Lisa Martinez & Sensational Smiles, LLC v. Mullen, 3:11–cv–01787 (MPS).

11 F.Supp.3d 149

Lisa MARTINEZ and Sensational Smiles, LLC d/b/a Smile Bright, Plaintiffs,

v.Jewel MULLEN, Jeanne P. Strathearn, Lance E. Banwell, Elliot S. Berman, Peter S. Katz, Steven G. Reiss, Barbara B. Ulrich, and Martin Ungar, Defendants.

No. 3:11–cv–01787 (MPS).

United States District Court, D. Connecticut.

Signed March 28, 2014.

Dana Berliner, Paul M. Sherman, William H. Mellor, Arlington, VA, Scott William Sawyer, New London, CT, for Plaintiffs.

Daniel R. Shapiro, Attorney General's Office, Hartford, CT, for Defendants.

MEMORANDUM OF DECISION

MICHAEL P. SHEA, District Judge.

This case, which involves the State of Connecticut's regulation of teeth-whitening services provided by non-dentists, illustrates the great deference courts must afford governmental regulation under the doctrine known as “rational basis scrutiny.” The governmental regulation at issue here is a rule that only a licensed dentist may shine a “light emitting diode” (“LED”) lamp at the mouth of a consumer who seeks to whiten her teeth. Although the State has not submitted any clearly admissible evidence to support this regulation, and although Plaintiff—a teeth-whitening business that does not employ a licensed dentist—has submitted substantial evidence questioning the purpose and efficacy of the regulation, there is some literature that suggests that shining a LED light at a person's mouth poses some risk to that person's oral health. That is enough to provide “a reasonably conceivable state of facts” for a rule allowing only licensed dentists—who are trained and certified in the area of oral health—to shine a LED light at a consumer's mouth, and thus to turn away Plaintiff's rational basis challenge under the very deferential standards that this Court must apply. See Fed. Commc'ns Comm'n v. Beach Commc'ns, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993) (“In areas of social and economic policy, a statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” (emphasis added)).

Plaintiff Sensational Smiles, LLC, d/b/a Smile Bright (“Plaintiff”) ¹ brings this action under 42 U.S.C. § 1983 against the Defendants, the Commissioner of the State of Connecticut Department of Public Health and the members of Connecticut State Dental Commission (the “Commission” and collectively, “Defendants”), seeking declaratory and injunctive relief against the enforcement of a June 8, 2011 Declaratory Ruling of the Commission (the “Declaratory Ruling” or “Ruling”), which classified certain teeth-whitening services as the practice of dentistry within the meaning of Conn. Gen.Stat. Sec. 20–123. Plaintiff is a commercial entity unlicensed as a dentist and formerly engaged in the sale of teeth-whitening products and services, services the Commission classified as the practice of dentistry in its Declaratory Ruling. Plaintiff contends that the Declaratory Ruling violates the Equal Protection and Due Process Clauses as applied to it because there is no rational relationship between what everyone acknowledges is a legitimate government interest—the oral health of the public—and the restrictions set forth in the Declaratory Ruling. Plaintiff seeks a declaratory judgment declaring that those restrictions, as applied to its teeth-whitening services, are unconstitutional, and a permanent injunction barring their enforcement against Plaintiff.

At this point, however, the only restriction at issue is the limitation on the use of LED lights during teeth whitening. Judicial and evidentiary admissions in this litigation have made clear that Plaintiff does not seek to engage in some of the other teeth-whitening activities restricted by the Declaratory Ruling, and that the State concedes that Plaintiff is free to engage in the remaining activities purportedly restricted by the Ruling, as they do not constitute the practice of dentistry. Both sides agree that the remaining issue is narrow and involves who may actually direct a LED light at a consumer's mouth during the teeth-whitening process, and both sides have moved summary judgment. The Court denies Plaintiff's motion and grants Defendants' motion because, as explained below, Plaintiff has failed “to negative every conceivable basis which might support [the regulation allowing only dentists to shine a LED lamp at a consumer's mouth during teeth-whitening services.]” Beach Commc'ns, 508 U.S. at 315, 113 S.Ct. 2096 (internal quotation marks and citations omitted).

I. BACKGROUNDA. Procedural History

The Commission is a statutorily-created body ² that advises and assists the Commissioner of Public Health in issuing dental regulations “to insure proper dental care and the protection of public health, considering the convenience and welfare of the patient, methods recommended by the canon of ethics of the Connecticut State Dental Association and the American Dental Association and accepted health standards as promulgated by local health ordinances and state statutes and regulations.” Conn. Gen.Stat. § 20–103a(a). The Commission and the Commissioner of Public Health also are empowered to take disciplinary action against licensed and unlicensed dental practitioners. See Id. §§ 20–114; 19a–17; 19a–11. Any unlicensed person who practices dentistry shall be guilty of a class D felony for “each instance of patient contact or consultation” that violates the law. Id. § 20–126. The penalties for each violation include imprisonment of 1 to 5 years and a fine of up to $5,000. Id. §§ 53a–35a(1)(A)(8); 53a–41.

On September 8, 2010, the Commission initiated a declaratory ruling proceeding to consider whether “teeth whitening practices and/or procedures constitute the practice of dentistry as set forth in § 20–123 of the Connecticut General Statutes ... and what teeth whitening practices and/or procedures must be performed only by a licensed dentist or persons legally authorized to work under the supervision of a licensed dentist.” (Declaratory Ruling at 1 [Dkt. # 1–1].)

On November 16, 2010, the Commission published a Notice of Hearing in the Connecticut Law Journal, setting the hearing dates of December 8 and 9, 2010. The Notice of Hearing was also sent to the Connecticut State Dental Association, the Connecticut Dental Hygienist Association, the Connecticut Dental Assistants Association, the American Dental Association, the Connecticut Department of Public Health, the Connecticut Department of Consumer Protection, and the Council for Cosmetic Teeth Whitening. ( Id.)

The Commission granted requests by the Connecticut State Dental Association, the Connecticut Dental Hygienist's Association, and Connecticut Dental Assistants Association to be designated as parties to the proceeding, and representatives of these associations appeared at the hearing, which was held on December 8, 2010. ( Id. at 1–2.) During the hearing, the Commission considered exhibits and pre-filed testimony, which were adopted under oath at the hearing. Also, the witnesses were available for questioning and cross-examination. (Declaratory Ruling at 2.)

B. Declaratory Ruling

On June 8, 2011, the Commission issued the Declaratory Ruling that is the subject of this action. ( Id. at 6.) After a summary of the procedural history, the Ruling sets forth “Findings of Fact.” The factual findings relevant to the present, narrowed dispute over the use of LED lights are as follows:

4. Tooth discoloration can be the result of numerous factors including smoking, coffee, tea or any other type of compound taken orally that can stain teeth.

5. Metabolic disease, trauma to the tooth pulp and certain drugs taken when the teeth were being formed can also cause discoloration.

6. Tooth whitening products contain potent oxidizing elements that, if applied incorrectly, can cause serious burns.

7. Determining the cause of discoloration is a significant factor in determining whether attempting to alter the color of a tooth with chemicals will have any effect on improving the appearance of the teeth.

* * *

13. A custom tray for home use prepared by a licensed dentist attempts to minimize tissue burns by creating a custom fit tray that limits the contact of the oral tissue with the bleaching gel.

14. Many of the publications which have analyzed the effect of light during office bleaching procedures have indicated that there is little or no difference in the effectiveness of the bleaching products with concentrated light. There are however, risks associated with the use of light.

15. There should be adequate eye and skin protection for the patient and the operator of the light if it is being used to enhance the product in a bleaching procedure.

16. Pulpal irritation, tooth sensitivity and lip burns have been reported to occur at a higher rate with the use of bleaching lights.

17. The decision of whether to recommend or apply bleaching agents and/or bleaching lights to a particular person's teeth requires significant diagnostic expertise and skills, in part, to allow the provider to distinguish between pathological versus non-pathological causes of tooth discoloration. The presence of existing tooth colored restorations, failing restorations, caries, ceramic crowns, cracks in teeth and exposed root surfaces all need to be identified and evaluated before such bleaching procedures are attempted.

( Id. at 3–4 (internal citations omitted).) These findings were based on the testimony of two dentists, Dr. Jon Davis and Dr. Jonathan C. Meiers. The Commission described Dr. Meiers as “an expert in the field of dentistry” who has “expertise in the field of teeth whitening.” ( Id. at 3.) The Commission found the testimony of both Dr. Davis and Dr. Meiers to be “reliable and credible.” ( Id.)

After making its findings of fact, the Commission discussed which...