Ind. Prof'l Licensing Agency v. Atcha

49 N.E.3d 1054

INDIANA PROFESSIONAL LICENSING AGENCY and Indiana State Board of Dentistry, Appellants–Respondents

v.Irfan A. ATCHA, D.D.S., Appellee–Petitioner.

No. 49A02–1504–MI–197.

Court of Appeals of Indiana.

Jan. 20, 2016.

Gregory F. Zoeller, Attorney General, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellants.

James W. Brauer, Katz & Korin, P.C., Indianapolis, IN, Frank R. Recker, Frank R. Recker & Associates, Cincinnati, OH, Attorneys for Appellee.

VAIDIK, Chief Judge.

Case Summary

[1] Dr. Atcha, a Dyer dentist, began an extensive advertising campaign marketing his expertise in modern implant and sedation techniques. Among other claims, he touted that his procedures are “too advanced for most dentists, oral surgeons, and periodontists.” He also promoted himself as the “only licensed and certified advanced trained dentist to perform the IV sedation and dental care on his patients.” Undoubtedly to encourage potential clients to receive dental implants from him, he used pictures to show that dentures combined with dental adhesives are poisonous.

[2] After a number of complaints from fellow dentists, the Indiana Professional Licensing Agency and the Indiana State Board of Dentistry found when advertising his practice Dr. Atcha made false and misleading claims of (1) dental specialty and (2) better materials or superior services. He also was found to have violated regulations compelling him to disclose every dentist within his practice in his advertisements. Upon his appeal to the Marion Superior Court, the court found all three dental advertising regulations unconstitutional.

We reverse in part and affirm in part.

[3] Although protected by the First Amendment, commercial speech receives less protection than other forms of expression. In particular, the State retains the authority to prohibit or restrict false and misleading commercial speech. Here, the State properly restricted Atcha's false and misleading claims implying he had a particular dental specialty and could provide better materials or superior service than other dentists. However, we conclude that the State may not compel a dentist to list on his advertisements every dentist in his practice. Finding no reasonable relationship between compelling the disclosure of all associated dentists and preventing deception, we agree with the trial court that the regulation does not satisfy First Amendment protections for commercial speech. Therefore, we affirm the trial court in part and reverse in part.

Facts and Procedural History

[4] Dr. Irfan Atcha has held a license to practice dentistry in Illinois since 1996. He obtained a dentistry license for Indiana in 2006, purchased an existing practice, and began practicing dentistry in Dyer, Indiana. Shortly after taking over the practice in Dyer, Dr. Atcha began an extensive advertising campaign that included radio, television, billboards, phone books, newspapers, direct mailing, social magazines, and online media.

[5] The gist of Dr. Atcha's voluminous advertising is that he uses modern implant and sedation techniques, which might be particularly helpful to consumers who need prosthetic teeth. However, some of his advertising claims went beyond that simple message. Dr. Atcha implied that he is able to perform implant procedures that are “too advanced for most dentists, oral surgeons and periodontists[.]” Appellant's App. p. 189. He claimed his cosmetic dentures “consistently fool other dentists[.]” Id. at 186. Dr. Atcha implied that there is a lack of accountability and responsibility in corporate dental implant centers. Id. at 189. He claimed that oral surgeons, periodontists, and prosthodontists “make you feel like they're experts in dental implants, but they can do more harm than good.” Id. at 255. In the same advertisement, Dr. Atcha claimed that “[t]he specialist only worries about what he needs to do and has no knowledge or understanding about the restorative end (tooth placement) of the procedure, so the restorative dentist's hands are tied.” Id. He claimed that “general dentists typically have little or no knowledge of the sedation process.” Id. at 191. Dr. Atcha advertised that he is the “only licensed and certified advanced trained dentist to perform the IV sedation and the dental care on his patients.” Id. Finally, under the heading “NO ONE should die with their teeth in a glass!” Dr. Atcha used pictures to indicate that dentures combined with denture adhesives are poison. Id. at 252.

[6] Dr. Atcha's advertisements drew complaints from other dentists and, as a result, the State filed a complaint with the Indiana State Board of Dentistry containing four counts:

Count I: Respondent violated Ind.Code § 25–1–9–4(a)(3) in that Respondent has knowingly violated 828 IAC 1–1–14(a) and (b) in that Respondent has failed to list all dentists in his practice on his advertisements.

Count II: Respondent violated Ind.Code § 25–1–9–4(a)(3) in that Respondent has knowingly violated 828 IAC 1–1–18(k) in that Respondent has used words that express or imply specialization in implant dentistry, that do not state the services are being provided by a general dentist, and are false or misleading.

Count III: Respondent violated Ind.Code § 25–1–9–4(a)(3) in that Respondent has knowingly violated 828 IAC 1–1–18(m) in that Respondent has advertised superior services, better materials, or more skillful care available in his office in a deceptive manner.

Count IV: Respondent violated Ind.Code § 25–1–9–4(a)(3) in that Respondent has knowingly violated 828 IAC 1–1–18(n) in that Respondent has advertised guarantees or warranties that are deceptive and utilized testimonials or endorsements in a misleading manner.

[7] Dr. Atcha and the State reached a settlement agreement and presented it to the Board on February 1, 2013. But the Board rejected the proposed settlement after a hearing.

[8] Thereafter, the Board held another hearing on October 4, 2013, and issued its findings of fact, ultimate findings of fact, conclusions of law, and order on November 15, 2013. The Board ultimately found that Dr. Atcha knowingly violated three regulations: 1) 828 IAC 1–1–14(a) and (b) in that he failed to list all dentists in his practice on his advertisements; 2) 828 IAC 1–1–18(k) in that he used words that express or imply specialization in implant dentistry, that do not state the services are being provided by a general dentist, and are false or misleading; 3) 828 IAC 1–1–18(m) in that he has advertised superior services, better materials, or more skillful care available in his office in a deceptive manner, and that Section 18(m) would not have been violated if the advertisements were not in fact deceptive.

[9] The regulations that the Board found Dr. Atcha violated read, in pertinent part, as follows:

1) 828 IAC 1–1–14 :

(a) Any advertisement for dental treatment shall include the names of the licensed dentists associated with such treatment or treatment facility or employed by the treatment facility or another dentist.

(b) Advertisements listed in telephone directories, or other such advertisements which are listed once a year, must include the names of the licensed dentists associated with the treatment or treatment facility or employed by the treatment facility or another dentist as of the date the contract is made to run the advertisement.

2) 828 IAC 1–1–18(k) :

A dentist who is not considered a specialist by this section and who wishes to announce the services available in his or her practice may announce the availability of those services so long as he or she avoids any communications that express or imply specialization. The dentist shall also state that the services are being provided by a general dentist. No dentist shall announce available services in any way that would be false or misleading in any material respect.

3) 828 IAC 1–1–18(m) :

An advertisement indicating that superior services, better materials, or more skillful care are available in a particular office or by a group of practitioners may be deceptive.

[10] Dr. Atcha was subject to disciplinary sanctions for the three regulatory violations pursuant to Indiana Code section 25–1–9–4(a)(3). The Board ordered, among other things, Atcha's license placed on indefinite probation and a $3000 fine ($1000 per violation).

[11] Dr. Atcha appealed to the trial court, contending, among other allegations, that the Board's Order violated his right to free speech guaranteed under the United States and Indiana Constitutions. The trial court reached only the First Amendment question. It found that the regulations violated Dr. Atcha's First Amendment rights and reversed the Board's Order. The State now appeals.

Discussion and Decision

[12] The legislature has granted courts limited power to review the action of state government agencies taken pursuant to the Administrative Orders and Procedures Act (“AOPA”). See Ind. Educ. Employment Relations Bd. v. Nettle Creek Classroom Teachers Ass'n, 26 N.E.3d 47, 53 (Ind.Ct.App.2015) ; State Bd. of Registration for Prof'l Eng'rs v. Eberenz, 723 N.E.2d 422, 430 (Ind.2000). Under the AOPA, a court may only set aside an agency action that is:

(1) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law;

(2) contrary to constitutional right, power, privilege, or immunity;

(3) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right;

(4) without observance of procedure required by law; or

(5) unsupported by substantial evidence.

Ind.Code § 4–21.5–5–14(d).

[13] Appellate courts stand in the same position as the trial court when reviewing an administrative agency's decision. Amoco Oil Co. v. Comm'r of Labor, 726 N.E.2d 869, 872 (Ind.Ct.App.2000). In reviewing an administrative agency's decision, this Court analyzes the record as a whole to determine whether the administrative findings are supported by substantial evidence. Whirlpool Corp. v. Vanderburgh Cnty.—City of Evansville Human Relations...