Request By:
R. B. Thompson, D.M.D.
Executive Director
Kentucky Board of Dentistry
2106 Frankfort Avenue
Louisville, Kentucky 40205
Opinion
Opinion By: Frederic J. Cowan, Attorney General; William B. Pettus, Assistant Attorney General
In your recent letter you asked for the view of this Office concerning the legality of 201 KAR 8:120, a regulation promulgated by the Kentucky Board of Dentistry, pertaining to "special licensure" of members of the faculties of dental schools in Kentucky. This regulation provides in part as follows:
Section 1. Specific authority is granted hereunder to dentists who are graduates of approved dental schools to accept full-time employment without licensure in either of the state's two (2) dental schools or dental hygiene programs, the Department for Human Resources, Bureau of Health Services, or county and city health programs. Dental interns and residents are also included in this category of classification.
Section 2. This courtesy and consideration is granted with the understanding that such personnel will take the next state board examination for licensure.
Section 3. The agreement forms signed by such personnel, hereto attached, shall be a part of this rule and shall be completed as indicated by all personnel licensed under this rule.
It has been the practice of the Kentucky Board of Dentistry to grant a so-called "courtesy license" to members of dental school faculties by granting an ordinary dental license to such faculty members and then requiring those faculty members to sign an agreement pledging to restrict their practice of dentistry to the university setting.
Initially we observe that although 201 KAR 8:120 is entitled "special licensure, " this regulation does not explicitly provide for the granting of a "special" or "courtesy" license, despite the fact that it has been the practice of the Kentucky Board of Dentistry to grant such "courtesy" licenses. The licensure of dentists and other dental professionals in Kentucky is governed by KRS Chapter 313, and the Kentucky Board of Dentistry is the agency of state government established to carry out the provisions of this statute. 201 KAR 8:120, as applied, purports to carve out a "special license" by limiting the general license to practice dentistry authorized under KRS Chapter 313 to activities carried on with in the university setting. KRS Chapter 313 does not provide for such a "special license, " and the sole rationale for granting such a special license derives from 201 KAR 8:120.
In regard to administrative agencies in Kentucky, the courts have determined that they are:
creatures of statutes and must find within the statute warrant for the exercise of any authority which they claim. [citation omitted] The Department [now Natural Resources Cabinet] can neither add to the requirements established by the legislature for the issuance of a permit nor can they exercise authority not vested in it. . . .
Department for Natural Resources and Environmental Protection v. Stearns Coal and Lumber Company, Ky., 563 S.W.2d 471, 473 (1978).
The above-stated principle found in the Stearns Coal and Lumber Company case has long been recognized in Kentucky. In fact, a decision that is close on point in regard to your question and which was cited for authority in the Stearns case is
Johnson v. Correll, Ky., 332 S.W.2d 843 (1960). In that case, the question was whether the Kentucky State Board of Embalmers and Funeral Directors had the authority to revoke the certificate of registration of an apprentice funeral director. The statute in question provided for that board to revoke, suspend, or refuse to issue or renew any license issued to a funeral director. The court in Johnson held that the board lacked the authority to revoke the certificate since the statute at issue spoke only to a license of a funeral director. According to the court:
The board here was authorized only to administer the law as written. It was not empowered to add to or subtract from the statute. Powers not conferred are just as plainly prohibited as those which are expressly forbidden. When powers are given to be performed in a specified manner, there is an implied restriction upon the exercise of those powers in excess of the grant. . . .
Id. at 845.
The court went on to hold that the legislature had clearly defined by statute the class of persons over which the board had authority and what actions could be taken against those individuals. The court determined that the statute failed to provide the board with any authority to revoke the certificate. Id .
In applying the principles contained in the Johnson and Stearns decisions to your question, one must first review the statute at issue (KRS Chapter 313) to determine whether the Kentucky Board of Dentistry possesses the statutory authority to restrict the practice of dentistry under a general dentistry license to the university setting. As has been previously stated, KRS Chapter 313 makes no reference to a "special license, " nor does the statute make any provision for limiting a general license to practice dentistry for school purposes or for any other purposes other than disciplinary actions carried out by the Board pursuant to statutory authority contained in KRS 313.150 through 313.180.
Since the Kentucky Board of Dentistry does not possess the statutory authority to promulgate a regulation limiting a general license to practice dentistry to a university setting, it is the view of this Office that 201 KAR 8:120, as applied, impermissibly exceeds the statutory authority possessed by the Kentucky Board of Dentistry.