Megdal v. Oregon State Board of Dental Examiners

1978, 21, Argued petition June reversed and remanded November granted February for reconsideration Petitioner, MEGDAL, DENTAL OREGON STATE OF BOARD EXAMINERS, Respondent.

(CA 9772) 586 P2d 816 Portland, cause McEwen, argued W. Donald the brief for petitioner. and filed Laue, Al J. Assistant General, Attorney Salem, argued cause for respondent. With him on the brief were James Redden, A. General, Attorney and Walter L. Barrie, Solicitor General, Salem.

Before Schwab, Chief Johnson, Judge, Gillette Roberts, Judges. JOHNSON, J.

JOHNSON, J. Oregon appeal Board of State of the is an This (Board) revoking petitioner’s order Examiners’ Dental practices dentistry. most Petitioner license to ly Oregon, in Califor offices but also maintains two employs Petitioner dentists. nia, he other wherein company applications for to an insurance submitted employed malpractice insurance for six dentists application space forms on the him in California. requesting applicants’ had been address business that the business The Board found in effect left blank. applications with addresses were disclosed on company inducing the intent of the insurance Oregon, practicing rather the dentists were believe than premium California, and to issue insurance prevailing in Califor which are less than those rates nia. The Board concluded that the non-disclosures representations, false and fraudulent both constituted constituting conduct,” which grounds under ORS license revocation 679.140CLXC).1 part provides: pertinent in

1ORS 679.140 "(1) any may discipline provided section in this The board as any dentistry of practice in this state for person licensed to following causes: "(a) impose a any could for which the court of offense Conviction if penal institution imprisonment federal punishment in a state or of by The record finding required ORS 670.280. makes the the board thereof, by of the court the clerk copy certified or a certified conviction entered, is conclusive judge by in whose court the conviction or of the conviction. evidence "(b) diploma to be loaning any person or Renting his license or person. diploma or of such used as a license incompetence "(c) conduct, gross ignorance, Unprofessional or for inefficiency profession. in his or "(d) 679.176. Any 679.170 or violation of ORS "(2) but is chapter includes this Unprofessional as used in following: limited to "(a) to obtain 'cappers’ 'steerers’ Employing as or are known what business. "(b) misrepresentation. by Obtaining any fraud or fee "(c) patient-dentist Wilfully betraying involved confidences relationship. "(d) abetting any aiding, permitting unlicensed Employing, or dentistry. practice personnel to "(e) any advertising character Making of a use of statements tending public, are untruthful. mislead the or which to deceive or "(f) superiority performance of Advertising professional or the superior manner. professional services in a service, Advertising prices professional unless in accord "(g) developed the board. with rules "(h) signs, glaring light Advertising by large display, or means of tooth, representation of a advertising containing part as a thereof the teeth, any bridgework portion the human head. or "(i) publicity advertising making solicitors or Employing use of or agents. press any "(j) Advertising or free examination. free dental work "(k) service, perform any Advertising guarantee or dental any operation painlessly. dental “(1) anesthetic, drug, any Advertising makes reference to treatment, material, medicine, system formula, in method or to be used "(m) extractions, Advertising dentures. artificial teeth or "(n) or a controlled or excessive use of intoxicants Habitual 167.247,181.010, 161.705, 167.203 to as defined under ORS substance 475.995, 475.285, 471.665, 430.325, 430.405, 475.992 475.005 to 680.100, 689.290, 689.410, 483.710, 689.620 and this section. "(o) drug a attempting or Obtaining a narcotic or to obtain section, any manner previously dangerous drug, defined in this proscribed the rules of the board. scope drugs Prescribing dispensing outside the "(p) or dentistry. practice of cut, advertisement, photograph or any portrait "(q) Using, a so likeness, years the dentist old of reproduced which is more than five advertising. "(4) incompe- 'gross ignorance, determining what constitutes In meaning para- profession’ inefficiency within the in his or tence (1) (c) section, may into take the board of this graph subsection including limited to practices, but not factors and account all relevant by persons accepted currently generally and practices followed state, teachings at dentistry the current in this licensed published in schools, reports relevant technical accredited dental desirability ex- of reasonable journals recognized dental the dental arts. in the furtherance of perimentation (1) "(5) this person subsection disciplining as authorized following section, any methods: all of the use the board "(a) judgment. Suspend

"(b) upon probation. him Place "(c) dentistry in this state. practice Suspend to his license "(d) dentistry in this state. practice his license Revoke

[222] assignments do not we Petitioner makes two which 2 petitioner assignment In his third contends reach.* statutory "unprofessional conduct” as term vague. unconstitutionally applied facts here is vagueness” appli primarily for doctrine The "void applied although statutes, to criminal it has been cable County administrative v. Heintz Lane law. See (1961). al, 152, et Const. Co. 228 Or 364 P2d 627 merely actuality, vagueness” the "void doctrine larger part body concerning the constitu of of law delegation authority. tionality legislative of See County supra; v. Klein v. al, Lane Heintz Co. et Const. App 646, 528 P2d Holbrook, Real Est. Comm. 19 Or (1974); Byse, Law 1355 Gellhorn and Administrative (6th 1974). 104 ed. general licensing proposition delegation aAs including authorities, Examiners, the Board of Dental authority to sanction conduct” has upheld. See Examiners v. been Board Medical (1963); 441, Mintz, 233 Or 378 P2d 945 Ward Ore. (1973); Nursing, Bd. 554 State 510 P2d Hurley App 223, Examiners, v. Board Dental Or 29 (1977). 1229 with 562 P2d These cases are consistent judicial authority trend of since has grounds been not to invalidate broad on constitutional legislative delegations authority to administrative agencies. prone But the fact that courts have been uphold legislative delegations broad not indicate does recently judicial problem. a lack of for the As concern Supreme as the United States divided five Court dentistry "(e) practice in this license to on his Place limitations state. dentistry "(f) in this state. to renew his license Refuse in its the board disciplinary action "(g) such other Take of the costs including proper, assessment of finds discretion proceedings. disciplinary support contends that there was not substantial evidence to Petitioner findings imposed the sanction the Board the Board’s excessive. Congress over the issue of whether an act of to four Arizona v. an overbroad See delegation. constituted 546, L Ed 2d 542 1468, 373 US 83 Ct 10 California, S (1963). dissent- Harlan, Justice for three of the writing Justices, stated the concern: ing underlying "* * * by the principie authority granted that serves legislature by must be limited standards adequate primary preserving separation two functions vital to the Constitution, omit- powers required by [footnote First, deci- policy ted] it insures that fundamental society appointed sions in our will be made not an by the body immediately responsible official but Second, prevents it from becom- people. judicial review the courts ing merely large by an exercise at providing the official against judge with some measure which to original) challenged.” (emphasis action that has been 626, 10 L Ed 2d at 604. 373 US A concern more concrete manifestation of the judicial statutory case law where courts have upheld nar but have delegation, by statutory construction See, e.g., Ore. scope rowed the of the delegation. 21 Peterson, 116, 415 P2d Pub. v. Newspaper (1966). Examiners, 2 Or Bernard v. Bd. Dental Cf. (1970). have Alternatively, 465 P2d 917 courts App advanced subscribed to the increasingly concept that delegations legislative Professor Davis broad are authority constitutionally permissible, provided rules which circum agency the administrative adopts will scribe the order that affected delegation parties a rules of the can game perform know the and courts Davis, See role review. meaningful upon judicial (1969): Justice: A Discretionary Preliminary Inquiry L Rev Davis, A 36 U Chi Delegation, New Approach (1969). OLCC, 16 v. Dairy decision in Sun Ray Our (1973), the Davis 63, 517 P2d 289 adopted Or Control Liquor to the respect Oregon with approach Elect., 277 Or Gen. Commission. Marbet Portland Court (1977), Oregon Supreme 561 P2d legislative of an express absence implied direction, a requirement it would judicially impose delegation with a broad agency legislative that an as a adopt rules prerequisite implementing in both Marbet However, its enforcing authority. Ray Dairy Sun it flexibility recognized essential. agencies Administrative with broad statuto- be ry powers may defining rules required adopt outer of their perimeters authority precondition but rely can also on case implementation, agencies adjudication case as a means determining conduct within those legality particular perimeters. is Board The seminal case on "unprofessional” Mintz, Medical Examiners v. which is con- supra, Dairy Sun with of Ray sistent and the implications Marbet. a \he Board Medical Examiners revoked Mintz drugs administering allegedly license for

physician’s that' provided 677.190 then to induce an abortion. ORS engage for to it for revocation a grounds physician also or conduct” and dishonorable "unprofessional an in procuring or or aiding abetting for "procuring The the Board . . .”3 trial court abortion . overruled the conduct Examiners on the grounds Medical or dishonorable not constitute could adopted unless Board had previously conduct” dis or such defining rules unprofessional at We quote The Court reversed.4 Supreme honorable. opinion: from the some court’s length Mintz, At the of the in Board Medical Examiners time decision pertinent part: provided in ORS 677.190 any may grant applicant who a refuse to license "The board surgery may suspend or or practice and in this state desires to medicine following any for reasons: revoke licenses such “(1) Unprofessional dishonorable conduct. or "(2) aiding abetting procuring abor- procuring an The or or . . tion. .” at n. 1. 233 Or 677.010(1) provided: then ORS ” " unbe- means conduct 'Unprofessional or dishonorable conduct’ the best coming detrimental person licensed medicine or a public.” interest of the 5. 443 n. confusing. procedural posture the Mintz is somewhat 4The case complaint allegations the Board of Medical Examiners before authority

"There is the proposition prior for that a formulation of specific standards the administrative agency necessary or grounds suspension where the for revocation is cast in result broad terms. Sometimes this is predicated upon right the violation aof constitutional process’ theory to 'due upon sometimes * * *” delegation there is an invalid legislative power. agree expressed by "We with the view the court in the case, supra, Bell first in regarding prior promulga- circumstances, unnecessary tion of rules as and under the

secondly in treating 'unprofessional conduct’ as an adequate standard. We have held that previously specify failure to in a statute the circumscrib- standards ing administrative It necessarily actions is not fatal. may legislature be advisable the administrative or agency specific to set out in some adjudicatory standards instances. But this does not must mean that a statute always precise set out the it is to instances under which operative. be No matter specific how the standard stated, standards are there always penumbra is almost requires exercise a agency administrative judgment as to whether the it fall within or facts before legislative outside the design. delegated power And impossible decide be in such vague terms that it is legislative to discern the policy behind the statute. Admittedly, vague. "But the statute here is not that 'unprofessional precise term conduct’ does not have contours circumscribing meaning. its The limits between good professional and bad marked conduct can never be by off of cleavage. variety definite line of And the forms which it unprofessional conduct take makes regulation infeasible to to in attempt specify a statute or all meaning of the acts which come within the of the term. it impossible catalogue The fact that is to all of the findings physician that the had administered the Board’s of fact indicated 677.190(2). In its drugs to induce an abortion in violation of ORS law, however, guilty physician of the the Board found conclusions of 677.190(1). "unprofessional and dishonorable in of ORS conduct” violation invalid, lack of The trial court held the Board’s order was both for Supreme promulgate The to rules. and for failure substantial evidence findings a violation of fact indicate both issues. Since the Court reversed on 677.190(2), why Supreme question Court address arises did the of ORS the answer, presumably, had rested is because the Board The the other issue. 677.190(1). its decision on ORS of types professional very misconduct reason is setting up statutory standard in broad terms and delegating evaluating to the board the of function * * *” conduct in each case.

"The board’s discretion is As not without controls. above, noted was standards those which are are accepted by the practitioners community. standard must be through expert opinion; ascertained except where the standard it in present is clear as is The act procuring case. of an contrary abortion 677.190(2) provisions of clearly ORS unprofessional * * *” added) (citations omitted) (emphasis conduct. at 446-49. Or

The court’s decision in Mintz premised on the circumstances presented in that recog- case expressly nizing that in other instances "specific adjudicatory standards” may be Mintz, necessary. in particular, the alleged unprofessional or dishonorable conduct related to a specific statutory prohibition relating and abortion standards, also involved by "accepted practitioners in the community,” which must be ascer- tained by the board employing expert opinion. its In Ward v. Ore. State Bd. Nursing, 266 Or (1973), 510 P2d 554 the court held that acts which are inchoate conduct expressly by the Board proscribed law, of Nursing are, statute a matter enabling as "conduct derogatory or standards morals 678.111(7) professional nursing,” under ORS former and, therefore, neither testimony nor expert prior promulgation There, of rules was a nurse’s necessary. license was revoked for another aiding abetting nurse, herself hold out as a registered violation 678.021(2). former ORS Hurley Board Similarly, Examiners, Dental 562 P2d App (1977), we relied on Mintz and an attempt held that a fee obtain "fell within misrepresentation 679.140(l)(c) of ORS purview unpro- constituted fessional conduct.” 29 Or at 226. a fee Obtaining fraud or enumerated misrepresentation expressly 679.140(2)(b). unprofessional ORS

[227] Mintz, Ward, Hurley, with the In contrast and by here is conduct at issue not expressly proscribed and is ORS 679.140 not inchoate of the conduct any Indeed, it by that statute. specifically proscribed that even under the broadest definition doubtful intended to conduct” the "unprofessional legislature the conduct here. Such conduct has no encompass competency, relationship petitioner’s professional remote only relationship dentist-patient to the In all the conduct is neither a relationship. probability, it nor is for in or tort.5 grounds crime relief contract the facts most to the Board’s Viewing favorably be the can position, petitioner’s alleged morally business categorized sharp reprehensible. in Mintz that the at issue be noted statute

It should and "dishonorable” both "unprofessional” referred to that in The of the word "dishonorable” use conduct. give legislative indicate a intention statute sanction Examiners authority of Medical Board of that The absence conduct. morally reprehensible an indicates in 679.140 correspondingly term ORS in Mintz also statute issue intent. The opposite conduct” or dishonorable "unprofessional defined contrast, See note 3 supra. generalizations. broad 679.140(l)(c) in terms of speaks ORS or conduct, . . gross ignorance, incompetence or . 679.140(4) that provides expressly ORS inefficiency.” is a inefficiency incompetence ignorance, gross determined standard be community matter likely The most form of civil relief a suit would have been equitable company insurance for rescission of the contract. The insurance agent company company insurance testified that when the disco- practicing cancelling vered the dentists were in California it considered policies, grounds but decided it it valid otherwise because was doubtful had undisputed provided It is for cancellation. that the answers dentists applications only question on the insurance were truthful. The on the forms might an answer that have elicited would have indicated practicing in "Office dentists were California was blank labeled asked, Address.” This blank was filled in on the also forms. forms you duly registered practice your profession "Are and licensed to under the jurisdictions you practice?” applicants laws of all All six of answered affirmative. 679.140(2) ORS expert opinion. then defines "unpro- fessional conduct” to include seventeen specific prac- tices which relate to directly the rela- dentist-patient or to a tionship, dentist’s physical and mental ability 679.140(l)(a) to perform dentistry. addition, ORS as for assigns grounds revocation some forms of morally reprehensible conduct, i.e., conviction of a felony, may be unrelated to the dentist-patient or a relationship dentist’s to This ability perform. 679.140(l)(a) specific in provision ORS that implies other such conduct is not grounds for sanction. 679.140, the

Viewing statutory framework of ORS we find it difficult to construe the phrase, "unprofes- sional . . . includes, conduct but the is not limited to 679.140(2) contained in following” ORS authority as for the Board to revoke the license of dentist any whose the conduct Board deems morally reprehens- ible. This is not to say that the legislature condones reprehensible business practices dentists or in persons engaged other With to occupations. respect latter, the it has not been the custom of the legislature to attempt regulate all business reprehensible practices, on presumably the belief that in many commercial transactions the them- parties can protect Also, selves. the legislature may remedy deem the a prohibiting person from in his or her engaging chosen to be occupation harsh. For the same overly reasons, it is doubtful that intended to legislature empower Board with the to revoke a authority dentist’s license for committing business culpable that practice is unrelated to the of service quality rendered dentist-patient Here the relationship. conduct is only related remotely to the practice in that dentistry a cost which malpractice insurance is is presumably reflected in the fees charged patients. we

Although our express doubts as to whether conduct here is encompassed 679.140(l)(c), we by ORS do not decide finally that that question. It be between relationship dentists and insur malpractice ers, including here, even the conduct at issue to fall dentistry related

sufficiently the "not in regulatory power within the embodied 679.140(2). in it is Conversely, limited to” ORS phrase phrase that that arguable only encompasses (a) through that in similar enumerated subsections 679.140(2). that are to resolve of ORS We reluctant (q) us the extent issue on the record before except here dissimi- substantially find that the conduct we 679.140(2)(a) enumerated lar from ORS minimum, in order for We hold that as a through (q). the "not authority Board to exercise its under clause, substantially limited to” to conduct which is statute, there from that dissimilar enumerated Our reasons prior promulgation must be some of rules. Supreme are requirement implicit such decision in Mintz and are more thoroughly Court’s Ray Dairy. Sun rules in our decision Such stated notice at least dentists and others with provide would respon- meet their required professional what If for review. and basis meaningful judicial sibilities such making, to undertake such rule the Board elects us record accompanying provide rules and rational from which can discern a something with we express the rules and adopted nexus between legislative delegation. remanded.

Reversed and SCHWAB, J., dissenting. C. notes, appeal this is an majority

As the Board of State from an order of the Oregon petitioner license revoking petitioner’s Examiners Dental he know- on the made ground that practice dentistry insur- his malpractice representations false ingly carrier the intent that the insurance carrier with ance them. upon rely error. makes three assignments

The petitioner in his brief as: them He states (1) hearing insuffi- at the was "The evidence adduced findings petitioner the Board’s cient to sustain conduct, guilty supported by unprofessional findings and its are reliable, probative, and substantial evi- dence.”

(2) "The sanction imposed, petitioner’s revocation of license to practice dentistry, does a reasonable not bear relation to the unprofessional to have practices found occurred.” (3) conduct,’ statutory "The phrase 'unprofessional 679.140(l)(c)

ORS vague is so to be uncertain as constitutionally impermissible.” The majority states that it does not reach the first error, two assignments at 223. In my judgment it does not reach the third assignment either, but, rather, error reverses by an reaching issue which is not any basis of assignment of error then, my judgment, by deciding that issue- erroneously.

Since I would affirm the action of the Board of Examiners, Dental I find it to reach the first necessary error, two assignments albeit little need be said to demonstrate that petitioner cannot those on prevail assignments.

As for the first assignment, it necessary only note that we do not novo, but, rather, review de substantial evidence to the Board’s support findings. For there is evidence that led petitioner’s actions his insurance company to insure his California employe-dentists approximately one-quarter premium that he would have had to for California pay insurance malpractice an creating inference his employe-dentists were in his Grants employed Pass, office when in Oregon, fact were they employed in his California office. The his letter sent to petitioner insurance carrier on his Grants Pass letterhead re- questing the addition of his the California dentists to could policy reasonably be viewed as an implicit dentists, that the representation actually who were California, working were in his employed Oregon letter office. The with the of the coupled obliteration office addresses on the covering forms application

[231] office sent by petitioner’s dentists California inference a reasonable supports insurance carrier carrier. intended to deceive his insurance error, it is suffi- assignment the second As for to review that this court is not authorized to note cient an administra- by of a sanction severity imposed agency. tive * "* * either the statute If a licensee violates regulatory rules, the choice of then statute agency is not agency matter discretion remedies is a constitutional possible review absent subject judicial Comm., App 21 Or Oregon Racing v. Nation questions. Board, 21 Or (1975); v.Builders 685, P2d 536 Thoren 536 Consult, v. (1975); Remodeling 148, P2d 1388 533 App (1974), 794, Sup Bd., P2d 1373 App 19 Or 528 Builders (1975); Inc. Enterprises, denied LaMar’s Ct review 77, 336, review denied OLCC, Sup P2d Ct App 524 18 Or 435, (1974).” OLCC, Food, 30 Or Fine Inc. v. Mary’s (1977). 440, 146 567 P2d prevail himself that he cannot agrees Petitioner of error —that assignment his third and last upon conduct,” vague is so statutory phrase, this as to be unconstitutional —unless and uncertain The open- Court. Oregon Supreme court overrules assignment of his under this argument sentences ing of error are: holding decisions prior

"The court should re-examine unconstitu- 'unprofessional conduct’ is not phrase Court recognize Supreme tionally vague. We 441, 378 Mintz, Medical Examiners v. 233 Or Board of ** * (1963) squarely phrase [holds] the P2d 945 vague.” impermissibly if holding reversed the majority Board "unpro-

the conduct here involved can ever constitute conduct” it must first be clearly proscribed fessional holding dental board rule. In this my judgment board Nursing, to Ward v. Ore. State Bd. contrary Board 554, (1973); 510 P2d 55 ALR3d Or Mintz, Medical Examiners v. P2d 945 233 Or Exam., v. Board Dental Hurley (1963); (1977). case leading The 223, 562 P2d 1229 of Mintz I find dispositive Mintz. The language is: "* ** The limits good professional between and bad can

conduct never be marked off line of a definite cleavage. variety And the unprofessional of forms which may take attempt makes it infeasible to specify in a regulation statute or all the acts which come within the meaning of the term. fact that it is impossible catalogue all of the types professional misconduct is the very reason for the statuto- setting up in ry standard broad delegating terms and to the board evaluating function of the conduct in each case * * (Emphasis *.” supplied.) 233 Or at 448. The majority apparently would these distinguish cases on the ground that each involved conduct which violated some specific statute in addition to gener- al unprofessional-conduct statute. I perceive least two arguments to the contrary. The first is simply the use of the mails in connection with a scheme to defraud is a federal criminal offense, § 18 USC 1341 (1977), whether or not customarily prosecuted.

Second, licensee, I do not think that a professional the benefit of an having extensive academic as well as education, professional un- unfairly treated if reasonably surprised he is told that fraudulent misrepresentation directly connection with a mátter related his professional matter which activities —a could never have occurred in his were he not engaged conduct,” profession "unprofessional — constitutes even in the absence of further definition. regulatory To me it is passing strange contrary suggest adult, the face of numerous opinions holding every education, regardless intelligence sophistica- tion, no potentially criminally liable under standards In State more than specific conduct.” v. (1955), Oregon Wojahn, 204 Or 84, 282 P2d 675 the court held that a it a crime statute which made homicide) aof (negligent driving to cause death motor vehicle in a was not uncon- "negligent manner” standard, stating: lack stitutional sufficient [233 1 "* * * need defined with such [T]he standard not be required be that those affected it will never precision foreseeing upon correctly hazard their freedom by a solved degree manner in which a matter of jury be ” * * * 204 Or at 137. P2d 303 Popeil, In State (1959), means of to "by likely produce force phrase, unconstitutionally was held injury” not great bodily Kreutz, 618, 492 City Portland 7 App Or vague. (1972), ordinance P2d 824 this court held that an in a manner it unlawful to a vehicle making operate endanger any or would be likely that "endangers unconstitutionally vague.” was not person property vagueness stated that We have previously defining more in statutes specificity doctrine requires Bd. Palen v. State crimes than in statutes. non-penal Education, 446-47, P2d Higher (1974). involved Yet, if the standard anything, conduct,” here, is more precise "unprofessional to a only sophisticated more when explicit applied many than the standards group professionals all adults statutes which are applied criminal It turns the law topsy-turvy mentally incompetent. conduct” defining rules suggest a professional essential fair give warning are the facts of this case. licensee on I affirm and reasons would foregoing For dissent. therefore respectfully

Case Details

Case Name: Megdal v. Oregon State Board of Dental Examiners

Court Name: Court of Appeals of Oregon

Date Published: Nov 21, 1978

Citation: 586 P.2d 816

Docket Number: CA 9772

Court Abbreviation: Or. Ct. App.