Hulva v. Arkansas State Board of Dental Examiners

George Rose Smith, Justice. The State Board of Dental Examiners brought this suit to enjoin the appellant, Bob Hulva, from engaging in the practice of dentistry without a license. This appeal, which comes to us under Rule 29 (1) (a), is from a decree granting the injunction. For reversal it is argued that the governing statutes are unconstitutional for a number of reasons. We affirm the decree. Hulva is not qualified to be licensed as a dentist, not having been to any medical or dental school or having graduated from high school. More than 20 years ago he worked for a few years in a dental laboratory and learned how to make dentures. With that experience he set up his own dental laboratory next to his home in Van Burén. None of his customers are referred to him by a licensed dentist. His work consists of taking either one or two impressions of the customer’s mouth, making the dentures, and delivering them to the customer. He is not trained to take x-rays or to diagnose or treat diseases of the mouth or gums. He makes dentures primarily for elderly people who either are in nursing homes or cannot afford the prices charged by dentists. He does not advertise. The statutes, even before a 1981 amendment passed after this suit was filed, required that dental laboratories deliver their products through a licensed dentist, who ordinarily takes or has the impressions taken in his office and sends the impressions to the laboratory with a specific description of the work to be done. Ark. Stat. Ann. §§ 72-543 and -545 (Repl. 1979). Dr. Gill, a member of the Board, testified that he had four years of dental school and took an examination before obtaining his license to practice dentistry. In his training as a dentist he was educated to diagnose diseases, malignancies, and other conditions in the mouth that might interfere with the wearing of dentures. He testified that he examines the patient’s mouth and usually takes x-rays to determine if there are any areas that might be a detriment to the wearing of a denture. He takes the impressions and either makes the appliance himself or sends the impressions to a qualified laboratory. When the appliance comes back he seats it in the patient’s mouth and establishes certain relationships to be certain that the appliance is correct. The final responsibility for the functioning of the denture rests on the dentist. Hulva challenges the validity of our statutes primarily on the ground that, contrary to the due process and equal protection clauses, he is being arbitrarily deprived of his livelihood, because no special skill or training is required for the work that he does. Such laws, however, have been upheld as a proper exercise of the police power for so many years and in so many jurisdictions that a detailed review of the cases is unnecessary. What we said almost a century ago is still true: The legislative judgment that the welfare of the public requires that those practicing the dental profession shall possess the necessary skill and learning, and shall obtain a certificate, is probably conclusive; but if it were not, the court must take judicial knowledge that it is a profession requiring skill. The fact that the dentist employs his professional skill upon an important part of the body is, of course, known to everyone, and cannot be unknown to the courts. As this is known, it must follow that it may also be judicially known that one unskilled in the profession may injure the person who employs him. As this is so, then ... the Legislature may prescribe the qualifications of those permitted to practice the profession. Gosnell v. State, 52 Ark. 228, 12 S.W. 392 (1889). Accord: Missionary Supporters v. Ark. State Bd. of Dental Examiners, 231 Ark. 38, 328 S.W.2d 139 (1959). Considerations such as those attested to by Dr. Gill demonstrate that our statutes are a permissible exercise of the state’s police power in the area of public health. An Idaho case relied upon by the appellant, Berry v. Summers, 283 P.2d 1093 (1955), is not in point. There the statute that was held invalid provided in effect that only a licensed dentist could work in a dental laboratory, even though the worker performed no work whatever in the oral cavity of any person, took no impressions, and in fact had no contact at all with the ultimate recipient of the denture. Needless to say, Hulva is free to accept that kind of employment if he chooses. The appellant’s remaining arguments require little comment. The statutes do not delegate legislative power, because the Board has made no regulation or order affecting Hulva that is anything more than the execution of the legislative mandates. We fail to see how the statutes are overly broad or indefinite insofar as they specifically prohibit the kind of dental work that Hulva is engaged in. Finally, the perfunctory argument that the statutes are in restraint of trade need not be considered, under the Dixon rule. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). Affirmed. Purtle, J., dissents.