Opinion

Dhuy v. Maine Bd. of Dental Exam'rs

Court
Superior Court of Maine
Filed
Jun 6, 2003
Status
Unpublished
On the bench
Donald H. Marden
Cited by
0 cases
Authority
More cited than 34.1%

The opinion

STATE OF MAINE SUPERIOR COURT

CIVIL ACTION

KENNEBEC, ss, DOCKET NO. AP-02-84

RALPH B. DHUY,

Petitioner

v. DECISION ON MOTIONS

MAINE BOARD OF DONALD L. GAREREGH

DENTAL EXAMINERS, LAW LIB

Respondent AUG 6 2003

This matter is before the court on respondent's motion to dismiss, petitioner's

motion to amend his original petition, and motion to specify the course of proceedings

and take additional evidence. The underlying action is a petition for review of final

agency action in accordance with MLR. Civ. P. 80C. Petitioner complains that the

decision of the respondent Board in denying him a denturist license and/or granting a

license with conditions is in violation of constitutional or statutory provisions, in excess

of the Board’s statutory authority, made upon unlawful procedure, affected by bias or

error of law, unsupported by substantial evidence on the whole record, and/or

arbitrary or capricious or characterized by abuse of discretion. The petitioner has also

filed a first amended petition. In the amended petition, petitioner acknowledges that

the respondent Board has now awarded him a license but with six conditions. He now

asserts that he is aggrieved by the imposition of the conditions. In the amended

petition, he complains that one specific condition requiring that his advertisements be

reviewed and approved by the Board prior to dissemination is a prior restraint of

speech in violation of the First Amendment of the United States and Maine

Constitutions.

This particular condition first appeared in a judgment of the District Court

enjoining the petitioner from the practice of denturism until licensed by the Maine

Board of Dental Examiners, suspending his right to practice and imposing conditions

on May 17, 2002. This order was appealed to the Law Court which rendered a decision

entitled State of Maine and Maine Board of Dental Examiners v. Ralph B. Dhuy, Dec. No.

2003 ME 75, decided June 4, 2003.

The precise condition imposed by the District Court, VII, Newport, Docket No.

NEW-01-AD-1 (May 17, 2002) required, as a condition of future license, that the

defendant “present all proposed advertising to the Board, or its delegate, for approval

at least 30 days prior to its dissemination. If the Board, or its delegate, rejects the

proposed advertising, it shall not be disseminated. This provision.presumes that.the -

Board will act in good faith and not withhold its approval of advertising which does not

violate any rules or regulations or is not deceptive of misleading. If the Board, or its

delegate, approves or fails to act upon proposed advertising within 30 days after its

submission, the advertising may be disseminated.”

The Law Court Decision considered facts found in the record as follows:

Dhuy advertised repeatedly in various publications, the telephone

directory, and on radio stations during his one-year probation period

between June 1998 and June 1999 without first seeking prior approval

from the Board, and after October 1999 when he no longer was a licensed

denturist. The State introduced evidence of numerous examples of

Dhuy’s advertisements during these times that were deceptive and

misleading. For example, Dhuy was described in a print advertisement as

having earned ‘a doctor of medical denturity degree,’ magna cum laude,

from Mills-Grae University in Kalispell, Montana in 1995. He also

announced in radio commercials that he had recently received from Mills-

Grae University a doctor of medical denturity, which he referred to as a

‘D.D.M. degree.’ These print and radio advertisements are easily

recognized as misleading because the common understanding of a

medically related doctorate degree is four or more years of graduate work

and Dhuy’s degree was earned after only four weeks of instruction.

Further, the appellation of ‘D.D.M.’ could be easily viewed as an

abbreviation for a doctorate in dental medicine. In addition, Dhuy

2

published advertisements in which he represented that a dentist and

another denturist were associated with him at times when they were not,

and he described himself as ‘Maine’s 1* Licensed Denturist,’ creating the

false impression that he held an active license to practice denturism.

There was abundant support for the court’s conclusion that Dhuy

continued to engage in deceptive and misleading advertising after being

sanctioned by the Board in 1998.

The Law Court then went on to note that the State may limit commercial speech

as inherently misleading citing Edenfield v. Fane, 507 U.S. 761, 768 (1993). It notes that

restrictions in the advertisement of professional services “may be no broader than

reasonably necessary to prevent the deception” (citing In re R.M.J., 455 U.S. 191, 203

(1982)). Finally, the Law Court sustained the determination of the District Court on this

particular subject saying, “The court was specific in its terms and described in

reasonable detail the advertising activities, record keeping,.and use of D.D.M. diploma |

and the preface ‘Dr.’ and how these acts were to be restrained. Based on Dhuy’s history

of failing to observe the Board’s earlier order, the District Court acted well within its

broad discretion to fashion an injunction that was responsive to the specific misconduct

the court found.

The issues complained of by petitioner in the instant proceeding have been

determined as a matter of law on the same facts. Accordingly, the matters in the instant

case are moot and “have lost their controversial vitality.” In re Faucher, 558 A.2d 705, 06

(Me. 1989).

The entry will be:

Respondent's motion to dismiss is GRANTED; petitioner’s motion

to amend, petitioner’s motion to specify the course of proceedings and

petitioner’s motion to take additional evidence are DENIED; the Decision

of the Board of Maine Board of Dental Examiners is AFFIRMED.

Dated: June___ ©, 2003 EBL

Donald H. Marden

Justice, Superior Court

3

Date Filed __12/6/02 Kennebec Docket No. __AP02=-84

County

Action Petition for Review

80C

Ralph B, Dhuny Vs.

Maine Roard” of Dental Examiners

Plaintiff’s Attorney

Defendant’s Attorney

Richard B. O'Meara, Esq.

Barbara L. Goodwin, Esq.

75 Pearl St., PO Box 9785

Portland, Maine 04104-5085

Dennis Smith, AAG

6 State House Station

Augusta ME 04333-0006

Date of

Entry

12/6/02 “Petition for Review of Final Agency Action with Independent Claim fdr

Relief, filed. s/O'Meara, Esq.

12/12/02 Petitioner's Motion to Specify the Course of the Proceedings and to Take

Additional Evidence, with Incorporated Memorandum of Law, filed.

s/Goodwin, Esq.

Proposed Order on Petitioner's Motion to Specify the Court of the

Proceedings and to Take Additional Evidence, filed.

12/26/02 Respondent's Entry of Appearance’ and Answer; filed. s/D. Smith, AAG;

Respondent's Motion to’Dismiss and /or Opposition to Motion to

Specify the Course of Proceedings and To Take Additional Evidence

with Incorporated Memorandum of Law with Request for Hearing

and Proposed Order, filed. s/D. Smith, AAG

1/2/03 Petitioner's Reply Memorandum in Support of Petitioner's Motion to Specify

the Course of the Proceedings and to Take Additional Evidence, filed.

s/Goddwin, Esq.

Certificate of Service, filed. s/Goodwin, Esq.

1/17/03 Petitioner's Objections to Respondent's Motion to Dismiss with Incorporated

Memorandum of Law, filed. s/Goodwin, Esq. (attached exhibits A-J)

2/21/03 Petitioner Ralph B. Dhuy's Motion to Amend his Petition for Review of Final

Agency Action, with Independent Claim for Relief, with Incorporated

Memorandum of Law, filed. s/Goodwin, Esq.

Certificate of Service, filed. s/Goodwin, Esq.

First Amended Petition for Review -of Final Agency Action, with Independent

Claim for Relief, filed. s/Goodwin, Esq.

Certificate of Service, filed. s/Goodwin, Esq.

oo 4 [r.lOd_

Notice of siting for

sent to atlorneys of record.

Date of

Entry

Docket No. :

2/28/03

3/6/03

3/25/03

4/2/03

6/6/03

Respondent's Amended Answer; Motion to Dismiss and/or Respondent's

Opposition to Petitioner's Motion to Amend his Petition for Review

of Final Agency Action, with Independent Claim for Relief, with

Incorporated Memorandum of Law with attached exhibits; Request for

Hearing and Proposed Order, filed.

Petitioner's Objections to Respondent's Motion to Dismiss and Reply

Memorandum in Support of his Motion to Amend his Petition for Review

of Final Agency Action, with Independent Claims for Relief, with ine~

corporated memorandum of law, filed. s/O'Meara, Esq.

Agency Record, filed. s/Smith, AAG

Hearing had Motion to Specify Future Course, Motion to Dismiss, Motion

to Amend and Motion to Produce Additional Evidence,with Hon. Justice

Donald Marden, présiding.

Oral arguments made to the court..Court to take matter under advisement.

DECISION ON MOTIONS, Marden, J.

Respondent's motion to dimiss in GRANTED; petitioner's motion to amend,

petitioner's motion to specify the course of proceedings and petitioner's

motion to take additional evidence are DENIED; the Decision of the

of Dental Examiners is AFFIRMED.

Copies mailed to attys. of record. .

Copies mailed to GARBRECHT~LAW LIBRARY, DEBORAH FIRESTONE AND DONALD GOSS:°

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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