CopyCited 21 times | Published | Court of Appeals for the Eleventh Circuit | 2002 U.S. App. LEXIS 3518, 2002 WL 347828
..._________________________
(March 6, 2002)
Before WILSON, HILL and FAY, Circuit Judges.
WILSON, Circuit Judge:
This case presents an issue of first impression: whether the disclosure
provision of Florida Statutes section 466.0282, which requires Florida-licensed
dentists to include disclaimers when advertising specialty areas not recognized by
the state and when advertising credentials from non-state approved credentialing
organizations, places an unconstitutional ban on commercial speech. The district
court found that it does, and granted summary judgment in favor of Dr. Richard A.
Borgner, D.D.S., and the American Academy of Implant Dentistry (AAID) on their
challenge to the statute’s constitutionality. After reviewing section 466.0282 under
the test articulated in Central Hudson Gas and Electric Corp....
...expertise in the field of implant dentistry. Implant dentistry and the organizations
affiliated with this specialty, however, are not recognized by the American Dental
Association (ADA) or the Florida Board of Dentistry (the Board).2
Prior to 1998, section 466.0282 prohibited Florida-licensed dentists from
advertising a specialty practice, which included implant dentistry....
...The district court found the statute unconstitutional to the extent that it
banned all advertising of affiliation with or certification by non-ADA recognized
dental organizations. Borgner v. Cook,
33 F. Supp. 2d 1327, 1333 (N.D. Fla.
1998) (Borgner I). At the urging of the Board, the Florida legislature amended
section
466.0282, adding in pertinent part a provision that allows Florida-licensed
dentists to advertise a specialty practice or credential accredited by a bona fide
credentialing organization other than the ADA or the Board, but requires that the...
...health, endodontics, oral and maxillofacial pathology, oral and maxillofacial surgery,
orthodontics and dentofacial orthopedics, pediatric dentistry, periodontics, and prosthodontics.
3
of Borgner and the AAID, and declared section 466.0282 unconstitutional to the
extent it prohibits Borgner from advertising membership in the AAID and his
status in the AAID and ABOI/ID and to the extent that it prohibits him from
representing to the public that his practice is limite...
...1995); Warren v. Crawford,
927 F.2d 559, 561–62 (11th Cir.
1991). Whether state restrictions on commercial speech are constitutional is an
issue subject to de novo review. Mason v. Fla. Bar,
208 F.3d 952, 955 (11th Cir.
2000).
Before analyzing section
466.0282 under the Central Hudson test, we must
first determine whether the statute, taken as a whole, is clear as far as what is
required and what is prohibited....
...2000) (“[A]ll parts of a
4
statute must be read together in order to achieve a consistent whole,” and “[w]here
possible, courts must give effect to all statutory provisions and construe related
statutory provisions in harmony with one another.”). After reading section
466.0282 in its entirety, and taking into account all of its four subsections, we find
the statute’s meaning to be plain and unambiguous on its face.
Subsection (1) of the statute lists the necessary prerequisites for a dentist to...
...Is a diplomate of a national specialty board recognized by the
American Dental Association; or
(b) Has continuously held himself or herself out as a specialist since December
31, 1964, in a specialty recognized by the American Dental Association.
Fla. Stat. § 466.0282(1).
5
approved by either the Board or the ADA as a bona fide organization for such an
area of dental practice (in order to receive Board or ADA approval, the
organization must require de...
...nical experience in the specific area of dentistry
which is greater than that of other dentists.
(c) Successful completion of oral and written examinations based on
psychometric principles.
Fla. Stat. § 466.0282(2).
6
credentials he/she has received in this organization) if the dentist includes a
disclaimer explaining this organization is not recognized as a bona fide specialty
accrediting org...
...ation, or advertisement shall also state
prominently: “...(NAME OF REFERENCED ORGANIZATION)... IS NOT RECOGNIZED AS
A BONA FIDE SPECIALTY ACCREDITING ORGANIZATION BY THE AMERICAN
DENTAL ASSOCIATION OR THE FLORIDA BOARD OF DENTISTRY.”
Fla. Stat. § 466.0282(3).
6
(4) The purpose of this section is to prevent a dentist from advertising without
appropriate disclosure membership in an organization which may be perceived by the public as
recognizing or accredited specialization or other unique competencies in an area of dentistry that
7
Therefore, after examining the statute in its entirety, we find section
466.0282 does not completely ban advertising of membership or credentials in the
AAID and ABOI, as the district court order suggests....
...The Legislature also finds that this process
for the recognition of dental specialties and other bona fide areas of dental practice is the least
restrictive means available to ensure that consumers are not misled about a dentist’s unique
credentials.
Fla. Stat. § 466.0282(4).
8
“the informational function of advertising,” state regulations of commercial
messages that do not accurately inform the public about lawful activity are valid.
Id....
...Irrespective of whether
the organization is legitimate or a sham organization/diploma mill, if the organization does not
meet certain state standards, then the organization will not enjoy state recognition as bona fide.
The AAID is not being singled out – it simply does not meet state requirements under §
466.0282(2) and therefore, a disclaimer must be included in the advertisement.
The actual harm in this case is that consumers will be led into thinking that implant
dentistry and the AAID/ABOI meet state standards for recognition, when in fact, they do not....
...Rather, we
merely require “a fit between the legislature’s ends and the means chosen to
accomplish those ends – a fit that is not necessarily perfect, but reasonable.” Bd. of
Trs. of the State Univ. of N.Y. v. Fox,
492 U.S. 469, 480 (1989).
We find the disclaimer requirements in the current section
466.0282,
compared to the previous outright prohibitions on advertising discussed in Borgner
I,10 to be no more extensive than necessary to serve the state’s interest in
“protecting its citizens from unqualified and incompetent health...
...that the AAID is not recognized by the Dental Board or the ADA” or “by requiring
the advertisement to summarize the requirements for certification.” Id. at 1241.
Lastly, Borgner relies entirely on Ibanez to support his contention that the
disclaimers in section 466.0282 are “unduly burdensome.” In Ibanez, the plaintiff,
a Certified Public Accountant, wanted to include her credentials as a Certified
Financial Planner (CFP) (a credential she received by a private organization not
affiliated wit...
...specialty area by the ADA or the Board and/or that the dentist’s membership in an
organization that recognizes this specialty is not recognized as a specialty
accrediting organization by the ADA. Compared to the disclosure requirements in
Ibanez, the disclaimer in section 466.0282 does not require dentists to set out the
AAID’s requirements for recognition, such as the dentist’s education, experience
and testing. Therefore, based on the record in this case, specifically the impact of
the disclaimer requirement in section 466.0282, and Supreme Court and our circuit
precedent recommending disclaimers as an alternative to outright prohibitions on
commercial speech, we find the disclaimer requirements in section 466.0282 to not
21
be especially long or burdensome, but simply an effective manner to convey
necessary information to the public.
CONCLUSION
In conclusion, we find that section 466.0282, which requires Florida-
licensed dentists to include a disclaimer when advertising a specialty area not
recognized by the ADA/the Board and when advertising membership in and
credentials from non-state approved credentialing organizations, is constitutional
under the First Amendment....
...mand the case back to that court, with
instructions to grant the Board’s cross-motion for summary judgment.
REVERSED and REMANDED.
22
23
HILL, Circuit Judge, dissenting:
The majority upholds section 466.0282 against the claim that it
unconstitutionally burdens commercial speech....
...The State’s Substantial Interest
Although commercial speech is accorded First Amendment protection1, the
state has a substantial interest in protecting the public from potentially misleading
advertising. In re R.M.J.,
455 U.S. 191, 203 (1982). The majority holds that
section
466.0282 protects the public from misleading advertising by limiting the
1
See Mason v....
...In order to qualify for AAID’s “Associate Fellow” status, a dentist must (1) complete at
least 300 hours of continuing education in implant dentistry, including at least 150 hours of
25
466.0282 in 1994, recognized both the AAID and the ABOI/ID as “bona fide
orgnaizations that credential dentists in the area of implant dentistry.” Borgner v.
Brooks, 152 F....
...confusion of the AAID credential with state certification is that the advertising
dentist might gain a “competitive edge.”8 I do not think that this harm is
constitutionally significant.9 As a result, I would affirm the district court’s
holding that Florida Statute section 466.0282 has not been shown to target a
genuine threat of identifiable harm substantial enough to justify the restrictions it
places on Dr....
CopyCited 3 times | Published | District Court, N.D. Florida | 1998 U.S. Dist. LEXIS 15432, 1998 WL 965996
...In this action for declaratory and injunctive relief, the plaintiffs, Richard Borgner, D.D.S., and the American Academy of Implant Dentistry (collectively "Plaintiffs"), ask the court to declare unconstitutional, and to enjoin the defendants from enforcing, section 466.0282, Florida Statutes. Such section prohibits Florida licensed dentists from advertising membership in, or specialty recognition by, an accrediting organization that is not recognized or accredited by the American Dental Association. Plaintiffs contend that section 466.0282 violates the First Amendment to the Amendment to the United States Constitution, specifically the First Amendment right to freedom of commercial speech....
...Effective October 1, 1996, the Florida Legislature nullified the Board's 1994 order, BOD 94-01 DS, when it amended Florida law to prohibit dentists in Florida from advertising membership in, or specialty recognition by, organizations not recognized or accredited by the American Dental Association. Fla. Stat., § 466.0282(1) (1996)....
...meet a substantial public need for clinical treatment, but also that this accreditation process is the least restrictive means available to ensure that consumers are not misled about whether an area of dentistry is a legitimate specialty. Fla. Stat. § 466.0282(2) (1996)....
...atric dentistry, periodontics, and prosthodontics. Implant dentistry has not been approved as a dental specialty by the ADA, nor has AAID or ABOI/ID received ADA recognition as a dental specialty accrediting organization. Consequently, the effect of section 466.0282(1) as interpreted by the Florida Board of Dentistry is to altogether prohibit Florida dentists from advertising their membership in and/or specialty recognition by AAID and ABOI/ID. Plaintiffs contend that, by placing a categorical ban on all advertising of specialty credentials by dentists whose credentials are not ADA-approved, section 466.0282 blocks the general public's access to truthful and accurate commercial information....
...review and to successfully rebut the presumption favoring disclosure over concealment, the court finds that Plaintiffs are entitled to summary judgment. Accordingly, it is ORDERED: 1. Plaintiffs' motion for summary judgment (doc. 49) is GRANTED. 2. Section 466.0282 is DECLARED unconstitutional to the extent it prohibits Borgner from advertising his membership in AAID and his credentialed status in AAID and ABOI/ID, and the defendants are ENJOINED from enforcing section 466.0282 against Borgner for advertising his membership in AAID and his credentialed status in AAID and ABOI/ID....
CopyCited 1 times | Published | District Court, N.D. Florida | 2001 U.S. Dist. LEXIS 10651, 2001 WL 855552
...rt, case number 4:97cv93-WS, challenging a 1996 Florida statute that prohibited Florida licensed dentists from advertising membership in, or specialty recognition by, organizations not recognized by the American Dental Association ("ADA"). Fla.Stat. § 466.0282 *1319 (1996)....
...Borgner from advertising his membership and credentialed status in non-ADA-recognized organization. See Borgner v. Cook,
33 F.Supp.2d 1327 (N.D.Fla.1998). Dr. Borgner and the AAID (collectively, "Plaintiffs") have now returned to this court to mount a constitutional challenge to the revised statute, section
466.0282, enacted by the Florida Legislature in 1999....
...He is also a "Diplomate" of the American Board of Oral Implantology/Implant Dentistry ("ABOI/ID"). Dr. Borgner has advertised in the past, and wants to continue advertising in the future, both his membership in the AAID as well as his Fellow and Diplomate credentials. *1320 II As amended in 1999, section 466.0282, Florida Statutes, provides that: (1) A dentist licensed under this chapter may not hold himself or herself out as a specialist, or advertise membership in or specialty recognition by an accrediting organization, unless the dentist:...
...olicitation, or advertisement shall also state prominently: "(NAME OF REFERENCED ORGANIZATION) IS NOT RECOGNIZED AS A BONA FIDE SPECIALTY ACCREDITING ORGANIZATION BY THE AMERICAN DENTAL ASSOCIATION *1321 OR THE FLORIDA BOARD OF DENTISTRY." Fla.Stat. § 466.0282(1) -(3) (1999) (emphasis in original). Implant dentistry has not been approved as a dental specialty by the ADA. [2] Furthermore, neither the AAID nor the ABOI/ID is "a national specialty board recognized by the ADA." Fla.Stat. § 466.0282(1)....
...Likewise, neither the AAID nor the ABOI/ID is "recognized by the [Florida Board of Dentistry] as a bona fide accrediting organization for a specific area of dental practice other than a specialty area of dentistry authorized under subsection (1)," Fla.Stat. § 466.0282(1). III. Dr. Borgner wants to advertise that he is a member and Fellow of the AAID as well as a Diplomate of the ABOI/ID. He contends that amended section 466-0282 prohibits him from doing so. Defendants, on the other hand, interpret section 466.0282 differently. They say that section 466.0282 permits a dentist to advertise membership in and credentials from an organization not approved by the ADA or the Florida Board of Dentistry so long as the advertisement also includes the disclosure statement required by section 466.0282(3). Subsection (2) of section 466.0282 states that, with one exception not applicable to Dr....
...y distinguishable from the rest of the announcement, solicitation, or advertisement the following statement: `[IMPLANT DENTISTRY] IS NOT RECOGNIZED AS A SPECIALTY AREA BY THE AMERICAN DENTAL ASSOCIATION OR THE FLORIDA BOARD OF DENTISTRY.'" Fla.Stat. § 466.0282(3). Whether the statute also permits Dr. Borgner to advertise his membership in and credentials from the AAID and ABOI/ID is less clear. Subsection (1) of section 466.0282 states that, with two exceptions not applicable to Dr....
...perceived by the public as recognizing or accrediting specialization or other unique competencies in an area of dentistry that is not recognized or accredited by the American Dental Association or the board in accordance with this section. Fla.Stat. § 466.0282(4) (1999)....
...proved by the ADA or the Board so long as the advertisement also includes the required disclosure statement. Indeed, that is the position taken by the Board, at least for purposes of this lawsuit. Notwithstanding Defendants' generous construction of section 466.0282, the court is confident that Dr....
...tated in subsection (1). [3] At worst, subsection (1) means what it says: "A dentist [who does not qualify for the two exceptions provided] ... may not ... advertise membership in or specialty recognition by an accrediting organization." Either way, section 466.0282 restricts Dr....
..."inherently" misleading. Indeed, in light of Peel, Ibanez, and Parker, it would be difficult for Defendants to argue otherwise. Defendants accordingly bear the substantial burden of demonstrating that the restrictions placed on a dentist's speech by section 466.0282 both target an identifiable harm and mitigate against such harm in a direct and effective manner....
...membership in and/or credentials from the AAID or the ABOI/ID, or that anyone has complained about a dentist wholike Dr. Borgnerhas advertised his credentials in these organizations. Interestingly, in 1994, before the Florida Legislature enacted section 466.0282, the Board itself issued a final order on a petition filed by Frank R....
...a "certification" or "specialization" but choose not to advertise it. Quite simply, the 1998 survey may have produced results of interest to the ADA, but it did not produce results sufficient to convince this court that the infringements imposed by section 466.0282 on Dr....
...their practices limited to a certain area have been either directly or indirectly certified by the State *1329 of Florida. Again, while these results may be interesting, they do not convince this court that the State of Florida, through enactment of section 466.0282, targets a genuine threat of harm and/or furthers substantial state interests in a direct and effective manner. Absent any other evidence to support the restrictions placed on Dr. Borgner's First Amendment rights by section 466.0282, this court finds that Defendants have failed to satisfy their burden under the Central Hudson test. Plaintiffs are therefore entitled to summary judgment. Accordingly, it is ORDERED: 1. Plaintiffs' motion for summary judgment (doc. 59) is GRANTED. 2. Defendants' motion for summary judgment (doc. 62) is DENIED. 3. Section 466.0282, as amended, is DECLARED unconstitutional to the extent it prohibits Dr. Borgner from advertising his membership in the AAID and his credentialed status in the AAID and ABOI/ID, and Defendants are ENJOINED from enforcing section 466.0282, as amended, against Dr. Borgner for advertising his membership in the AAID and his credentialed status in the AAID and ABOI/ID. 4. Section 466.0282, as amended, is also DECLARED unconstitutional to the extent that it prohibits Dr....
...Borgner from either representing to the public that his practice is limited to implant dentistry or announcing a practice emphasis in implant dentistry without also incorporating a disclosure statement. Defendants are ENJOINED from enforcing the disclosure requirement of section 466.0282, as amended, against Dr....
...llofacial surgery, orthodontics and dentofacial orthopedics, pediatric dentistry, periodontics, and prosthodontics. [3] Defendants have submitted no evidence that any kind of an official interpretative opinion has been issued to advise dentists that section 466.0282 permits them to advertise membership in and credentials from an organization not approved by the ADA or the Board....
