STATE of Indiana and State of Indiana ex rel. MEDICAL LICENSING BOARD of INDIANA, Plaintiffs-Appellants, v. Kevin BRADY, individually and doing business as All American Tattoo, an unincorporated Indiana business, Defendant-Appellee.
No. 1-985A223
Court of Appeals of Indiana, First District
April 28, 1986
The trial court gave consideration to the fact that Ramon has offered to take Michelle along on vacations and outings to “the finer restaurants,” and that he testified that he will continue to do so. In its findings, the court stated that it “expected” Ramon to continue this practice. Ramon is certainly free to spend money on his children beyond his obligation to support them. In determining whether the original support amount has become unreasonable, however, the trial court must consider the needs of the children in light of the standard of living they would enjoy, and it may not base the support obligation on their absolute needs while saying that it “expects” the non-custodial parent to maintain the children‘s somewhat higher standard of living gratuitously. Further, this Court has described the custodial parent as being “entrusted with the duty and right to say how [support] funds shall be spent,” and has held that the noncustodial parent may not usurp this right. Whitman, supra, 405 N.E.2d at 612-13. It is for the trial court to determine, in light of all the circumstances and statutory factors, an appropriate amount of support, and for Nathalie to determine how it will be spent.
In basing its decision as to the reasonableness of the support provisions solely on the children‘s absolute needs, rather than on the totality of circumstances, the trial court abused its discretion. We cannot speculate that the court would have reached the same conclusion had it considered all of the circumstances, including the factors listed in
We reverse and remand the cause to the trial court for further proceedings consistent with this opinion.
HOFFMAN, J., concurs.
GARRARD, J., concurs in result.
RATLIFF, Judge.
STATEMENT OF THE CASE
The State of Indiana and the Medical Licensing Board of Indiana (referred to collectively as the Board) appeal from an order of the Monroe Circuit Court denying the Board‘s Verified Petition for Injunction and granting appellee‘s request for an injunction against the Board. We reverse.
FACTS
The essential facts are not in dispute. Kevin Brady (Brady) is a tattoo artist who owned and operated the All American Tattoo Studio in Bloomington, Indiana. Sometime in late 1984, Brady began advertising his services touting himself as the “Tattoer of the Stars.” As the Board‘s brief investigation revealed, Brady‘s advertising campaign was successful.
On March 20, 1985, the Board filed a Verified Petition for Injunction alleging that, by tattooing individuals, Brady was engaged in the unlawful practice of medicine or osteopathic medicine in violation of
On June 4, 1985, the trial court entered specific findings of fact and conclusions of law. Interpreting the statutory definition of the “practice of medicine” contained in
ISSUES
This appeal presents two issues for our review.
1. Whether the statutory definition of the practice of medicine encompasses the tattooing of individuals solely for artistic purposes.
2. Whether a statutory prohibition against the unlicensed tattooing of individuals constitutes an unconstitutional infringement on First Amendment rights
DISCUSSION AND DECISION
At the outset, we note that Brady has failed to file an appellate brief with this court. Therefore, even though the Board is appealing from a negative judgment, see State ex rel. Medical Licensing Bd. v. Stetina (1985), Ind.App., 477 N.E.2d 322, 326, trans. denied; Burras v. Canal Construction and Design Co. (1984), Ind.App., 470 N.E.2d 1362, 1368, we will reverse if it succeeds in making a prima facie showing of error. S.M.V. v. Littlepage (1983), Ind. App., 443 N.E.2d 103, 105, trans. denied. This the Board has done.
Issue One
The present version of the Indiana Medical Practice Act provides the Board with two options to combat the unlawful practice of medicine. It may either institute a criminal prosecution pursuant to
The Board was required to establish only two elements in order to prevail on its petition. It had to demonstrate that, by tattooing individuals, Brady was engaged in the practice of medicine and that he was not licensed to do so. Stetina, at 326; Dean, at 29-30, 116 N.E.2d at 505-06, quoting State ex rel. Bowers v. Moser (1944), 222 Ind. 354, 358-59, 53 N.E.2d 893, 894 (interpreting prior statutory provision).3 Brady admitted that he did not possess a license to practice medicine. Thus, we must determine whether tattooing constitutes the practice of medicine.
The state has, through the legislature, broad powers to regulate in this area. This authority stems directly from the state‘s police power. Ice v. State ex rel. Indiana State Board of Dental Examiners (1959), 240 Ind. 82, 84-85, 161 N.E.2d 171, 172; Dean, at 30, 116 N.E.2d at 506. As a necessary incidence to this power, the state has the authority, through appropriate legislation, to define what conduct will constitute the practice of medicine. Dean, at 31, 116 N.E.2d at 506. Furthermore, the legislature‘s judgment as to what the practice of medicine entails will not be disturbed by the judiciary absent some constitutional infirmity. See Ice, at 85, 161 N.E.2d at 173.
The General Assembly has defined the practice of medicine quite specifically.
“(a) ‘Practice of medicine or osteopathic medicine’ means any one [1] or a combination of the following:
(1) Holding oneself out to the public as being engaged in the diagnosis, treatment, correction or prevention of any disease, ailment, defect, injury, infirmity, deformity, pain or other condition of hu-
man beings, or the suggestion, recommendation or prescription or administration of any form of treatment, without limitation, or the performing of any kind of surgical operation upon a human being, including tattooing, or the penetration of the skin or body orifice by any means, for the intended palliation, relief, cure or prevention of any physical, mental or functional ailment or defect of any person;” (Emphasis added)
“A practical construction of the statute in question is that the legislature of this state intended that any person engaging in the procedure of tattooing as a medical procedure, or medical operation, be licensed to do so, and that such licensing not be required by those who practice tattooing as an art form at the request of their customers.”
Record at 194. We believe, however, that the interpretation argued by the Board, which would define all tattooing, regardless of the purpose, to constitute the practice of medicine, to be the appropriate one.
When construing a statutory provision, this court follows certain well known maxims. We will examine the act as a whole rather than concentrating exclusively on isolated phrases. Gebhard v. State (1985), Ind.App., 484 N.E.2d 45, 47; Daugherty v. State (1984), Ind.App., 466 N.E.2d 46, 52, trans. denied. The words employed by the legislature will be given their ordinary and usual meanings unless a contrary result is demanded by the statute itself. Herbert v. State (1985), Ind.App., 484 N.E.2d 68, 70; Gebhard, at 47. We will also presume that the legislature intended to have its enactments interpreted and applied in a logical manner consistent with the statute‘s underlying goals. Detterline v. Bonaventura (1984), Ind.App., 465 N.E.2d 215, 218, trans. denied. Our ultimate goal, however, is to ascertain and then give effect to the legislature‘s intent. Herbert, at 70; Gebhard, at 47; Daugherty, at 52; Detterline, at 218; Brook v. State (1983), Ind. App., 448 N.E.2d 1249, 1251.
First, if the phrase “for the intended palliation, relief, cure or prevention of any physical, mental or functional ailment or defect of any person” were intended to modify the entire paragraph, as Brady argued below, it would be redundant and, in some aspects, clearly nonsensical. The phrase certainly modifies “the penetration of the skin or body orifice.” Without such a restriction, the scope of this definitional provision would indeed be wide ranging. However, it cannot be argued seriously that the phrase applies to modify any other section of the provision except for “surgi-
Surgery has been variously defined as:
“a branch of medicine that is concerned with diseases and conditions requiring or amenable to operative or manual procedures.”
Webster‘s Third New International Dictionary 2301 (1976).
“... that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities, or injuries.”
Black‘s Law Dictionary 1293 (5th ed. 1979).
“The branch of medicine that is concerned with therapy of diseases or injuries by operation or manipulation.”
Stedman‘s Medical Dictionary 1370 (4th ed. 1976).
“The branch of medicine dealing with diseases requiring operative procedure, including manipulation.”
Blakiston‘s New Gould Medical Dictionary 1009 (1st ed. 1950). Therefore, if “surgical operation” is ascribed its usual and ordinary meaning, application of the modifying phrase would result in an obvious redundancy. This, the legislature certainly would not have intended. Under our statute, then, “any kind of surgical operation” will constitute the practice of medicine. Furthermore, since all tattooing, for whatever purpose, has been expressly defined by the legislature as a “surgical operation” it too will constitute the practice of medicine under
The second analysis supportive of this interpretation is derivative of the first. If we were to read
Next, we note that the trial court rejected the Board‘s interpretation, in part, because it would restrict such common cosmetic procedures as ear piercing to those licensed to practice medicine. Ear piercing is not, however, a surgical operation as that term is commonly understood. Hicks v. Arkansas State Medical Board (1976), 260 Ark. 31, 36, 537 S.W.2d 794, 796. Consequently, unless ear piercing is performed “for the intended palliation, relief, cure or prevention of any physical, mental or functional ailment or defect of any person” it will not constitute the practice of medicine.
Finally, the interpretation proposed by Brady and accepted by the trial court could lead to anomalous results. Such an interpretation would permit unlicensed individuals to perform surgery so long as it was not performed “for the intended palliation, relief, cure or prevention of any physical, mental or functional ailment or defect of any person.” Some common plastic surgery procedures would not then constitute the practice of medicine. We cannot imagine that the legislature would have intended such results when it enacted
We must conclude that the proper interpretation of this statutory provision is that urged by the Board. In 1977, when the legislature amended
Issue Two
Having determined that Brady was engaged in the unlawful practice of medicine, we must reach a second issue. Brady claimed below that enforcement of
The First Amendment protects a wide range of expression whether it takes the form of pure speech or conduct which is sufficiently communicative to qualify as symbolic speech. Spence v. Washington (1974), 418 U.S. 405, 410-11, 94 S.Ct. 2727, 2730, 41 L.Ed.2d 842, 846-47; United States v. O‘Brien (1968), 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672, 679; Yurkew v. Sinclair (D.Minn.1980), 495 F.Supp. 1248, 1253. However, all courts presented with this issue have found that the process of tattooing is neither speech nor even symbolic speech. Yurkew, at 1253; People v. O‘Sullivan (1978), 96 Misc.2d 52, 53, 409 N.Y.S.2d 332, 333. The Federal District Court for the District of Minnesota, in an extensive and well reasoned discussion of this issue, concluded that: “Wherever the amorphous line of demarcation exists between protected and unprotected conduct for First Amendment purposes, the Court is convinced that tattooing falls on the unprotected side of the line.” Yurkew, at 1253. These cases are persuasive.
Since no First Amendment rights are implicated here, it is necessary for us to determine only whether a rational basis existed for the legislature‘s inclusion of tattooing in the statutory definition of the practice of medicine. Tattooing is a process by which dyes are injected under the outer layers of skin, through needles, to form a virtually indelible design. Yurkew, at 1252; Golden v. McCarty (1976), Fla., 337 So.2d 388, 390. As with any invasive procedure, there exists a very real risk of infection or transmission of communicable diseases. Id. Of particular concern is the potential for transmission of infectious or serum hepatitis. Yurkew, at 1252; Grossman v. Baumgartner (1964), 22 A.D.2d 100, 254 N.Y.S.2d 335, 337, aff‘d (1966), 17 N.Y.2d 345, 218 N.E.2d 259, 271 N.Y.S.2d 195. Thus, although Brady employed extensive sterilization procedures in his business, the legislature could have reasonably concluded that, on the whole, it was more prudent to restrict tattooing to those individuals best prepared to guard against its potential dangers. In this regard then,
The judgment of the trial court is reversed and this cause is remanded with instructions that the trial court enter judgment in favor of the Board on its verified petition.
NEAL, J., concurs.
ROBERTSON, P.J., dissents with separate opinion.
ROBERTSON, Presiding Judge, dissenting.
I respectfully dissent from the majority opinion.
It is only where a statute is ambiguous or more than one construction is possible that the reviewing court will construe that statute. Johnson v. LaPorte Bank & Trust Co., (1984) Ind.App., 470 N.E.2d 350. Where a statute is clear and unambiguous, the court on review has the duty to give effect to the plain meaning of that statute. Indiana Collectors v. Conrad, (1984) Ind. App., 466 N.E.2d 768. As applicable to the facts of this case the clear and unambiguous language of
The judgment should be affirmed.