Dr. Ben Burris of Fort Smith has taken his legal battle to clean teeth to the 8th U.S. Circuit Court of Appeals.
Burris, an orthodontist, wants to provide a teeth-cleaning service to patients, but can’t because to do so would be in violation of the Arkansas Dental Practice Act. The act says that orthodontists or other dental specialists can’t provide any services outside their specialization, even though they are licensed dentists and have received the same training as dentists.
Burris filed a lawsuit in U.S. District Court in Little Rock in May against the Arkansas Board of Dental Examiners, challenging the act. The board, however, asked U.S. District Judge Brian Miller to dismiss the case, which he did in November.
“Dismissal is appropriate because the issues involve the interpretation of state law,” Miller wrote in the five-page order. “It appears that the state courts of Arkansas can address the dispute at issue without the need of federal intervention.”
Burris has appealed Miller’s decision on the grounds that Miller abused his discretion and should have kept the case in federal court.
Burris, through attorney Chris Burks of Little Rock, asked that the case be sent back to federal court. Burris also is being represented by Matthew Miller, an attorney for the Institute for Justice of Arlington, Virginia, a nonprofit that handles cases involving civil liberties
The Dental Practice Act “plainly” prohibits Burris’ conduct, the brief said. “The only question for the district court is whether that prohibition is constitutional,” the filing said. “In light of the straightforward application of the statute to Dr. Burris’s conduct, the district court erred in refusing to answer the constitutional question.”
Burks told Arkansas Business that Burris is arguing that his constitutional right to work is being infringed upon by the Dental Practice Act.
The Court of Appeals hasn’t decided what to do with the case yet, Burks said. Its options include letting Miller’s ruling stand, ruling on the case without hearing oral arguments or holding a hearing.
A decision from the 8th Circuit is expected within a month.
‘A Constitutional Right’
Burks said a number of occupational licensing challenges are being fought in courtrooms across the country.
“In general, … courts are finding that these rules and regulations and laws … are not narrowly tailored, not in the compelling government interest and are being changed either legislatively or thrown out,” he said. “Courts are treating this right to work as kind of a constitutional right.”
Burris’ case started in 2013 when he began offering low-cost teeth cleanings at his orthodontic offices. He first started the service in his Jonesboro location and then expanded it to four other offices in northeast Arkansas.
The cleanings were performed by dental hygienists under Burris’ supervision and other orthodontists who worked for him. He charged $99 for adults and $69 for children, which was at least $100 lower than the standard price of a cleaning without insurance, Burris said. The patient would be referred to a primary care dentist if further treatment was needed.
But when the dental board received complaints that Burris was offering the teeth-cleaning service, it threatened to revoke his dental and orthodontic licenses if he continued.
Burris had performed about 200 teeth cleanings when he voluntarily suspended the practice.
“Dr. Burris would like to resume his low-cost cleaning program, and but for the law’s prohibition, he would immediately do so,” according to his brief filed at the 8th Circuit. “He has already invested in his office space and equipment. … Since he has this capability, Dr. Burris believes he should use it, and he would use it if Arkansas did not prevent him from doing so.”
