Dentists, Never Include "Practice Limited To" in Advertising
The South Carolina Administrative Law Court held that a general dentist did not violate board ethics regulations in advertising his practices. Wagner v. SCDLLR, No. 06-ALJ-11-0716-AP (S.C. Admin. Ct. 2008). Wagner appealed a final order by the South Carolina Department of Labor, Licensing and Regulation Department (SCLLR) that found Wagner in violation of S.C. Code Ann. Section 40-15-190(A)(15) and imposed sanctions. Section 40-15-190(A) calls for, among others, suspension of a licensee's license for violations of regulations by the State Board of Dentistry. Regulation 39-11, Principle 4(D), promulgated by the dentistry board, provides: "General dentists who wish to announce the services available in their practices are permitted to announce the availability of those services so long as they avoid any communications that express or imply specialization. General dentists shall also state that the services are being provided by general dentists. No dentist shall announce available services in any way that would be false or misleading in any material respect. The phrase “practice limited to” shall be avoided."
Appellant had two dentistry practices. He advertised his practices in newspapers and the Yellow Pages. The advertisements had "Coastal Orthodontics" in larger font on top and a statement that appelant was a general dentist in smaller font on the bottom. After a formal accusation and a hearing, the SCLLR board issued a final order to suspend appellant's license for one year. However, the license could be reinstated if Wagner met the following conditions: (1) paid a fine of $3,000 within 30 days of the board's final order; (2) published advertisements only after the board's review; and (3) submitted appellant's dental records to review by the board at appellant's expense.
The administrative court noted that while South Carolina law allows general dentists to provide all dental services without a specialist license, a dentist must have such a license to be able to hold him/herself out to the public as limiting his practice to a special area. Once a dentist gets a license as a specialist and announces such specialization to the public, the dentist must limit his practice to the published specialty. S.C. Code Ann. Reg. 39-11(4)(C).
The court first held that SCLLR's sanctions violated appellant's constitutional rights to free economic speech. The statute only prohibits general dentists from using the phrase "practice limited to" in advertising. The terms appellant used were descriptive only, did not express specialization, and included other descriptions besides "orthodontics." Citing the United States Supreme Court, the administrative judge noted that states cannot impose absolute prohibitions on certain types of potentially misleading commercial information such as listing practice areas.
Also, appellant was found to be in compliance with the statutes and regulations. Wagner did not use the terms "practice limited to," he included a disclaimer in the ad to avoid misleading the public, and he also listed several descriptions of practices. The administrative court, therefore, reversed the decision of the SCLLR board.
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