Magleby v. State ex rel. Department of Business Regulations & Department of Registration , 564 P.2d 1109 ( 1977 )

ELLETT, Chief Justice:

The appellant as plaintiff below filed a complaint seeking to have the Court declare unconstitutional a regulation promulgated by the defendants. Both parties moved for a summary judgment on the matter, and the trial court granted the motion of the defendants holding that the regulations in question are a reasonable restraint and regulation of a recognized profession.

The appellant is a licensed marriage and family counselor in Utah and as such he is subject to the provisions of the Marriage and Counselors Act as set out in Chapter 124, Laws of Utah, 1973, Title 58, Chapter 39, Utah Code Annotated, 1953, Replacement Volume 6A. A committee of five persons from the counseling field who have had at least seven years of experience in the profession is provided for in Section 7 of the above cited statute. Subsection (5) thereof provides for the Committee to promulgate standards for counselors and “adopt other rules and regulations as may be necessary to carry out the provisions of this act.”

One of the rules adopted by the Committee gives rise to this appeal. It is as follows:

3910. Improper Advertising. For the purposes of Section 58-39-3(2), Utah Code Annotated, 1953, as amended, improper advertising in connection with the practice of marriage, family and child counseling shall include, among other things, the following:

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(2) Making any statement in advertising which would or may tend to mislead the public as to the individual’s competence, education, qualifications or experience.

(3) Making of other false or misleading claims in advertising.

(4) Advertising contrary to the code of ethics of the American Association of Marriage and Family Counselors. (See attached Appendix).

The Code of Ethics of the American Association of Marriage and Family Counselors provided:

1. TELEPHONE DIRECTORY LISTINGS

Yellow Pages. All listings should be governed by the principles of dignity, modesty and uniformity.

A. Special type (boldface, etc.) and lined boxes or any other technique tending to make one individual or firm’s listing stand out from other listings in the directory is a breach of professional ethics.

B. A proper listing will include no more than the following:

(1) Name

(2) Highest earned relevant degree (one only)

(3) State licensure (including license No.)

(4) AAMFC clinical membership (Dip-lómate status if attained)

(5) Address

(6) Telephone number

(7) Designated specialty

C. Office hours (or the statement “By Appointment Only”) may be listed if permitted by the local telephone company.

D. Any title including words such as “Institute,” “Center,” “Clinic,” “Service” is acceptable only if a group practice includes at least three professionals. Other AAMFC members of such a group may choose to be listed under the identifying group practice name as well as separately in the proper alphabetical location.

The plaintiff herein caused to be run in the yellow pages of the telephone directory the following advertisement:

Two problems arise in connection with this advertisement. First, it clearly violates l.A. of the Code of Ethics of the American Association of Marriage and Family Counselors in that it is set out in a lined box that clearly makes the name of plaintiff stand out from the others. . Second, the plaintiff used the word “Center,” although he was a lone counselor in his place of business in violation of l.D. of the Code of Ethics of the American Association of Marriage and Family Counselors.

He defends against the latter charge by claiming that his place of business is a center for other counselors to conduct professional training seminars to exchange ideas and information within the professional group.

The trouble with his assertion is that the advertisement was not directed to those in his profession who might wish to have a seminar but rather was directed to the public at large.

The trial court’s opinion was stated as follows:

The rules and regulations with regard to the advertising by a marriage and family counselor which plaintiff complains of are a reasonable exercise of defendants’ authority resting on a rational basis to protect the public from advertising which is or tends to be misleading, and plaintiff’s claim of denial of free speech and of property without due process of law is without merit.

We agree with the ruling made by the trial court and therefore affirm the judgment. No costs are awarded.

CROCKETT and HALL, JJ., concur.