Campbell v. Board of Dental Examiners

Opinion

COBEY, Acting P. J.

The sole question posed by this appeal is whether the use by a dentist of a picture of his own face, or that of a professional announcer, in his advertising in any visual medium (be it newspapers, magazines, television or the “Yellow Pages”) constitutes unprofessional conduct in view of the language of Business and Professions Code section 1680, subdivision (n),

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defining unprofessional conduct as including “The use of advertising containing as a part thereof the representa

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tion of a tooth, teeth, bridgework or any portion of the human head.” The trial court answered this question in the negative in its summary judgment under appeal. For reasons hereafter stated, we hold this answer to be correct, notwithstanding a recent Attorney General’s opinion to the contrary. (56 Ops.Cal.Atty.Gen. 284 (1973).)

This question is purely one of statutory construction or the ascertainment of the intent of the Legislature in enacting the subdivision! The language in question was added to the Dental Practice Act of 1915 by amendment in 1935. (Deering's Gen. Laws, 1915, Act 922, § 13, subd. (3), p. 259; Stats. 1935, ch. 147, § 13, subd. (3), p. 781.) This amendment was proposed by representatives of the California Dental Association, including one Roy A. Green, D.D.S. Dr. Green was familiar with various statutes in other states on the subject, including in particular one in Delaware which added to language similar to that here in dispute the words “or photographs of any person.” Advertising by use of the face of the dentist, at least in the Yellow Pages, was apparently little used by California dentists in 1935. Its use in such pages has since increased greatly—perhaps peaking in 1967. Apparently it is currently quite popular in television advertising.

Appellant (the State Board of Dental Examiners) contends that the language in dispute plainly prohibits a dentist advertising through, depiction of his own face or the face of a professional announcer as the face is indisputably a “portion of the human head.” Respondent dentist (Dr. F. E. Campbell) replies that the words “any portion of the human head” must be read in conjunction with that which immediately precedes them in the statute—namely, “the representation of a tooth, teeth, bridgework or” and' that, under the