Smulson v. Board of Dental Examiners

Proceedings were taken against pe titioner, a licensed dentist, before the State Board of Dental Examiners, on charges that he had been guilty of unprofessional conduct. After a hearing, the board found the charges to be true and suspended his license to practice dentistry for a period of two years. He then filed in the superior court a petition for a writ of mandate to compel the board to vacate its suspension of his license. The superior court gave judgment against him, from which he appeals.

On appeal he makes three contentions: that the statute under which the proceedings against him were taken is void; that the accusation filed against him with the board was insufficient ; and that there was no evidence before the board to support their finding.

Section 1670 of the Business and Professions Code provides that, 11 Any dentist may have his license revoked or suspended by the board for unprofessional conduct ...” and section 1680 of the same code sets forth a definition of the term 11 unprofessional .conduct,” as it concerns dentists, in seventeen subdivisions. The accusation against petitioner contained two separate charges, based on different parts of this statutory definition. The board found him guilty on both charges, but the separate suspensions ordered run for the same length of time and are concurrent. Hence our conclu

One of the charges against petitioner was based on subdivision (11) of section 1680 of the Business & Professions Code, which includes in the definition of unprofessional conduct “The making use of any advertising statements of a character tending to deceive or mislead the public.” It is contended that this provision is too vague and uncertain to enable a dentist to know what is forbidden, citing Hewitt v. Board of Medical Examiners (1906), 148 Cal. 590 [ 84 Pac. 39 , 113 Am. St. Rep. 315 , 7 Ann. Cas. 750, 3 L. R. A. (N. S.) 896 ], and In re Peppers (1922), 189 Cal. 682 [ 209 Pac. 896 ], in each of which a statute was held void for uncertainty. But neither of the statutes involved in those cases was at all like that here in question. Here the effective words of description are: “tending to deceive or mislead the public.” These words are well known and understood in both popular and legal language. This description of the forbidden practices is no more uncertain than many other statutory provisions which have been held to be valid exercises of legislative power. It is not required that even a penal statute, to be valid, have that degree of exactness which inheres in a mathematical theorem. “ . . . the law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.” (Nash v. United States (1913), 229 U. S. 373 , 377 [ 33 Sup. Ct. 780 , 57 L. Ed. 1232 , 1235].) This quoted statement was approved and followed in People v. Associated Oil Co. (1930), 211 Cal. 93 , 108 [ 294 Pac. 717 ], where the phrase “unreasonable waste of natural gas” was held sufficiently certain for use in a prohibitory statute, and in Pacific Coast Dairy v. Police Court (1932), 214 Cal. 668 , 677 [ 8 Pac. (2d) 140 , 80 A. L. R. 1217 ], where the words “diligent effort to find the owner thereof and to restore or return the same” in a penal statute were upheld against the attack that they were too uncertain. For other instances of statutes held valid against the claim of fatal uncertainty, see People v. Beifuss (1937), 22 Cal. App. (2d) (Supp.) 755 [ 67 Pac. (2d) 411 ] ; People v. Smith (1939), 36 Cal. App. (2d) (Supp.) 748 [ 92 Pac. (2d) 1039 ] ; and People v. Banat (1940), 39 Cal. App. (2d) (Supp.) 765 [ 100 Pac. (2d) 374 ], and cases therein cited.

The same effective words regarding a tendency to deceive the public appear here as in the Glass case, and they are the essential part of the definition in each case. We find here the additional word “mislead.” It does not always imply an intent to deceive (People v. Wahl (1940), 39 Cal. App. (2d) (Supp.) 771, 773 [ 100 Pac. (2d) 550 ], but it does not for that reason lack certainty. Neither does it render the statute invalid on other grounds. While the purpose of the provision is to prevent deception and imposition, its application may properly be extended to cover the occasional case, if there be such, where the misleading is done without any specific intent to do so. (See Semler v. Oregon State Board of Dental Examiners (1935), 294 U. S. 608 , 613 [ 55 Sup. Ct. 570 , 79 L. Ed. 1086 , 1090].)

The charge against petitioner alleged that he “knowingly and intentionally caused to be printed, circulated and distributed to the general public ... a certain hand bill . . . wherein and whereby the said Harry Smulson did advertise as a dentist and did make use of advertising statements of a character tending to deceive or mislead the public, a photostatic copy of which advertisement is hereto attached. ’ ’ It has been held in regard to proceedings before a licensing board for revocation or suspension of a professional license on

At the hearing the advertisement attached to the accusation was placed in evidence, its circulation by petitioner as alleged being admitted. As is usual in such eases it is grossly and fulsomely laudatory of petitioner’s mode of operations and of the quality of the work done by him. Referring to dental plates it says: “They are made after DR. SMULSON personally takes the impressions and makes a special study of your ease. What I have done for thousands of other folks I am confident I can do for you.” The making of impressions of the mouth is a part of the practice of dentistry, and can be done only by a licensed dentist. (Jacobs v. Board of Dental Examiners (1922), 189 Cal. 709 , 714 [ 209 Pac. 1006 ].) The statement just quoted, read with the other matters commendatory of petitioner’s work, conveys the idea that it is too important a part of the practice to be left to the “skilled work of only licensed dentists” in petitioner’s office, which is elsewhere mentioned in the hand

Petitioner endeavors to escape from this conclusion by urging that the word “take” in the statement above quoted does not refer to the actual making of the impressions but means that after they are made petitioner “takes” them in his hands for the purpose of studying them. To anyone who has heard any discussion of such matters this is plainly a forced and unusual construction of the language used. Even if it be accepted as a possible construction, it remains true that the construction we have given the word “take” in this connection, as referring to the actual work of making the impressions, is also possible and much more in consonance with ordinary usage. The use of a word having a double meaning is a common device of those desiring to deceive or mislead others. One who does this cannot escape the charge of misleading or deceiving by saying that to him, or as he meant the words, they were true. (Webster v. Board of Dental Examiners (1941), 17 Cal. (2d) 534 [ 110 Pac. (2d) 992 ]; People v. Wahl, supra).

The hand bill also contains these statements: “You can have your plates and make your first payment 30 days after they are completed by using my no money down easy payment plan”; “Don't Pay Me One Penny Until You Have Worn My Dental Plates for 30 Days.” These are also misleading statements. They must be understood as referring to the agreed time for payment, not—as argued—to some time to which a patient might, by processes of evasion, defer payment. According to petitioner’s testimony the easy payment plan referred to consisted in taking a note and selling it to a finance company, first submitting the application for credit to that company before doing the work, though in

Other parts of the hand bill are claimed to be misleading. It contains many statements undoubtedly intended to appeal to the credulous and attract them to defendant’s office, but further mention of them appears unnecessary, for the two matters above discussed are sufficient to support the decision of the board.

The judgment is affirmed.

York, P. J., and White, J., concurred.