Opinion
DOCKET NO. A-4521-10T1
02-24-2012
NEW JERSEY DENTAL ASSOCIATION, Plaintiff-Appellant, v. BEACH BUM TANNING, Defendant-Respondent.
Arthur Meisel argued the cause for appellant. Mark J. Semeraro argued the cause for respondent (Kaufman, Semeraro, Bern, Deutsch & Leibman, L.L.P., attorneys; Mr. Semeraro, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Fuentes, Harris and Koblitz.
On appeal from Superior Court of New Jersey, Chancery Division, Middlesex County, Docket No. C-158-10.
Arthur Meisel argued the cause for appellant.
Mark J. Semeraro argued the cause for respondent (Kaufman, Semeraro, Bern, Deutsch & Leibman, L.L.P., attorneys; Mr. Semeraro, on the brief). PER CURIAM
Plaintiff New Jersey Dental Association (NJDA) appeals the April 14, 2011 order dismissing its unfair competition complaint against Beach Bum Tanning (Beach Bum) due to a lack of standing. NJDA also appeals the May 13, 2011 order denying reconsideration.
Defendant indicates that Beach Bum Tanning is a trademark owned by Salon Management USA, LLC (Salon). The name has been licensed to independently owned and operated salons in New York and New Jersey, including EBR Beach Spa, LLC, which owns the East Brunswick location.
NJDA is a professional organization representing 4700 New Jersey dentists. In its complaint against Beach Bum, the NJDA alleged that the company provided teeth whitening services without the required license to practice dentistry. NJDA requested only injunctive relief prohibiting the continued offering of such services by a non-dentist. After reviewing the record in light of the contentions advanced on appeal, we reverse and transfer the matter to the New Jersey State Board of Dentistry (State Board) for a determination of whether Beach Bum is engaging in the unauthorized practice of dentistry. N.J.S.A. 45:1-18. If the State Board agrees with NJDA, the organization may then pursue its common-law claim in court.
NJDA attached to its complaint a copy of Beach Bum's online listing, which advertised, "Teeth Whitening service now available. Don't overpay at the dentist. One Hour service now available. Guaranteed 3-5 shades lighter." A certification provided by a managing member of Salon indicates that Beach Bum was not providing a service, but rather was renting its customers an LED light in conjunction with the sale of a teeth whitening product, and that Salon modified its advertisements to delete the term "service" shortly after filing its answer to the complaint on December 3, 2010. Counsel indicates defendant was mistaken in the portion of its answer which admitted paragraph three of the complaint alleging that Beach Bum "offers, advertises and promotes the service of teeth whitening to the public."
NJDA attached a portion of the minutes from a December 5, 2007 open public meeting of the State Board, which indicated that "teeth bleaching is the practice of dentistry and must be performed by a dentist." Both parties agree that the sale of a teeth whitening product, such as those available over the counter in a local pharmacy, is permissible. NJDA alleges that if Beach Bum is engaged in the unlicensed practice of dentistry, it is thereby engaged in unfair competition. See C.R. Bard, Inc. v. Wordtronics Corp., 2 35 N.J. Super. 168, 173-74 (Law Div. 1989).
An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). This includes our obligation to view the record in a light most favorable to the non-moving party. See Estate of Hanges v. Met. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). We accord no special deference to a trial judge's assessment of the documentary record, as the decision to grant or withhold summary judgment does not hinge upon a judge's determinations of the credibility of testimony rendered in court, but instead amounts to a ruling on a question of law. See Manalapan Realty, L.P. v. Manalapan Twp. Comm., 140 N.J. 366, 378 (1995) (noting that no "special deference" applies to a trial court's legal determinations).
Defendant maintains that, as a professional association, NJDA is without standing to pursue relief on behalf of its members. We disagree. We have previously affirmed a decision that a professional association has standing to bring an action on behalf of its members to prevent unfair competition. Feiler v. New Jersey Dental Association, 191 N.J. Super. 426, 431-32 (Ch. Div. 1983), aff'd, 199 N.J. Super. 363 (App. Div.), cert. denied, 99 N.J. 162 (1984).
Defendant also contends that plaintiff is unable to pursue a private remedy for breach of a statute that does not provide for private enforcement. In this regard, we are bound by the Court's decision in R.J. Gaydos Insurance Agency, Inc. v. National Consumer Insurance Co., 168 N.J. 255 (2001). In Gaydos, supra, the Court framed the question as follows:
The questions presented in this appeal are whether plaintiff, R.J. Gaydos Insurance Agency, Inc. (Gaydos) has an implied right of action under [New Jersey Fair Automobile Insurance Reform Act (FAIRA), N.J.S.A. 17:33B-1 to -63] to assert a claim against defendant, National Consumer Insurance Company (NCIC), and whether Gaydos can assert a common-law cause of action for breach of the implied duty of good faith and fair dealing when that claim is based solely on allegations that NCIC violated FAIRA.After deciding that FAIRA did not allow a private enforcement action, the Court nonetheless held that Gaydos could "assert a common-law claim that NCIC breached the implied duty of good faith and fair dealing when NCIC terminated its agency agreement with Gaydos." Id. at 281; see also Campione v. Adamar of New Jersey, Inc., 155 N.J. 245, 265 (1998) (determining that a private right of action existed where common-law claims were based on alleged violations of the regulations of the Casino Control Commission).
[Id. at 258.]
Finding that the Legislature intended to invest the Department of Banking and Insurance (DOBI) with primary authority to implement FAIRA, and because of the special expertise of DOBI, the Gaydos Court directed a remand to DOBI for an administrative determination of whether NCIC violated FAIRA. If that determination was favorable to Gaydos, the Court indicated that Gaydos would then have the option of pursuing its common-law claims. Gaydos, supra, 168 N.J. at 284. If DOBI reached a contrary conclusion, Gaydos would lose its common-law claim as well. Ibid.
The State Board unquestionably has both expertise in the practice of dentistry and the primary authority to police its practice. We therefore transfer this matter to the State Board for an administrative determination of whether or not defendant engaged in the unauthorized practice of dentistry. If the State Board determines that Beach Bum has engaged in the unauthorized practice of dentistry, NJDA may then seek an injunction through the courts by filing a common-law claim for unfair competition.
Reversed and transferred to the State Board. We do not retain jurisdiction.
I hereby certify that the foregoing
is a true copy of the original on
file in my office.
CLERK OF THE APPELATE DIVISION