Cherry v. Board of Regents

The appellant, Harry Cherry, was licensed in 1918 to practice dentistry in the State of New York. In October, 1940, he received notice that, upon charges preferred against him, an application had been made to revoke his license to practice dentistry, pursuant to the provisions of section 1311 of the Education Law (Cons. Laws, ch. 16). , A hearing was held, as provided in that section, before the members of the Dental Board, having “ jurisdiction to hear all charges against duly licensed dentists of this state for violation of the provisions of subdivision 2 of this section.”

The charge against the appellant was “ unprofessional conduct ” in violation of subdivision 2 (h) of section 1311 of the Education Law, committed as follows: “ Between on or about October, 1937, up to and including about August, 1939, respondent did make use of and employ a certain dental credit agency as advertising solicitors and free publicity press agents for the purpose of obtaining patients for his dental practice, and during the aforesaid period, respondent did, in fact, obtain as patients Ethel Scolnick, Louise Kroog, Madeline Kannengeiser, Robert Buchholz, Charles Michael, Elinor Isaacs and divers other persons, for his dental practice through the use of the said advertising solicitors and free publicity press agents.”

The Dental Board found that the appellant had' committed the acts specified in the charge and as a conclusion the Dental Board found “ that the charges against respondent have been sustained and that he is guilty of unprofessional conduct in violation of section 1311, subdivision 2-h of the Education Law.” The Dental Board unanimously recommended “ that respondent be reprimanded and censured by reason of his misconduct as above found.” The Board stated in explanation, “ This is the first violation of any of the

The evidence presented at the hearing established the following facts: The owner of a clothing store conceived the plan of maintaining in the store a “ dental credit service.” Customers who, at the clothing store, applied for or were induced to accept the “ dental credit service ” were then sent, and at times escorted by clerks in the clothing store, to the office of a dentist who was asked to fix a price for which he would perform the required dental work. After the price was fixed the “ dental credit service ” agreed to discount the dentist’s charge, paying to the dentist approximately seventy per cent of the charge. The appellant Cherry was one of the dentists who agreed to cooperate in this plan. In the course of two years he obtained about twenty-five patients by such means.

Section 51 of the Education Law provides, so far as material to the questions presented upon this appeal, that: “ Conformably to law the regents may supervise the entrance regulations to and the licensing under and the practicing of the professions of medicine, dentistry, veterinary medicine, pharmacy, optometry and chiropody * * Section 1311, subdivision 2, of the Education Law provides: “ The license and registration of a practitioner of dentistry may be revoked, suspended or annulled, or such practitioner reprimanded, censured or otherwise disciplined * * * upon decision and due hearing in any of the following cases: (a) * * *; (b) * * * ; (c) * * *; (d) * * * . (e) * * * . (f) * * *; (g) that the dentist has advertised for patronage by

The order suspending the license of the appellant for six months must be annulled, unless upon the record here presented it appears that the Board of Regents had power to discipline the appellant for the cause specified in clause (h), “ that the dentist has been otherwise or in any other way guilty of unprofessional conduct.” Concededly he has not offended otherwise against the letter of the statute.

“ That the State may regulate the practice of dentistry, prescribing the qualifications that are reasonably necessary, and to that end may require licenses and establish supervision by an administrative board, is not open to dispute.” (Semler v. Oregon State Board of Dental Examiners, 294 U. S. 608 , 611.) Exercising that power the Legislature may restrict the means of publicity and the form of advertising which a dentist may use. • As the court said in the cited case, when the Legislature does that it is “ not dealing with traders in commodities, but with the vital interest of public health, and with a profession treating bodily ills and demanding different standards of conduct from those which are traditional in the competition of the market place. The community is concerned with the maintenance of professional standards which will insure not only competency in individual practitioners, but protection against those who would prey upon a public peculiarly susceptible to imposition through alluring promises of physical relief. And the community is concerned in providing safeguards not only against deception, but against practices which would tend to demoralize the profession by forcing its members into an unseemly rivalry which would enlarge the opportunities of the least scrupulous.” (p. 612.)

Acting pursuant to this well-recognized power the Legislature has, in section 1311, defined the “ cases ” where the license of a dentist may be revoked or suspended. In clauses (a) to (g) the Legislature has specified conduct and acts which, upon pain of loss of right to practice, are forbidden to a dentist. The conduct and acts banned are, for the most part so reprehensible that a dentist guilty of any of them would thereby demonstrate his unfitness to practice his profession, even though such conduct and acts were

The Legislature, of course, could not grant to an administrative board or quasi-judicial tribunal power to impose such a penalty upon a dentist for act or conduct not defined in advance. That would be contrary to our basic concepts of justice. Nor could it delegate to the Board of Regents legislative power to define, in accordance with an unfettered discretion, the acts or conduct which, in the opinion of the Board, would justify disciplinary action against a. dentist.

The Board of Regents does not claim a power so unlimited. It claims that whether act or conduct of an accused dentist is “ unprofessional ” may be determined by the standards recognized by the dental profession as “ ethical ” and that the Legislature may properly leave to a quasi-judicial body the task of ascertaining and applying those standards in a particular case. It claims, also, that the Legislature has properly delegated to it power to define “ ethical ” professional standards and to adopt rules and regulations prohibiting acts or conduct which do not, in its opinion, conform to such standards, and that a violation by a dentist of a regulation so adopted is sufficient ground for discipline.

The Legislature has provided that, “ Subject and in conformity to the constitution and laws of the state, the regents shall * * * establish rules for carrying into effect the laws and policies of the

In its original form subdivision 2 of section 1311 (L. 1927, ch. 85) provided that: “ Upon the report of the board to the department that the accused has been guilty of unprofessional or immoral conduct, or that he is grossly ignorant or inefficient in his profession, or of fraud or deceit in procuring admission to practice, the department may, without further hearing, suspend the person so charged from the practice of dentistry for a limited season, or may revoke his license.” The statute in that form placed no restriction upon the means of publicity or the form of advertising which a dentist might use, but the Board of Regents adopted regulations declaring that

Thereafter the Legislature amended section 1311 by chapter 609 of the Laws of 1933. As amended subdivision 2 then provided: “ The license and registration of a practitioner of dentistry may be revoked, suspended or annulled, or such practitioner reprimanded, censured or otherwise disciplined in accordance with the provisions and procedure defined in this article upon decision and due hearing in any of the following cases: (a) that the dentist has been guilty of unprofessional or immoral conduct; (b) * * *; (c) * * *; (d) * * *; (e) * * *; (f) * * *; (g) that the dentist is guilty of untrue, fraudulent, misleading or deceptive advertising.” For the first time, in the statute as so amended the Legislature imposed a specific restriction upon the right of a dentist to advertise and declared that “ untrue, fraudulent, misleading or deceptive advertising ” was sufficient ground for revocation of an offending-dentist’s license. The regulations of the Board of Regents purported to impose more drastic restrictions. The bill which had been introduced in the Legislature defining the grounds for the revocation of a dentist’s license included as an additional ground, “ that the dentist has violated the rules of the regents governing-advertising or any other rules.” That ground was stricken out before the bill was passed. (See Brown v. University of State of New York, 242 App. Div. 85 .)

In that case a dentist sought to enjoin the Board of Regents from enforcing a regulation banning “ the employment of letters, hand bills, posters, circulars, cards, stereoptican slides, motion pictures, radio, newspapers or other advertising devices for the purpose of soliciting patronage, except that a dentist may use personal professional cards of a modest type announcing his name, title, address, telephone number and office hours.” (p. 86.) Because the Legislature had undertaken to impose a specific restriction upon dental advertising, the Appellate Division and

It should be noted that in Brown v. University of State of New York (supra) the courts did not hold that the challenged rule or regulation of the Board of Regents was unreasonable. We did not question that, in the exercise of the police power, the State could place such a restriction upon dental advertising. We held that the regulation of the Board of Regents was invalid only because the Legislature, having itself fixed a standard for dental advertising and having provided that failure to abide by such standard was ground for revocation of a license, had by necessary implication sanctioned advertising which did not transgress the express ban of the statute, and had not delegated to the Board of Regents power to provide other standards of permissible advertising or to create additional grounds for revocation of license. Though the Legislature has thereafter by amendment of the statute placed a ban upon the use of some of the means of advertising which the Board of Regents had attempted to ban by regulation, the ban is not complete. Publicity or advertising by other means is still sanctioned by the statute. The reasons which dictated the decision in Brown v. University of State of New York (supra), would, with even more compelling force, constrain the courts to declare invalid any assumption by the Board of Regents to ban by rule or regulation such other means of publicity or advertising.

That does not mean, however, that a dentist may, with impunity, use means of publicity and advertising, though sanctioned by the Legislature, for a purpose or in a manner which is unlawful, or perhaps even improper. The legislative ban includes almost all means which are generally used for publicity or in advertising.

What constitutes unprofessional conduct by a dentist must be determined by those standards which are commonly accepted by those practicing the same profession in the same territory. The law is a very ancient profession and certain forms of conduct have been banned as unprofessional for centuries in both England and America. Ancient traditions have created rigid bans and by common consent those who violate those bans should be excluded from the goodly company of the members of the bar. At least in part these bans have been formulated in Canons of Ethics adopted and enforced by associations of members of the bar. In the profession of the law no person can plead ignorance as palliation for professional misconduct. In vocations, like dentistry, more recently accepted as professions, professional standards are perhaps less uniform, less well understood, and less rigidly defined. Nonetheless, the standards of conduct generally accepted by practitioners in the State of New York are not so indefinite that they cannot be determined by qualified persons. They are part of the ethics of the profession and “ what is generally called the ' ethics ’ of the profession is but the consensus of expert opinion as to the necessity of such standards.” (Semler v. Oregon State Board of Dental Examiners, supra, p. 612.) Every member of the profession should be regarded as an expert for such purpose. There is a moral dereliction in failure by any member of a profession to apply in professional practice the standards which, by consensus of opinion in the profession, are necessary.

The Board of Regents cannot, as we have said, suspend or revoke the license of a dentist for any cause not specified in section 1311, subdivision 2. It cannot ban, as unprofessional, conduct which has been impliedly sanctioned by the Legislature. Nor can it by regulation ban, as unprofessional, conduct which, though not expressly or impliedly sanctioned by the Legislature, accords with the standards accepted as proper by the “ consensus of expert opinion.” Even so there remains a large -field in which the Board of Regents may by the exercise of its specific supervisory power “ prescribe

It may well be doubted whether in this case it can fairly be said that the petitioner, though obtaining patients in the manner above-described through the “ dental credit service,” did in fact employ or make use of “ advertising solicitors or free publicity press agents ” within the meaning of the regulation. We need not decide that now. The only charge against the petitioner is a violation of the ban against employment and use of advertising solicitors and free publicity agents, and that is the only act or conduct of which the petitioner has been found guilty; yet, as we have said, violation of that regulation is not by itself a ground for revocation of a license to practice dentistry. Cooperation by the petitioner in the plan of the so-called “ dental credit service ” might well be subject to censure as “ vulgar commercialism ” and we assume that it could be banned by regulation of the Board of Regents, and might be regarded as unprofessional conduct even without such a regulation. That is not, however, the charge which has been tried by the Dental Board. Indeed, we cannot overlook the fact that in its recommendation that Board stated, “ We are satisfied that respondent discontinued the practices complained of herein as soon as it was brought to his attention that these practices were considered objectionable and unprofessional.” In effect, that is a finding that the petitioner acted without wrongful intent and in the belief that his conduct was not “ objectionable and unprofessional.” Quite evidently the Dental Board found a wrong which, in its opinion, was only technical and at least partly venial.

Loughran, Rippey and Desmond, JJ., concur; Finch, Lewis and Conway, JJ., dissent.

Ordered accordingly.