The Mall Whitening Studio and the Cease-and-Desist
A tenant in an Albuquerque shopping mall, "Luminous Smiles," offers 45-minute LED teeth-whitening sessions for $129, "smile consultations," and same-day "temporary veneers" made from a digital scan and mailed to the customer. The owner is not a licensed dentist, hygienist, or dental assistant. She says she is providing a cosmetic service, not dentistry, and that no diagnosis or treatment is involved. She has performed about 200 whitening sessions in six months; two customers report gum burns, and one reports that a "temporary veneer" was cemented with a dental adhesive. The Board issues a cease-and-desist letter and a notice of contemplated action. The owner responds that the Board has no jurisdiction, that she was never given a hearing before the cease-and-desist, and that the Board must go to court instead.
1. Is the studio engaged in the practice of dentistry in New Mexico? Analyze each service.
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The Dental Practice Act defines dentistry broadly to include diagnosing, treating, and operating on the human oral cavity, and performing procedures that require the knowledge and skill of a licensed dentist. The label "cosmetic" does not control; the nature of the service does.
Whitening. Applying a peroxide gel to the teeth with an LED light, especially at concentrations that can burn gingiva, involves treating oral tissue and assessing whether the patient is a candidate. Gum burns and the need to protect soft tissue show that the service carries risk requiring licensure. Most boards treat in-office whitening as dentistry when performed for the public for a fee.
Smile consultations. Evaluating a patient's mouth and recommending treatment is assessment and advice, which is within the practice of dentistry when done as part of a treatment service.
Temporary veneers. Taking a scan, fabricating a restoration, and cementing it with dental adhesive is restorative dentistry. Cementing a foreign material onto a tooth can trap bacteria, affect the bite, and damage enamel. This is not a retail product; it is a dental procedure.
Conclusion. On these facts, the studio is practicing dentistry without a license. The Board has jurisdiction over unlicensed practice.
2. What authority does the Board have to issue a cease-and-desist order and to impose penalties?
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The Board's authority depends on the statute. Typically the Board may investigate unlicensed practice, issue a cease-and-desist, seek an injunction in district court, and impose civil penalties after an administrative hearing. A cease-and-desist is usually a preliminary enforcement tool; it does not replace a hearing on penalties.
Application. The Board may order the studio to stop performing procedures that constitute dentistry. It may also refer the matter to the district attorney if unlicensed practice is a criminal offense. Because the owner is not a licensee, the Board's licensee disciplinary process does not fit exactly; the Board must proceed under the unlicensed-practice provisions and any administrative penalty statute.
Limits. The Board cannot use a cease-and-desist to adjudicate contested facts finally or to impose a large penalty without notice and a hearing. It should document the specific procedures observed, the complaints, and the statutory basis. The order should be narrowly drawn to prohibit the dental procedures, not all retail activity.
3. Did the owner have a due-process right to a hearing before the cease-and-desist, and what process is required now?
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Due process is flexible. A pre-deprivation hearing is not always required before a cease-and-desist when the agency is acting to stop an ongoing risk to the public. The owner has a strong argument, however, that a prompt post-deprivation hearing is required before the order becomes a lasting prohibition or penalties are imposed.
Required elements. The owner must receive notice of the charges and the factual basis, an opportunity to respond and present evidence, a hearing before a neutral decision-maker, and a written decision. If the Board seeks penalties or a permanent injunction, it must prove its case in the administrative or judicial forum.
Practical sequence. The Board should keep the cease-and-desist in place pending hearing if the conduct continues, schedule the hearing promptly, and state the statutory authority in the notice. The owner may challenge jurisdiction, but the Board can proceed and let the court decide. The Board should also consider referral to the district attorney and coordination with the mall or landlord, while avoiding any statement that prejudges the facts.