Richard A. Borgner v. Robert G. Brooks
284 F.3d 1204
11th Cir.
2002
Check Treatment
Docket

*1 re- that sentence conclusion court’s district BORGNER, American A. the statute as Richard qualify not under does

view Dentistry, Implant collateral Academy or other post-conviction of “State 2244(d)(2), and does review,” § 28 U.S.C. Plaintiffs-Appellees, 2244(d) period. limitations § toll the not v. observed, correctly court As the district an attack on review not “sentence BROOKS, of Florida Board Robert G. of a correctness constitutionality legal or Defendants-Appellants. Dentistry, to a di- in contrast judgment sentence also action.” See appeal habeas rect No. 01-12098. (finding that F.Supp.2d Young, 89 Appeals, of review “does Court sentence United States application for an appeal, an for as the substitute not serve Circuit. Eleventh or extraordi- proceeding, corpus habeas 6, 2002. March trial, and cannot new nary motion for state court to exhaust as the forum serve habeas of federal purposes for

remedies review”).2

corpus short, district we conclude applica- that an determined properly

court not affect review does

tion for sentence post-conviction remedies

defendant’s limitations one-year does not toll

thus properly court and that district

period, petition was Bridges’s §

found

time-barred.3

AFFIRMED. Moreover, applied to him because should not be Georgia Supreme Court has AEDPA acknowledged application for sen- and an "absurd” limita that an it is an unsound law corpus separate from a habeas corpus. tence review is find writ habeas We on the of tion Forrester, First, 262 Ga. See Saleem v. petition. arguments unpersuasive. these ("[T]he 424 S.E.2d new holding does not involve a in this case seeking of that review means exclusive sentence, law, appli its and thus rule of constitutional review after review the sentence question. cability to case is without the instant through appeal, is and after direct panel 288, 310, Lane, Teague 489 U.S. See v. corpus under the for a writ of habeas petition 1060, 1075, (1989). 103 L.Ed.2d S.Ct. § et in O.C.G.A. 9-14-40 procedures set forth Second, general that "as a mat we have held seq."). ter, 2244(d) period § not limitations does or inad the collateral relief ineffective render 3. Bridges argues this Court holds also that if detention, legality equate test of does application for sentence review suspen unconstitutional therefore is limitations, then toll the AEDPAstatute corpus.” Wyzykow writ habeas sion applied because to him this rule should not Corrs., 226 F.3d Dep’t ski application a retroactive would constitute omitted). Cir.2000) (11th (internal law, citations argues broadly, he new and more *3 Daniti, Dept, of Attorney, Senior

Robert Richard, Health, Greenberg, Trau- Barry Hoffman, Quentel, Lipoff, Rosen & rig, FL, Kula, Tallahassee, P.A., Elliot B. P.A., Miami, FL, for Greenberg Traurig, Defendants-Appellants. Recker, As- Frank R. Recker &

Frank Island, FL, Co., LPA, Mar- Marco sociates Tallahassee, FL, Marshall, ilyn J. Plaintiffs-Appellees. FAY, WILSON, HILL and

Before Judges. Circuit WILSON, Judge: Circuit issue of first im- presents case This provision pression: whether disclosure of Florida Statutes 466.0282, section however, specialty, are not recognized by requires Florida-licensed dentists to in- the American Dental (ADA) Association clude disclaimers when advertising special- the Florida Board of (the Dentistry ty areas not recognized by the state Board).2 when advertising credentials from non- Prior to prohibit 466.0282 state approved credentialing organizations, ed Florida-licensed dentists from advertis places an unconstitutional ban on commer- ing a specialty practice, which included cial speech. The district court found that implant dentistry. prohibition This does, led granted summary judgment in Borgner to challenge the constitutionality favor of Dr. Richard A. Borgner, D.D.S., statute, of this as it applied and the American Academy Implant *4 dentistry. The district court (AAID) Dentistry found the on their challenge to the statute unconstitutional to the statute’s extent that constitutionality. After reviewing it all banned advertising of section 466.0282 affiliation with under the test articulated or certification by in Central non-ADA Hudson recognized Gas and Electric Corp. dental organizations. v. Public Borgner Cook, Service v. Commission 33 New York, F.Supp.2d 1327, 557, (N.D.Fla.1998) U.S. S.Ct. I). (Borgner L.Ed.2d (1980), At the urging we Board, find this statute to be the Florida constitutional legislature under the First amended Amend- section 466.0282, ment and reverse the summary adding pertinent part judgment. provi

sion that allows Florida-licensed dentists BACKGROUND to advertise a practice specialty or creden Borgner tial is a accredited a bona fide Florida-licensed dentist credentialing who practices organization general other dentistry with an than the ADA or the emphasis Board, in implant but dentistry requires in St. Pe- advertisement tersburg, Florida.1 In disclose that light of special- his the indicated specialty or cre ty, Borgner advertises dentialing organization himself aas mem- is not state-ap ber AAID, of the proved. a Fellow AAID, Borgner, of the again, brought an action and a Diplómate of the challenging AAID’s certifying the statute again and pre board, the American Board vailed. of Oral Specifically, Im- the district court plantology/Implant (ABOI/ID). granted Dentistry summary judgment favor The AAID is a national Borgner dental organization AAID, and the and declared sec whose may members earn credentials— tion 466.0282unconstitutional to the extent specifically, Associate prohibits Fellow and Fellow— Borgner from advertising in the field dentistry. The membership or- in the AAID and his status in ganization’s primary purpose, goal and ob- the AAID and and to the ABOI/ID extent jective is the enhancement of its prohibits members’ that it him from representing to skill, knowledge, expertise and in the public field the practice his is limited to of implant dentistry. Implant dentistry implant dentistry without also incorporat and the organizations affiliated with this ing disclosure statement. Implant dentistry explained by the AAID 2. The special areas of dental current- Bingham Hamilton, v. ly 100 F.Supp.2d recognized by the ADA are: dental health, 1234 (E.D.Cal.2000), endodontics, placing “the of de- oral and maxillofacial attaching vices for pathology, oral replacement artificial and surgery, maxillofacial teeth or- to the same thodontics and bones orthopedics, to which dentofacial pe- natural teeth are diatric dentistry, periodontics, anchored.” prostho- dontics. statutory provisions all give effect to must

DISCUSSION statutory provisions and construe related summary de judgments review We another”). with one After harmony novo, standards as applying the same entirety, in its reading 466.0282 reviewing all facts court and district four all of its taking into account most light in the inferences reasonable subsections, meaning we find the statute’s nonmoving party. Parks favorable to on its face. plain unambiguous be Robins, 43 F.3d City Warner Cir.1995); (11th v. Craw Warren 612-13 (1) of the statute lists Subsection Cir.1991). (11th 559, 561-62 ford, 927 F.2d necessary for a prerequisites dentist on commercial state restrictions Whether specialist as a out as a hold himself is an issue sub are constitutional recognizes organization member of v. Fla. novo review. Mason ject to de specialty: dentist must have com (11th Cir.2000). Bar, 208 F.3d pleted program ap education Associa proved by American Dental analyzing section 466.0282 Before (ADA), specialty must tion and this test, we must under the Hudson Central ADA.3 Subsection recognized statute, taken whether the first determine *5 represent explains dentists can still how whole, far as what a is clear as practice that their is limited to a public v. prohibited. EEOC required and what is if specific dentistry specialty their area Serv., Inc., 899, 904 Sys. Total 240 F.3d concurring); (1): is not authorized under subsection (11th Cir.2001)(Edmondson, J., membership in dentist must have attained Mary’s Hosp., Phillipe, Inc. v. . St accrediting (Fla.2000) curiam) or attained credentials an (per 769 So.2d approved by either the organization that (“[A] en statute must be construed its organiza Board or the ADA as a bona fide ....”); tirety. Progressive Young South (in (Fla. Co., practice tion for such an area of dental eastern Ins. 753 So.2d 2000) (“[A]ll approval, Board or ADA parts of statute order receive a must be. require organization a must dentists to together read in order to achieve consis “[wjhere conditions).4 whole,” If a possible, meet several dentist’s tent courts (2) (1) chapter chapter 4. A 3. A this dentist licensed under this dentist licensed under may represent ap- without may not hold himself or herself out as a propriate practice disclosure that his or her membership spe- specialist, in or or advertise specific dentistry a area other limited to cialty recognition by accrediting organiza- dentistry specialty a authorized than area tion, unless the dentist: (1), under subsection unless the dentist has (a) completed specialty a Has education membership in attained or has otherwise by program approved the American Dental accrediting organiza- been credentialed Association and the Commission on Dental recognized by a which is the board as tion Accreditation and: organization fide for such an area of bona eligible Is for examination a na- 1. practice. recognized by dental In order be specialty recognized tional board accrediting organiza- as a fide the board bona Association; or American Dental specific practice for a area of dental tion diplómate specialty 2. Is a dentistry of national other than a area of autho- (1), recognized by organization board the American Dental subsection rized under Association; membership credentialing or must condition (b) following: continuously upon all Has her- of its members of the held himself or formal, specialist (a) self out as a since December completion full- Successful specialty recognized by program in a time advanced education that is sponsored by university- American Dental Association. affiliated with or 466.0282(1). § and is: Fla. Stat. based dental school specialty does not fit into (1), subsection recognized as a bona fide specialty accred- and if a dentist is not a member or iting lacks organization by the ADA or the credentials an organization under Board.5 sub- (2), (3) then subsection applies. Finally, (4) subsection explains the pur- Subsection allows dentists to advertise pose behind the statute: the Florida Leg- their emphasis, despite the lack of islature does not want the public recognition,

ADA if they include a dis- misled regarding the specialization and claimer explaining that this specialty is not particular credentials of dentists. recognized by the ADA or the Board. Legislature wants the public to be in- Moreover, if the dentist wishes to adver- formed that some specialties dental tise membership in a specialty organiza- organizations some recognizing these spe- tion not approved by the ADA or the cialties are not sanctioned the ADA or Board, then the may dentist also advertise the Board. The Legislature finds includ- membership in organization (or ing disclosure statements in particu- these credentials has he/she received this or- lar advertisements is the least restrictive ganization) if the dentist includes a dis- means available to ensure consumers will claimer explaining this organization is not not be misled.6 Beyond degree; the dental TION) ... IS NOT RECOGNIZED AS A graduate 2. At the postgraduate level; BONA FIDE SPECIALTY ACCREDITING ORGANIZATIONBY THE AMERICANDEN- 3. Of at least months in duration. TAL ASSOCIATION OR THE FLORIDA (b) Prior training didactic and clinical ex- BOARDOF DENTISTRY.” perience specific in the area of dentistry *6 466.0282(3). § Fla. Stat. greater which is than that of other dentists. (c) completion Successful of oral and writ- (4) 6. purpose The of this section prevent tois ten examinations psychometric based on a dentist from advertising appropri- without principles. ate disclosure membership organization in an 466.0282(2). § Fla. Stat. which may perceived be the as (3) 5. Notwithstanding requirements the recognizing or accrediting specialization or (1) (2), subsections a dentist who lacks unique other competencies in an area of den- membership certification, in or diplómate sta- tistry that is not recognized or accredited tus, or other similar credentials from an ac- the American Dental Association or the boárd crediting organization approved as bona fide in accordance with this section. The purpose by either the American Dental Association of this section is prohibit also to a dentist may the board practice announce a emphasis advertising a specialty or other area of any in other practice area of dental if the practice dental without appropriate disclo- incorporates dentist capital in letters or some special sure unless the competencies held other clearly manner distinguishable from the the satisfy dentist requirements the of subsec- announcement, rest solicitation, or ad- (1) tion (2). subsection Legislature the following vertisement statement: "... finds that dental consumers can reasonably (NAME OF ANNOUNCED AREA OF DEN- rely requirements on these as satisfactory evi- PRACTICE) TAL ... IS NOT RECOGNIZED of a dence dentist’s meaningful attainment of AAS SPECIALTYAREABY THE AMERICAN competencies in or other bona DENTAL ASSOCIATION OR THE FLORIDA fide practice areas of dental advertised. The BOARD OF DENTISTRY.” If such an area of Legislature also finds process that this for the practice dental officially recognized by an recognition of specialties dental and other organization dentist desires to ac- bona fide areas of dental is the least knowledge or otherwise reference in the den- restrictive means available to ensure con- announcement, solicitation, tist’s or advertise- sumers are not misled about a dentist's ment, the announcement, same solicitation, unique credentials. or advertisement shall also state prominently: (NAME "... OF REFERENCED ORGANIZA- 466.0282(4). § Fla. Stat. inter- rectly governmental

Therefore, the statute in examining advances after its entirety, we find section 466.0282 does est asserted, [4] whether it is not to serve necessary extensive than more of member- advertising completely ban not ABOI, that interest. AAID and ship or credentials Sub- suggests. court order district 566, Our review of Id. at 100 S.Ct. 2343. (3), conjunction with read when summary will focus on judgment (2), ad- clearly permits subsections properly applied court whether dentistry spe- an implant vertisement of Hudson test. Central membership ABOI cialty AAID and and/or respect prong to the first With long these state- so and credentials has, test, Supreme Court even appropriate accompanied ments are Hudson, drawn a distinc prior to Central statutory con- Keeping disclaimers. and “inherent “potentially” tion between mind, now decide we must struction R.M.J., In ly” misleading advertising. re requirement whether the disclaimer 191, 203, 929, 71 455 U.S. 102 S.Ct. (3) imposes an unconstitutional subsection (1982); Phar L.Ed.2d 64 Va. State Bd. of Amendment Borgner’s First burden on Council, macy Va. Citizens Consumer rights. 1817, Inc., 96 S.Ct. U.S. (1976). Inherently L.Ed.2d 346 mislead Hudson, Supreme In Central advertising ing or false considered that while commercial Court established speech, may regulated commercial pro enjoys First Amendment speech some R.M.J., at re by the state In will. tection, the “accords a lesser Constitution However, U.S. at 929. ad S.Ct. than to protection vertising only potentially that is mislead constitutionally expres guaranteed other ing the other cannot be restricted unless 2343. sion.” U.S. prongs of the Central Hudson test three Amendment is concerned Since First Mason, F.3d at met. See only with “the informational function case, the instant the Board concedes that advertising,” regulations of commer expression, Borgner’s pro the relevant in messages accurately cial do advertisement, posed only potentially *7 activity public the about lawful are form misleading advertising, and is thus com in valid. Id. The standard used evaluat subject speech mercial to the latter three re constitutionality government the ing of the Central Hudson test. prongs speech on strictions commercial comes Hudson, from which set out a Central prong The second of the Central process for consti four-step assessing the government to requires Hudson test the tutionality of restriction on commercial regu in articulate a “substantial” interest speech: Central lating Borgner’s advertisement. Hudson, 566, outset,

At 447 at 100 S.Ct. 2343. the we must determine U.S. that expression protected by argues The Board the state has whether the is First Amendment. [1] For commer- interest in regulating the dental profes sion, establishing and in uniform standards speech provi- cial to come within that certification, end, sion, ac- for to that the state it at least must concern lawful and tivity and misleading. [2] Next, also has an interest in ensuring den misleading advertisements are not govern- we whether the asserted tists’ ask respect If to those standards. mental interest is substantial. both consumers with answers, yield positive previously must noted inquiries we have Courts determine whether [3] regulation di- state has a general interest in regulating

1211 have professions, “they generally required broad Courts have state licensing for power present to establish standards tangible evidence that com It, practitioners.” Fla. Bar v. speech question Went mercial in misleading for Inc., 618, 625, 2371, 115 515 U.S. S.Ct. 182 and harmful to they consumers before will (1995). L.Ed.2d This 541 interest carries find that speech restrictions on such satis responsibility pro- with it a to ensure that fy Central Hudson’s third prong. See fessional advertisements do mislead v. Dep’t Fla. Regu Ibanez Bus. & Prof'l practitioners enjoy consumers about which lation, 136, 147, 512 2084, U.S. 114 S.Ct. Therefore, approval recognition. state (1994) 129 L.Ed.2d 118 (striking down a regulate Florida’s desire to dentists’ ad- regulation up failure to back “pro- vertisements due to its interest in speech concern that would mislead tecting unqualified its citizens inform); rather than Attorney Reg Peel v. incompetent health professionals” care Ill., Disciplinary istration & Comm’n of valid, certainly thereby satisfies the 91, 108-09, 2281, 496 U.S. 110 S.Ct. 110 prong second the Central Hudson test. L.Ed.2d 83 (rejecting the claim that Satz, 504, Strang F.Supp. v. speech misleading certain was for lack of (S.D.Fla.1995). evidence). empirical argues presented tangible has evidence in the part The third of the Central telephone form of two surveys to demon Hudson test has been described as its strate that the restriction on Borgner’s “penultimate Mason, prong.” 208 F.3d at advertising directly addresses an actual portion requires 956. This of the test harm—specifically, that consumers would government “demonstrate that the chal Borgner’s think recog credentials were lenged regulation advances the Govern state, nized a misleading assump ment’s interest a direct and material Bar, 625, regulation question tion that the way.” is de Fla. 515 U.S. at 115 S.Ct. signed to rectify. That burden “is not satisfied rather, speculation conjecture; mere Survey certainly way data is one

governmental body seeking sustain prove on existence of identifiable restriction must Bar, 626-28, harm. Fla. U.S. demonstrate the harms it recites are 2371; Bingham Hamilton, real S.Ct. and that its restriction will fact (E.D.Cal.2000). F.Supp.2d If degree.” alleviate them to a material Co., Brewing survey fairly Rubin v. Coors 514 U.S. results show that likely 131 L.Ed.2d to assume that those adver (1995). The tising “specialty” district court held that a dental fact certi *8 Board not could meet this burden in in by specialty, the fied the state that the case, instant any because it could show a regula Board has credible case that its harm, harm” targets “identifiable that come from would tion an actual the harm of Borgner’s proposed potentially misleading advertisement. advertisements.7 is, survey organizations recognized by 7. The district court found the Board’s those are not Florida, regardless unpersuasive. finding results the or the of no "identifi- ADA state of legitimacy Borgner’s able their or harm” would come from ad- standards. vertisement, the district court seemed to em- regu- state The has a substantial interest in phasize the had profession that not demonstrated lating setting the cer- dental and organiza- organization that AAID and were ABOI "sham a must tain standards dentist or illegitimate. were enjoy recognition. Irrespective tions” or somehow to This meet state issue; organization legitimate does not seem be a relevant the fact of whether the or a aof approval the have certified board by the conducted surveys two Of the organi- national aor agency state Florida Florida Study of the Board, find we the zation. about Attitudes Regarding Residents Den- Certifying in Role Florida's of that a ma- suggest State results survey These persuasive. the most to be Specialists tal think- into misled of consumers jority from results, compiled survey The being as who advertises a dentist that ing nearly interviews, that found completed as advertises or who AAID by the certified survey respon- (63.8%) the of two-thirds dentistry are implant of specialist being a advertise who dentists that believe dents Flori- of the State by sanctioned somehow special- aas by a board being “certified as da. as (i.e., advertise area” particular in a ist Residents of Florida Study The implant in AAID certified being Specialists Dental Dentists Regarding indirectly directly been dentistry) have survey. than significant is less Florida.8 of the State certified important how However, reveal it does (57.6%) survey three-fifths Nearly a dentist his/her ADA certification who a dentist that believe respondents Composed public. area is practice in a par- “specialist being a as advertises interviews, survey completed a being (i.e., as advertise area” ticular lay whether to determine designed was (57.0%) dentistry) or implant specialist who to dentists would drawn persons a cer- practice limited “having his/her spe- asor certified as themselves advertise having as (i.e., his/her advertise area” tain organi- another byor ADA by the cialists has dentistry) implant limited as an recognized been that has zation indirectly certified directly been either credentialing organization acceptable Moreover, Florida.9 the State ADA. had who respondents survey of the 68.2% D. of Kenneth the affidavit According to to be- likely are more specialist visited sci- political Wald, a doctorate who has being who advertise dentists lieve that by the indirectly certified directly or mill, either organi- if organization/diploma sham these dentists standards, assume of Florida State state certain not meet does zation be- qualifications: 97.8% following have enjoy state rec- will not organization then the ac- graduated had dentist lieved being is not AAID The fide. ognition bona school, believed 97.2% dental credited not meet state simply does singled out—it training, believed 95.1% had advance dentist 466.0282(2) and there- § under requirements exam, 83.4% passed the dentist fore, included must be a disclaimer required a minimum was dentist believed advertisement. practice as experience years number that con- case is in this harm actual was the dentist believed specialist, and 96.2% thinking led into will be sumers education. to take continuous required meet state stan- dentistry AAID/ABOI fact, do they recognition, when dards for believe who respondents 9. Those question place to not our It not. indirectly certified directly or has either state ABOI, for standards'—AAID Board’s certain specialist assume aas the dentist reasons, Board's meet the do not whatever believed met: 98.1% have been qualifications believ- recognition. Consumers standards accredited graduated from had the dentist do meet organizations ing that these school, had the dentist believed 96.8% dental misled, *9 and that is being standards the dentist training, believed 94.1% advance re- seeks to requirement the disclaimer harm exam, believed specialty 83.8% a passed dress. of number required a minimum was dentist specialist, as practice a experience to years dentists who believe respondents 8. Those required was dentist and believed 93.3% by a board being certified advertise who education. continuous to take area have been particular a specialist in a research, an expert survey ence and is that is relevant and compelling to large a survey clearly demonstrates that re- proportion Therefore, of consumers. spondents rely heavily approval on the of government justified Florida in regulat- evaluating both general the ADA and ing in this area in such specialized percent Eighty-one. dentists. way (i.e., a information disclaimers in survey of respondents all indicated that advertisements) quickly available to con- they likely were more to visit dentist if a they might sumers so that be able to make they by knew the dentist was certified an informed selecting decision in a dental And, they ADA. over 80% indicated would professional. ability have more confidence in a dentist’s Thus, surveys, through these the state they by

if knew the dentist was certified has demonstrated the actual harm that ADA, indicated they 79% would be could come Borgner’s proposed ad- willing to they more trust a dentist that vertisements that do not include disclaim- was ADA certified. knew disclaimer, ers. Without a consumers are Also, in selecting perform dentists to thinking implant led into dentistry is a implantation, by certification ADA was state-recognized specialty and AAID major reason for following selection enjoy approval, and ABOI when in personal professional or either recommen- reality, they do not. The state has also Knowing special- dation. shown that its requirements disclaimer will specialist ist a was certified as ADA alleviate this providing harm because dis- approved was or “Very” board either help better, claimers will consumers make important “Somewhat” to more than 79.2% more they informed decisions about whom respondents. fact, 81.3% were more general specialized select as their den-- likely to visit a dentist as a spe- certified tist. cialist the ADA. sup- These surveys, together, two taken The fourth prong Central (1) port two contentions: that a substantial requires Hudson an examination of “the portion of the is misled AAID relationship between the [state’s] interests implant dentistry advertisements that and the means chosen to serve them.” explain approval do not that AAID does Bar, Fla. 515 U.S. at 115 S.Ct. 2371. approval; not mean ADA or Board regulation We do not require important that ADA certification anis fac- issue be the least restrictive means avail choosing dentist/specialist tor in a a accomplish objective. able to the state’s

particular portion area large Rather, merely we require “a fit between public. results, survey of the From these legislature’s ends and the means cho many it clear that consumers find accomplish sen those ends—a fit that is difficult to make distinction between perfect, necessarily but reasonable.” certification, many AAID and ADA Bd. Trs. the State Univ. N.Y. v. find ADA of gen- consumers certification Fox, 469, 480, 492 U.S. specialized eral or extremely dentist (1989). L.Ed.2d 388 important. They are thus misled ad- Borgner’s, vertisements like suggest require We find disclaimer implant dentistry them that is an ADA 466.0282, ments in the current

approved that the AAID ais compared previous outright prohibi accrediting bona fide organization. Fur- thermore, Borgner advertising this confusion concerns an issue tions on discussed

1214 requirements long as disclosure necessary tected than extensive more I,10 no to be inter- state’s to the reasonably related are “protecting in interest state’s to serve consumers.” deception of preventing est in incompe- unqualified from its citizens Id. estab- professionals,” care health tent for criteria uniform our deci- underpins

lishing standards rationale The same dentists. Abramson, licensed its held of we the certification In Abramson. in sion pro- at 508. F.Supp. could not Strang, legislature 884 Florida holding from person unlicensed an hibit different significantly are Disclaimers psycholo- a advertising as out or himself speech; on bans outright than require not does law Florida when gist likely to be and less as broad are not they to licensed person be such that govern the ends to disproportionate However, at 1578. F.2d 949 psychology. tol more have been Courts seeks. ment would a that disclaimer suggested we also mandating disclosure regulations erant of alternative, one constitutional be a regu been they have than requirements restrictive, to cure yet sufficient less on commer a total ban impose that lations serving ultimately deception and potential v. Zauderer See speech. cial Office (“To pre- Id. at 1577 interest. state’s Supreme Counsel Disciplinary ban outright over fer disclosure more 651, 626, 105 S.Ct. Ohio, 471 U.S. Court of only advertising not forms of particular on Peel, (1985); 496 2265, 85 L.Ed.2d communi- right to advertiser’s protects Gonzalez, 110-11; Abramson at U.S. public’s general cate, protects but also Cir.1992); (11th Bing 1567, 1577 F.2d information”). receiving in interest to According at 1241. ham, F.Supp.2d that held Peel, Zauderer, Supreme Court “disclosure since the Court lawyers ban narrowly completely not more could much Illinois trench requirements or certified out as flat themselves holding than do interests from on an advertiser’s (i.e., certification advertising dis warning[s] or specialist a speech, on prohibitions Advocacy of Trial required Board appropriately by the National might be claimer[s] were (NBTA)) these statements possibility dissipate the because ... order misleading. inherently or deception.” actually confusion consumer However, 110 S.Ct. 2281. In order at 105 S.Ct. U.S. U.S. disclosure, such found disproportionate the Court disclaimer because that a show certi- specialty seeks, plain regarding a disclosure as full government end the to the NBTA, interest to be of “unduly bur like the fications show needs to tiff “encourage also and would Zauderer Court to the The Id. densome.” merito- utilization development and Ohio provision the disclaimer found attorneys,” programs in rious certification attorneys requiring rule disciplinary require the state suggested the distinc explaining Court a disclosure clude advertise- attorney any with disclaimer legal costs fees legal tion between Id. at certification. mentions ment “we hold that unduly burdensome: not be (“To extent pro- adequately rights an advertiser’s Legislature The at 1331-32. F.Supp.2d prohibited Borgner statute I previous 10. The no the state so that the statute amended advertising any then dentists licensed Florida advertising, this categorically prohibits longer by, in, recognition membership advertising with permits this recog- now but that is not accrediting organization dis- dentist add request additional district by the ADA. or accredited nized if certain ADA/ advertisement categorical- claimer Borgner I found court are not met. requirements review. constitutional ly could survive ban *11 that potentially misleading statements1 of at 114 S.Ct. 2084. According to the private certification or specialization Court, could the disclaimer effectively ruled out consumers, confuse a State “notation might consider the ‘specialist’ designation on screening business certifying letterhead, card or organizations or re- in a yel- pages low listing.” quiring a Id. 146-47, disclaimer about the certifying S.Ct. 2084. organization or the special- standards of a

ty”). However, the Ibanez case is distinguish- able from the instant case. The disclosure In vein, the same the district court in in Ibanez required plaintiff to state in Bingham found that the California State the advertisement “that the recognizing Board Dental Examiners’s enforcement agency [of the CFP credentials] policy, prohibits licensed dentists affiliated with or sanctioned the state from advertising credentials, certain such or federal government, and must set out AAID, as the to be unconstitutional be- the recognizing agency’s requirements for cause the Dental Board “failed to show recognition, including, but not to, limited prohibition a total is necessary.” 100 education, experience, and testing.” Id. at F.Supp.2d However, at 1240. the court 146, 114 S.Ct. 2084. Borgner argues the indicated that the Dental Board’s concern disclaimer, is lengthy complex “could be addressed requiring disclo- renders his affiliation with AAID and sure in the advertisement that the AAID is ABOI Yet, ineffective. the disclaimer in not recognized by the Dental this case only requires plaintiff ADA” or “by requiring the advertisement mention dentistry is not a the requirements summarize for certifi- recognized specialty area the ADA or cation.” Id. at 1241. the Board and/or dentist’s mem- bership in an organization that recognizes

Lastly, Borgner relies entirely on Iba- this specialty is recognized spe- aas nez to support his contention that cialty accrediting organization by the disclaimers in section 466.0282 are “undu- ADA. Compared to the disclosure re- ly Ibanez, burdensome.” plaintiff, quirements Ibanez, the disclaimer in a Certified Public Accountant, wanted to section 466.0282 does not require dentists include her credentials as a Fi- Certified to set out the AAID’s requirements for (CFP) (a nancial Planner credential she recognition, such as the dentist’s edu- received private organization not af- cation, experience and testing. Therefore, filiated with or sanctioned by the Florida on based case, the record in this specifical- Board of Accountancy) in her advertise- ly impact of the disclaimer require- ments public. to the U.S. at ment 466.0282, section Supreme Yet, S.Ct. 2084. a rule promulgated Court and our precedent circuit recom- under Florida’s Public Accountancy Act mending disclaimers as an alternative to prohibited the use any “specialist” des- outright prohibitions on ignation accompanied unless by a dis- speech, we find the disclaimer require- claimer. Id. at 138 n. ments section 466.0282 to not espe- be 2084. The Supreme Court found the cially long or burdensome, but simply an state’s disclaimer requirement un- be effective manner to convey necessary in- constitutional because the Board failed to formation to public. demonstrate the harm in advertising CFP CONCLUSION credentials without a disclaimer and also found the detail required in , the dis- In conclusion, we find that claimer to “unduly burdensome.” 466.0282, Id. which requires Florida-licensed

1216 a substantial has the state that eludes ad- when a disclaimer include to dentists to right Borgner’s Dr. limiting in recognized interest not area vertising the AAID by accreditation his advertis- advertise and when Board the ADA/the advertising is such from because and credentials ABOI/AD in and membership ing also majority The misleading. credentialing organiza- potentially approved non-state that requirement First the the statute’s under that holds tions, constitutional is a dis- include advertising has a substantial Borgner’s state Dr. The Amendment. other, profes- (in letters some capital the dental all claimer regulating interest distinguish- for “clearly undescribed, standards manner uniform establishing sion, advertisement) that dentists’ ensuring of the certification, the rest and from able” con- misleading to not are the are not and ABOI/AD the AAID advertisements that advances it satis- reads organizations accrediting The statute sumers. fide” “bona way; material and that direct requirement in a interest this Hudson fies the Central public the that shown have than survey results no more extensive restriction the advertising those that to assume with both likely disagree I is necessary. Since certified in fact “specialty” dis- conclusions, respectfully dental I must these including a specialty, in that sent. will advertisements in these disclaimer misconception. this public alert Interest Substantial The State’s 1. require- disclaimer Moreover, the current accorded avail- is means restrictive commercial Although the least ment objective. the state protection1, state’s accomplish the Amendment First able court’s protecting the district Therefore, we reverse interest has a substantial Borgner for adver summary judgment misleading potentially grant from public back 203, 191, case and remand the AAID 455 U.S. In re R.M.J. tising. grant (1982). court, instructions The with 929, that 71 L.Ed.2d S.Ct. judg- summary pro cross-motion 466.0282 Board’s section holds that majority misleading ment. advertis public from tects of dentists ability by limiting the ing and REMANDED. REVERSED they may have any credentials advertise dissenting: HILL, Judge, Circuit recognized not an organization “ADA”) (the Association Dental American 466.0282 upholds majority The (the Dentistry Board Florida or the unconstitutionally it claim that against po advertising is “Board”).2 such Unless Applying speech. commercial burdens then, does the statute misleading,3 tentially con- test, majority Hudson Central advertising is such that concedes Bar, Board 3.The 208 F.3d v. Florida See Mason 1. Borgner since Dr. C.J., inherently misleading concur- Cir.2000) (Hill, specially (11th organizations. fact, is, by these accredited ring). Disciplin Registration Attorney Peel See statute that the majority writes Although the Ill., U.S. ary Comm'n of his credentials Borgner to include Dr. permits (1990) (holding 110 L.Ed.2d S.Ct. adver- in his and the AAID ABOI/ID from the ais certifications advertising of such court district tising, agree with the I fact, inherently mislead is not verifiable statute, at a mini- construction inartful mum, majority and the contends ing). speech, chilling effect on has poten however, advertising holds, worst, right to ad- and, empty confers may the con misleading lead since tially organiza- by an accredited that one vertise organizations are these to believe sumer "bona branded state has tion that Board. or the ADA recognized Cf. fide.” not serve a substantial state Now, interest and however, the Board claims that unconstitutionally burdens such advertising is “misleading” because it speech. may cause the to believe incorrectly that the State of

How does Dr. Florida Borgner’s has issued advertising of these his AAID and credentials or officially approves mis- ABOI/AD credentials AAID *13 lead public? the The Board and the does not claim The Board ABOI/ID. submitted that these fide, are not bona nationally to the district court the results of two recognized organizations whose members surveys it argued which demonstrate em- may earn credentials reflecting extensive pirically that such advertising misleads in training significant experience and in the way.5 this field of implant dentistry.4 Indeed, the The district court found this evidence itself, Board prior to the legislature’s en- “altogether insufficient” meet the

actment of section in 1994, 466.0282 recog- Board’s substantial burden under Central nized both the AAID and the ABOI/ID Hudson to “demonstrate that “bona fide restric organizations that credential tions it places speech on target dentists in the area identifi implant dentistry.” harm Borgner Brooks, able and mitigate against F.Supp.2d 1317, 152 such harm (N.D.Fla.2001). in a 1324 direct and that, In effective manner.” recognizing 152 under F.Supp.2d the Florida at effect, statutes then in 1322-23 (citing Mason v. The Bar, Florida dentist was free to advertise (11th his 208 F.3d certifica- Cir. 2000) (state tion from organizations, these the Board must be able to show that the said nothing to suggest that such regulation advertis- directly addresses an actual ing might be harm)). Id. misleading public. The district that, court held Peel, id. at 105 n. (5) 110 S.Ct. 2281 satisfactory presentation of ten cases ("We reject paternalistic assumption that to the AAID's Admissions and Credential recipients advertising] [such are no Board. The AAID approximately has more discriminating members, than the for audience roughly 500 of whom have earned children's prefer television.... We to as- one or both of these credentials. consumer, sume average that with or knowledge without legal profession, of the regard, 5. this I note that surveys these can understand a that statement certification were untimely both incompletely filed. by a organization national is not certification Although "sympathetic it was to Plaintiffs' State, hy what, and can decide any, if complaints about untimely Defendants’ dis- value information.”) to accord this closures,” the district grant court declined to plaintiffs' motion to surveys, strike the noting 4. In order to qualify for AAID's “Associate "[a]ny that prejudice to Plaintiffs lack of status, (1) Fellow” a dentist complete must at opportunity to meet Defendants' sur- late-filed least 300 continuing hours of veys education in could be permitting cured Plaintiffs implant dentistry, including at least take depositions additional at Defendants' ex- education; hours of implant (2) clinical pass pense." order, The district court did not so examination; (3) a written however, successfully because it surveys found that the complete an treatment oral/clinical case ex- "altogether were insufficient to satisfy Defen- amination. Some requirements of the for the dants’ burdens under Central It Hudson.” (1) "Fellow” credential me, include appears therefore, that, or more if even years experience in the results surveys claimed for the are sufficient (2) dentistry; completion of 100 hours of con- to establish that the at tinuing education in implant dentistry in ad- issue misleading, majority opinion dition to required holds, hours for Associate this case should be remanded to the status; Fellow completion of dental im- district court for a plain- determination of the plant cases; (4) of at treatment least suc- tiffs’ motion to strike surveys before examination; cessful completion of oral entry judgment. of final Majority approval.” recognition these any evidence absence real issue n. 7.7 The 1211-1212 Opinion by the recognized previously organizations, inter- therefore, this whether case, instead, this are, sham fide, as bona pass constitu- enough to substantial est is into inquiry “no make organizations not believe I do muster. tional certifi- fitness,” “issue[ ] recipient’s it is. demonstrated Board has see price,” indiscriminately cates 2281,6Dr. 102, 110 S.Ct.

Peel, 496 U.S. the Board enough for clearly It is certification of his advertising Borgner’s way way any identify some —in — identi- no produced organizations by these con- might advertisements Borgner’s Dr. Id. at harm. fiable “[ujnfamiliari- Mason, we said As fuse. be- conclusion rejects majority misinforma- with synonymous ty *14 court it, district to the cause, according Peel, 496 also See at 208 F.3d 957. tion.” wheth- issue of (“there “irrelevant” the on is no focused 102-03, 110 S.Ct. at U.S. “ organi- ‘sham are organizations these mis- er ... are the consumers that evidence illegitimate.” were somehow the of zations’ themselves not inform they led if do then, earli- concedes, that its majority claims under precise standards regulate to desire “Florida’s that allowed”). claim er In order are certification interest to its due advertisements Constitution, dentists’ the offend unqualified from citizens its ‘protecting harm” “identifiable some produce must profession- care health incompetent the permit enough to significant that is ” not the at als,’ Majority Opinion Mason, at F.3d it. mitigate state 426.0282. by section addressed harm the case, real “harm” the only In this 957. court would were, district it If proceeding has identified Board does not statute that entirely correct AAID confusion consumer potential or effec- any direct harm that mitigate that certification with state credential manner. tive a “com- gain might advertising dentist that not think I edge.”8 do petitive harm majority, “[t]he According to the aAs constitutionally significant.9 harm is is not mitigate seeking state the district court’s result, affirm I would AAID certi- harmed will be consumers Statute Florida holding may be dentists, that consumers but fied a target been shown has enjoys 466.0282 a dentist that such thinking into led the credential- respondents know whether down Peel, struck Supreme Court 6. persuade much attorneys ing agency or not—will from ad- prohibiting statute Illinois worthy, are National dentists certification vertising public their that such ''NBTA”) (the there advertising where Advocacy trustworthy. Trial Such capable, and the NBTA was showing that upon was no advantage professional confer will organization or certifying reputable, credible cre- advertise themselves who dentists any way by misled in would be ac- are not by organizations that dentialed by it. advertising his certification lawyer Association, Dental cepted the American 2281. U.S. at added) (emphasis "survey concluded court The district easily can as- anyone interested I note 7. edge competitive that this certifying not establish organizations does certain whether approved. Borgner state is unmerited.” following rendered expert 8. The Board's 9.Indeed, inter- has an I believe surveys: findings of the about the opinion in the market- competition protecting est that advertise- findings indicate These dentistry. place for "special- "certification” and/or ment about dentistry regardless ization” — genuine threat of identifiable harm sub- enough

stantial to justify Andrew WILSON, T. restrictions Plaintiff-Appellee, places on Borgner’s protected Dr. speech.10 Jo BARNHART, Anne B. Commission

2. The Statute’s Burden er of the Security Social Adminis tration, I also Defendant-Appellant. believe that the statute fails to meet requirement fourth of Central No. 01-14542 Hudson which is that it not be “more Non-Argument Calendar. extensive than is necessary” mitigate the harm identified the state. United States Court of Appeals, U.S. 100 S.Ct. 2343. A consumer read- Eleventh Circuit. ing required statutory disclaimer that March the AAID is “NOT RECOGNIZED AAS BONA FIDE SPECIALTY ACCREDIT-

ING ORGANIZATION BY THE AMERI-

CAN DENTAL ASSOCIATION OR THE

FLORIDA BOARD OF DENTISTRY”

may well conclude that the AAID ais

bogus organization or diploma mill—nei-

ther of which justified. conclusions is

the absence of some demonstration that is not confusion at least likely

the confusion that AAID is a state-spon- organization,

sored I believe the statute

fails the prong fourth of the Central Hud-

son test. truthful,

The “disclosure of relevant in-

formation is likely more make positive

contribution to decisionmaking than is con-

cealment of such Peel, information.”

U.S. at I believe that

today’s decision does not advance this

principle, and for all given the reasons

above, I respectfully dissent. course, 10. Of the state does have a organizations. substantial sham The Board has con- preventing ceded, interest in professionals hold, from ad- and the majority does not howev- vertising granted er, by bogus credentials present that this interest is in this case.