unlicensed practice” and “contempt of court” may apear at first glance to be meaningless and legalistic; however, this distinction may be the difference between the $3,500 fine imposed against Clark and the small fines imposed in other jurisdic tions for the same offense. In many states where the dental prac tice acts provide for severe fines for unli censed practice, there have been cases that resulted in minimum fines or even suspended sentences. It has been disheart ening in some jurisdictions to see con victed illegal operators escape with small fines that easily could be made up on the next “customer” and could be considered another cost of doing business. The reluc tance of some courts to impose substantial fines in cases of violation of dental laws has often been attributed to judicial dis interest or some failure on the part of the courts to appreciate the dangers to public health presented by the illegal op erator. When Clark again appeared before the Iowa court, he was charged with seven counts of violating a court order. It is likely that considerations of dentistry and dental health were not the major con cern of the judge considering the contempt charges against Clark. Standing
.V O L U M E 69, DECEMBER 1964 • 145/817
before him for sentencing, after a hearing and a finding of guilt, was a man who knowingly had violated a court order on at least seven different occasions. At this point, there was something more than dentistry involved; this was an individual who had shown an anarchistic disregard for the courts of the State of Iowa. The substantial fine against Clark could have been expected under these circumstances. When the Iowa Supreme Court reviewed the amount of the fine, the court stated: The record discloses seven willful con tempts. No excuse was offered. Petitioner was well aware of the extent of the restraint. The sentence imposed was well within the discretion of the trial court. The fine of $500 on each count was the maximum fine that could be imposed under Iowa law, although the court could have imposed a jail sentence along with the fine. An interesting aside is that under Iowa law, and under the laws of perhaps a ma jority of the states, a trial in a contempt case is before the judge sitting as the trier of fact. Juries are usually not used in con tempt cases. It could be argued that the use of the “injunctive remedy” as a means of en forcing the dental laws gives the illegal operator one free chance at violating the law. Perhaps it does. But this is preferable to those instances in which the same vio lator is constantly brought before the courts and constantly escapes with small fines. Another approach to the law enforce ment problem has been through establish ing heavy fines for first offenses and then increased fines and jail sentences for re peated offenses. The problem here is that heavy minimum fines and jail sentences have in the past resulted in findings of innocence and suspended sentences. Ju ries have proved their general apathy to the problem of the illegal operator, and the trial does not present an adequate op portunity for the prosecutor to educate them amply to the problems of dental health. A jury called on to find a man
146/818 • THE J O U R N A L O F THE A M E R IC A N DENTAL A S S O C IA T IO N
innocent or guilty of violating a dental law may take into consideration the fact that a finding of guilt will result in a substantial fine or jail sentence. It could be argued that the jury would be more apt to return a finding of guilty when the defendant “merely” will be enjoined from further unlicensed practice. Prior and subsequent to the final deci sion in the Clark case, the Iowa district courts of Polk, Woodbury, Scott and Webster counties have issued injunc tions against Nicholas LaDoal,3 Robert Crosier,4 Janet H. Crosier,4 Howard F. Wylie,4- Curtis W. Schultz,4 A. H. Cun ningham,5 Howard Osborn6 and Joseph Niggel,7 all dental laboratory technicians, all found to have been constructing den tures directly for the public. In each in stance, the Iowa District Court ordered the defendants to pay all court costs in volved in the issuance of the injunction against further unlicensed practice. It should be interesting to see if the decision in the Clark case has been suffi cient to alert these technicians to the fact that illegal practice can be unprofitable in Iowa. Since the Clark case, the Iowa Supreme Court8 has upheld a sentence imposed upon George Sarich for violating an injunction against unlicensed practice. Sarich was sentenced to serve a 60-day sentence, which had previously been sus pended, and pay a $500 fine; he also re ceived a six-month suspended sentence. The Iowa experience has demonstrated that the injunctive remedy can become the single most important weapon against the violators of the dental laws. It is sug gested that constituent dental societies review their dental practice acts and other applicable state laws to determine whether their laws will permit use of this mechanism for law enforcement. It is rec ommended that constituent societies seek appropriate amendments when necessary to permit the use of the injunctive remedy and that attention be given to this mechanism as a way to increase en forcement of the laws which prohibit un licensed persons from practicing dentistry.
S O -C A L L E D E N T R A P M E N T
It is readily admitted that one of the greatest difficulties in enforcing the law against persons who practice dentistry without a license is the scarcity of wit nesses willing to testify that their dentures were constructed by an unlicensed per son. The best witness in a prosecution is always the customer of the dental labora tory who has since learned the folly of having his denture prepared by someone other than a dentist. One method of alleviating this scarcity of witnesses is for the law-enforcing au thorities to send an investigator to a sus pected dental laboratory with a request that the laboratory technician perform some specific act which constitutes the practice of dentistry. The danger in using such investigator-witnesses is that the courts will consider the request for serv ice to be an “entrapment” and not permit the introduction into evidence of the in vestigator’s testimony. In 1958, the Crimi nal Court of Appeals of Oklahoma9 con sidered a case in which an individual convicted of practicing dentistry without a license appealed his conviction on the grounds that he had been entrapped. It was undisputed that an attorney for the state dental association hired an investi gator for the purpose of contracting with the defendant relative to procuring from him a partial denture. The court said that the evidence showed that the inves tigator afforded the defendant an oppor tunity to violate the dental practice act but that the investigator did not have to use persuasion or inducements to obtain dental work. The crucial fact, in the opinion of the court, is that the intent to violate the dental practice act originated in the mind of the defendant. Under these circumstances, the court found there was no entrapment. In a recent decision, the District Court of Appeals of Florida10 upheld a convic tion of a dental laboratory operator for engaging in the unlicensed practice of dentistry and rejected the contention that
REPORTS O F C O U N C IL S A N D BUREAUS
he had been entrapped. Two investigators were hired by the dental society to inves tigate charges that the dental laboratory operator was dealing directly with the public. One investigator asked the de fendant to make an upper denture, and the defendant agreed. The defendant took an impression and matched the teeth in the investigator’s lower denture with those he intended to use for the upper denture. The investigator paid $40 cash and promised to mail a check for the balance of $20.48. The lower court found that there was no form of enticement used by the investigators as an induce ment to perform the dental acts. The lower court also found that the com plaints registered by dentists and other persons alleging that the defendant was engaged in unlawful activities constituted a legitimate basis for the investigation conducted and financed by the unlawful practice committee of the state dental as sociation. The court found that the action of the investigators merely provided an opportunity for appellant to infringe ille gally on the field of dentistry and that the doctrine of entrapment was not present in this case. The appellate court rejected the contention that the prosecution could not rely solely on testimony of paid wit nesses. The appellate court placed great weight on the fact that the dental society had probable cause to believe the de fendant was engaged in an unlawful ac tivity and that this “probable cause” is something more than a mere suspicion. The Florida and Oklahoma cases ap prove the use of paid investigators as witnesses against illegal operators. But precautions should be taken to insure that the investigators merely will give the un lawful operator an opportunity to per form an unlawful act and not entice him into the unlawful act. Dental societies and boards of dental examiners, experi encing difficulties in obtaining witnesses against illegal operators should no longer fear using paid investigators. Consulta tion should be had with an attorney be fore sending an investigator into a dental
.V O L U M E 69, DECEMBER 1964 • 147/819
laboratory to ascertain the applicable state laws. Caution should be exercised in restricting the use of paid investigators in instances in which there is probable cause to suspect that the dental laboratory operator is dealing directly with the public. L IC E N S U R E A N D L A W E N F O R C E M E N T
The proponents of licensure or registra tion of dental laboratories or technicians often claim that licensure or registration will assist in law enforcement and that the aid in law enforcement outweighs the potential risks inherent in licensing. Two recent appellate court decisions, one in Florida and one in Oklahoma, disprove the contention that licensing dental labo ratories and technicians improves law en forcement. The Florida law provides a maximum fine of $1,000 and 12 months in jail for operating an unregistered dental labora tory. The Florida law also provides that the Board of Dental Examiners may re voke the registration of any dental labora tory operator who violates the dental practice act. In effect, a dental laboratory operator who deals directly with the pub lic could be prohibited from operating a dental laboratory in Florida regardless of whether he continues to deal directly with the public. If the dental laboratory oper ator continues an illegal practice after his registration is revoked, the recourse against him is to charge him with the misdemeanor of operating a dental labo ratory without a registration permit (maximum fine of $1,000 and 12 months in jail) or to charge him with engaging in the unlicensed practice of dentistry, a felony with a maximum fine of $1,000 and a maximum jail sentence of two years. It is submitted that the registration of the dental laboratory under Florida law is totally meaningless as a means of con trolling the unlicensed practice of den tistry since it adds an extra step in law enforcement and merely provides an al
148/820 • T H E J O U R N A L O F T H E A M E R IC A N DENTAL A S S O C IA T IO N
ternative route for prosecution, which is more involved and which presents a lesser penalty. The revocation of a registration permit is a penalty that could have the opposite effect of that intended. The Courts are always reluctant to deprive a man of his livelihood. There is a sub stantial difference between punishment of a man by a fine or jail sentence and a blanket prohibition against his ever again practicing his trade. The purpose of en forcing the dental laws is to insure that unlicensed persons will not deal directly with the public. It would be difficult to show that a once-convicted, illegal oper ator who has served his sentence is in capable of conducting a proper dental laboratory business. The best control over the man who has been convicted once is a permanent injunction prohibiting him from further unlicensed practice. In a recent prosecution against Coy Mitchell, d /b /a Coy Mitchell Dental Laboratory,10 the Florida Board of Den tal Examiners brought an action based on the alleged violation of the law that prohibits anyone other than a licensed dentist from dealing directly with the public. The injunction was granted and the appeal denied. Mitchell possessed a license to operate a dental laboratory in Florida, and the Board did not seek to revoke this license. It is submitted that the Florida board used good judgment in pursuing the prosecution under the unli censed practice route rather than by seek ing to revoke the license to operate a dental laboratory. If Mitchell continues to deal directly with the public, he risks a contempt charge for violating the in junction. If the board had revoked Mitchell’s license to operate a dental la boratory, the recourse, if he continued in business, would be to seek the criminal penalty for operating without a labora tory license. The board could then ask for an injunction against further opera tion of a dental laboratory without a li cense. This injunction, rather than the criminal penalty, seems to be a more reasonable way to proceed in Florida
since the board in the Mitchell case went for an injunction instead of the Criminal Penalty for practicing dentistry without a license. In summary, if the Florida board had gone the route of revoking the business license, it would have created additional steps in the prosecution without any hope of gaining a greater deterrent to illegal dentistry than the injunction that was granted in the Mitchell case. This should adequately demonstrate to the proponents of dental laboratory licensure that licen sure is not needed for law enforcement. Another landmark in licensing as a means of law enforcement is the recent decision of the Supreme Court of Okla homa in Board of Governors v. Crouch and Rushing v. Board of Governors (joined in one decision).11 Crouch and Rushing were registered under the Okla homa law that required a permit for the operation of a dental laboratory. In sepa rate actions, the Board of Governors of Registered Dentists of Oklahoma sought to enjoin Crouch and Rushing from fur ther unlicensed practice of dentistry. Both technicians claimed that the Board could not institute the injunctive action because they were licensed dental labo ratory operators and that the board’s ac tion must be limited to proceedings to revoke their license. In effect, the two technicians argued that the laboratory li censing law prevents the granting of an injunction against unlawful practice, and one technician was successful in the lower court. The Oklahoma Supreme Court re jected the contentions of the two techni cians and stated: Neither the dental laboratory operator’s necessity for having a permit in order to be in compliance with the Dental Act, nor the penalties provided in said law for its viola tion, furnish complete or adequate means for its enforcement in all circumstances. The court quoted from its own decision in a case involving the practice of veteri nary medicine where it cited a Kentucky
REPORTS O F C O U N C IL S A N D BUREAUS . . . V O LU M E 69, DECEMBER 1964 • 149/821
dental laboratory case in which it was pointed out that the penalties for oper ating a dental laboratory illegally were so slight that the continued costs for paying the fine for violating the law are incon sequential and “perhaps many times the amount of the penalty could be col lected from ignorant and confiding patrons. . . The Oklahoma court has dramatically shown that the licensing of dental labo ratories or dental laboratory technicians constitutes an interference with law en forcement and is anything except a means for enforcing law against those in dividuals who practice dentistry without a license. If the proponents of laboratory licensure truly support this measure, be lieving it to be a potential aid in law
enforcement, the Florida and Oklahoma courts have shown them the folly of their position. *Secretary, Council on Dental Trade and Laboratory Relations. 1. Clark v. Dist. Ct. of Iowa, I25 N.W. 2d 264 (I963). 2. State ex. rel. Zimmerer v. Clark. 252 Iowa 578, 107 N.W., 2d 726. 3. State ex. rel. Zimmerer v. LaDoal, Iowa Dist. Ct., Polk County, equity no. 67500. 4. State ex. rel. Zimmerer v. R. L. Crosier, J. H. Crosier, H. F. Wylie, C. W . Schultz, Iowa Dist. Ct., Woodbury County, equity no. 83846. 5. State ex. rel. Zimmerer v. Cunningham, Iowa Dist. Ct., Webster County, equity no. 37257. 6. State ex. rel. Zimmerer v. Osborn, Iowa Dist. Ct., Scott County, equity no. 46989. 7. State ex. rel. Zimmerer v. Niggel, Iowa Dist. Ct., Webster County, Civil no. 37,545. 8. Sarich v. Dist. Ct. of Iowa, in the Supreme Court of Iowa, filed April 8, I964. 9. Crosbie v. State of Oklahoma, 330 P.2d 602. 10. Mitchell v. Gillespie, I64 SO,2d 867 (Fla.) (I964). 11. Board of Governors of the Registered Dentists of Oklahoma v. Crouch, Rushing v. Board of Governors, 39! P.2d 796, (1964).
L a w e n fo r c e m e n t a g a in s t th e u n lic e n s e d
p r a c titio n e r :
in ju n c tiv e r e m e d y , s o -c a lle d lic e n s u r e a n d
en tra p m en t a n d
la w e n fo r c e m e n t
Harvey Sarner,* LLB C O U N C IL O N D E N T A L TRAD E A N D LA B O R A T O R Y R E L A T IO N S
Recent decisions by Iowa, Florida and Oklahoma courts are of some special in terest in enforcing the law against persons who practice dentistry without a license.
IN J U N C T IV E R E M E D Y
In December, 1963 the Supreme Court of Iowa1 upheld a fine of $3,500 imposed against a dental laboratory technician found to be in contempt of an injunction against the unlicensed practice of den tistry. The dental technician, Donald J. Clark, had been enjoined in 1961 by an Iowa district court from making or re pairing dentures, either full or partial,
and selling the same directly to the pa tient or person who intended to wear or use such appliance. Clark appealed the district court’s decision and in 1961 the Iowa Supreme Court2 upheld the injunc tion restraining Clark from dealing di rectly with the public. Some two years after Clark was en joined from further unlicensed practice of dentistry, he was again brought before an Iowa court. This time the specific charge was contempt of court by violating the injunction. After a bench trial he was found guilty of contempt on seven sepa rate occasions and fined $500 for each contempt, a total of $3,500. Clark again appealed to the Iowa Supreme Court and
REPORTS OF C O U N C IL S A N D BUREAUS
that court upheld the $3,500 fine. The Clark case goes far beyond the impor tance of one illegal operator being pun ished for his law violation for it illustrates a number of legal principles which, if fol lowed, can be used as successfully in other states as they have been in Iowa. The Iowa Dental Practice Act permits the use of an injunctive remedy: Any person engaging in any business or in the practice of any profession for which a license is required of this title without such license may be restrained by permanent injunction. The Iowa Dental Practice Act does not make provision for a fine for the unli censed practice of dentistry. Clark’s fine of $3,500 was for violation of a court or der restraining him from practicing den tistry. This distinction between the acts of “unlicensed practice” and “contempt of court” may apear at first glance to be meaningless and legalistic; however, this distinction may be the difference between the $3,500 fine imposed against Clark and the small fines imposed in other jurisdic tions for the same offense. In many states where the dental prac tice acts provide for severe fines for unli censed practice, there have been cases that resulted in minimum fines or even suspended sentences. It has been disheart ening in some jurisdictions to see con victed illegal operators escape with small fines that easily could be made up on the next “customer” and could be considered another cost of doing business. The reluc tance of some courts to impose substantial fines in cases of violation of dental laws has often been attributed to judicial dis interest or some failure on the part of the courts to appreciate the dangers to public health presented by the illegal op erator. When Clark again appeared before the Iowa court, he was charged with seven counts of violating a court order. It is likely that considerations of dentistry and dental health were not the major con cern of the judge considering the contempt charges against Clark. Standing
.V O L U M E 69, DECEMBER 1964 • 145/817
before him for sentencing, after a hearing and a finding of guilt, was a man who knowingly had violated a court order on at least seven different occasions. At this point, there was something more than dentistry involved; this was an individual who had shown an anarchistic disregard for the courts of the State of Iowa. The substantial fine against Clark could have been expected under these circumstances. When the Iowa Supreme Court reviewed the amount of the fine, the court stated: The record discloses seven willful con tempts. No excuse was offered. Petitioner was well aware of the extent of the restraint. The sentence imposed was well within the discretion of the trial court. The fine of $500 on each count was the maximum fine that could be imposed under Iowa law, although the court could have imposed a jail sentence along with the fine. An interesting aside is that under Iowa law, and under the laws of perhaps a ma jority of the states, a trial in a contempt case is before the judge sitting as the trier of fact. Juries are usually not used in con tempt cases. It could be argued that the use of the “injunctive remedy” as a means of en forcing the dental laws gives the illegal operator one free chance at violating the law. Perhaps it does. But this is preferable to those instances in which the same vio lator is constantly brought before the courts and constantly escapes with small fines. Another approach to the law enforce ment problem has been through establish ing heavy fines for first offenses and then increased fines and jail sentences for re peated offenses. The problem here is that heavy minimum fines and jail sentences have in the past resulted in findings of innocence and suspended sentences. Ju ries have proved their general apathy to the problem of the illegal operator, and the trial does not present an adequate op portunity for the prosecutor to educate them amply to the problems of dental health. A jury called on to find a man
146/818 • THE J O U R N A L O F THE A M E R IC A N DENTAL A S S O C IA T IO N
innocent or guilty of violating a dental law may take into consideration the fact that a finding of guilt will result in a substantial fine or jail sentence. It could be argued that the jury would be more apt to return a finding of guilty when the defendant “merely” will be enjoined from further unlicensed practice. Prior and subsequent to the final deci sion in the Clark case, the Iowa district courts of Polk, Woodbury, Scott and Webster counties have issued injunc tions against Nicholas LaDoal,3 Robert Crosier,4 Janet H. Crosier,4 Howard F. Wylie,4- Curtis W. Schultz,4 A. H. Cun ningham,5 Howard Osborn6 and Joseph Niggel,7 all dental laboratory technicians, all found to have been constructing den tures directly for the public. In each in stance, the Iowa District Court ordered the defendants to pay all court costs in volved in the issuance of the injunction against further unlicensed practice. It should be interesting to see if the decision in the Clark case has been suffi cient to alert these technicians to the fact that illegal practice can be unprofitable in Iowa. Since the Clark case, the Iowa Supreme Court8 has upheld a sentence imposed upon George Sarich for violating an injunction against unlicensed practice. Sarich was sentenced to serve a 60-day sentence, which had previously been sus pended, and pay a $500 fine; he also re ceived a six-month suspended sentence. The Iowa experience has demonstrated that the injunctive remedy can become the single most important weapon against the violators of the dental laws. It is sug gested that constituent dental societies review their dental practice acts and other applicable state laws to determine whether their laws will permit use of this mechanism for law enforcement. It is rec ommended that constituent societies seek appropriate amendments when necessary to permit the use of the injunctive remedy and that attention be given to this mechanism as a way to increase en forcement of the laws which prohibit un licensed persons from practicing dentistry.
S O -C A L L E D E N T R A P M E N T
It is readily admitted that one of the greatest difficulties in enforcing the law against persons who practice dentistry without a license is the scarcity of wit nesses willing to testify that their dentures were constructed by an unlicensed per son. The best witness in a prosecution is always the customer of the dental labora tory who has since learned the folly of having his denture prepared by someone other than a dentist. One method of alleviating this scarcity of witnesses is for the law-enforcing au thorities to send an investigator to a sus pected dental laboratory with a request that the laboratory technician perform some specific act which constitutes the practice of dentistry. The danger in using such investigator-witnesses is that the courts will consider the request for serv ice to be an “entrapment” and not permit the introduction into evidence of the in vestigator’s testimony. In 1958, the Crimi nal Court of Appeals of Oklahoma9 con sidered a case in which an individual convicted of practicing dentistry without a license appealed his conviction on the grounds that he had been entrapped. It was undisputed that an attorney for the state dental association hired an investi gator for the purpose of contracting with the defendant relative to procuring from him a partial denture. The court said that the evidence showed that the inves tigator afforded the defendant an oppor tunity to violate the dental practice act but that the investigator did not have to use persuasion or inducements to obtain dental work. The crucial fact, in the opinion of the court, is that the intent to violate the dental practice act originated in the mind of the defendant. Under these circumstances, the court found there was no entrapment. In a recent decision, the District Court of Appeals of Florida10 upheld a convic tion of a dental laboratory operator for engaging in the unlicensed practice of dentistry and rejected the contention that
REPORTS O F C O U N C IL S A N D BUREAUS
he had been entrapped. Two investigators were hired by the dental society to inves tigate charges that the dental laboratory operator was dealing directly with the public. One investigator asked the de fendant to make an upper denture, and the defendant agreed. The defendant took an impression and matched the teeth in the investigator’s lower denture with those he intended to use for the upper denture. The investigator paid $40 cash and promised to mail a check for the balance of $20.48. The lower court found that there was no form of enticement used by the investigators as an induce ment to perform the dental acts. The lower court also found that the com plaints registered by dentists and other persons alleging that the defendant was engaged in unlawful activities constituted a legitimate basis for the investigation conducted and financed by the unlawful practice committee of the state dental as sociation. The court found that the action of the investigators merely provided an opportunity for appellant to infringe ille gally on the field of dentistry and that the doctrine of entrapment was not present in this case. The appellate court rejected the contention that the prosecution could not rely solely on testimony of paid wit nesses. The appellate court placed great weight on the fact that the dental society had probable cause to believe the de fendant was engaged in an unlawful ac tivity and that this “probable cause” is something more than a mere suspicion. The Florida and Oklahoma cases ap prove the use of paid investigators as witnesses against illegal operators. But precautions should be taken to insure that the investigators merely will give the un lawful operator an opportunity to per form an unlawful act and not entice him into the unlawful act. Dental societies and boards of dental examiners, experi encing difficulties in obtaining witnesses against illegal operators should no longer fear using paid investigators. Consulta tion should be had with an attorney be fore sending an investigator into a dental
.V O L U M E 69, DECEMBER 1964 • 147/819
laboratory to ascertain the applicable state laws. Caution should be exercised in restricting the use of paid investigators in instances in which there is probable cause to suspect that the dental laboratory operator is dealing directly with the public. L IC E N S U R E A N D L A W E N F O R C E M E N T
The proponents of licensure or registra tion of dental laboratories or technicians often claim that licensure or registration will assist in law enforcement and that the aid in law enforcement outweighs the potential risks inherent in licensing. Two recent appellate court decisions, one in Florida and one in Oklahoma, disprove the contention that licensing dental labo ratories and technicians improves law en forcement. The Florida law provides a maximum fine of $1,000 and 12 months in jail for operating an unregistered dental labora tory. The Florida law also provides that the Board of Dental Examiners may re voke the registration of any dental labora tory operator who violates the dental practice act. In effect, a dental laboratory operator who deals directly with the pub lic could be prohibited from operating a dental laboratory in Florida regardless of whether he continues to deal directly with the public. If the dental laboratory oper ator continues an illegal practice after his registration is revoked, the recourse against him is to charge him with the misdemeanor of operating a dental labo ratory without a registration permit (maximum fine of $1,000 and 12 months in jail) or to charge him with engaging in the unlicensed practice of dentistry, a felony with a maximum fine of $1,000 and a maximum jail sentence of two years. It is submitted that the registration of the dental laboratory under Florida law is totally meaningless as a means of con trolling the unlicensed practice of den tistry since it adds an extra step in law enforcement and merely provides an al
148/820 • T H E J O U R N A L O F T H E A M E R IC A N DENTAL A S S O C IA T IO N
ternative route for prosecution, which is more involved and which presents a lesser penalty. The revocation of a registration permit is a penalty that could have the opposite effect of that intended. The Courts are always reluctant to deprive a man of his livelihood. There is a sub stantial difference between punishment of a man by a fine or jail sentence and a blanket prohibition against his ever again practicing his trade. The purpose of en forcing the dental laws is to insure that unlicensed persons will not deal directly with the public. It would be difficult to show that a once-convicted, illegal oper ator who has served his sentence is in capable of conducting a proper dental laboratory business. The best control over the man who has been convicted once is a permanent injunction prohibiting him from further unlicensed practice. In a recent prosecution against Coy Mitchell, d /b /a Coy Mitchell Dental Laboratory,10 the Florida Board of Den tal Examiners brought an action based on the alleged violation of the law that prohibits anyone other than a licensed dentist from dealing directly with the public. The injunction was granted and the appeal denied. Mitchell possessed a license to operate a dental laboratory in Florida, and the Board did not seek to revoke this license. It is submitted that the Florida board used good judgment in pursuing the prosecution under the unli censed practice route rather than by seek ing to revoke the license to operate a dental laboratory. If Mitchell continues to deal directly with the public, he risks a contempt charge for violating the in junction. If the board had revoked Mitchell’s license to operate a dental la boratory, the recourse, if he continued in business, would be to seek the criminal penalty for operating without a labora tory license. The board could then ask for an injunction against further opera tion of a dental laboratory without a li cense. This injunction, rather than the criminal penalty, seems to be a more reasonable way to proceed in Florida
since the board in the Mitchell case went for an injunction instead of the Criminal Penalty for practicing dentistry without a license. In summary, if the Florida board had gone the route of revoking the business license, it would have created additional steps in the prosecution without any hope of gaining a greater deterrent to illegal dentistry than the injunction that was granted in the Mitchell case. This should adequately demonstrate to the proponents of dental laboratory licensure that licen sure is not needed for law enforcement. Another landmark in licensing as a means of law enforcement is the recent decision of the Supreme Court of Okla homa in Board of Governors v. Crouch and Rushing v. Board of Governors (joined in one decision).11 Crouch and Rushing were registered under the Okla homa law that required a permit for the operation of a dental laboratory. In sepa rate actions, the Board of Governors of Registered Dentists of Oklahoma sought to enjoin Crouch and Rushing from fur ther unlicensed practice of dentistry. Both technicians claimed that the Board could not institute the injunctive action because they were licensed dental labo ratory operators and that the board’s ac tion must be limited to proceedings to revoke their license. In effect, the two technicians argued that the laboratory li censing law prevents the granting of an injunction against unlawful practice, and one technician was successful in the lower court. The Oklahoma Supreme Court re jected the contentions of the two techni cians and stated: Neither the dental laboratory operator’s necessity for having a permit in order to be in compliance with the Dental Act, nor the penalties provided in said law for its viola tion, furnish complete or adequate means for its enforcement in all circumstances. The court quoted from its own decision in a case involving the practice of veteri nary medicine where it cited a Kentucky
REPORTS O F C O U N C IL S A N D BUREAUS . . . V O LU M E 69, DECEMBER 1964 • 149/821
dental laboratory case in which it was pointed out that the penalties for oper ating a dental laboratory illegally were so slight that the continued costs for paying the fine for violating the law are incon sequential and “perhaps many times the amount of the penalty could be col lected from ignorant and confiding patrons. . . The Oklahoma court has dramatically shown that the licensing of dental labo ratories or dental laboratory technicians constitutes an interference with law en forcement and is anything except a means for enforcing law against those in dividuals who practice dentistry without a license. If the proponents of laboratory licensure truly support this measure, be lieving it to be a potential aid in law
enforcement, the Florida and Oklahoma courts have shown them the folly of their position. *Secretary, Council on Dental Trade and Laboratory Relations. 1. Clark v. Dist. Ct. of Iowa, I25 N.W. 2d 264 (I963). 2. State ex. rel. Zimmerer v. Clark. 252 Iowa 578, 107 N.W., 2d 726. 3. State ex. rel. Zimmerer v. LaDoal, Iowa Dist. Ct., Polk County, equity no. 67500. 4. State ex. rel. Zimmerer v. R. L. Crosier, J. H. Crosier, H. F. Wylie, C. W . Schultz, Iowa Dist. Ct., Woodbury County, equity no. 83846. 5. State ex. rel. Zimmerer v. Cunningham, Iowa Dist. Ct., Webster County, equity no. 37257. 6. State ex. rel. Zimmerer v. Osborn, Iowa Dist. Ct., Scott County, equity no. 46989. 7. State ex. rel. Zimmerer v. Niggel, Iowa Dist. Ct., Webster County, Civil no. 37,545. 8. Sarich v. Dist. Ct. of Iowa, in the Supreme Court of Iowa, filed April 8, I964. 9. Crosbie v. State of Oklahoma, 330 P.2d 602. 10. Mitchell v. Gillespie, I64 SO,2d 867 (Fla.) (I964). 11. Board of Governors of the Registered Dentists of Oklahoma v. Crouch, Rushing v. Board of Governors, 39! P.2d 796, (1964).