Opinion
No. 686 C.D. 2013
12-16-2013
Anthony Louis Monteleone, D.D.S., Petitioner v. Bureau of Professional and Occupational Affairs, State Board of Dentistry, Respondent
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE ROBERT SIMPSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE McCULLOUGH
Anthony Louis Monteleone, D.D.S. (Petitioner), petitions, pro se, for review of the March 26, 2013 final adjudication and order of the State Board of Dentistry (Board), which adopted a hearing examiner's findings of fact and conclusions of law, ordered his license suspended for no less than five years, and imposed a $5,000.00 civil penalty pursuant to the Dental Law. We affirm.
Act of May 1, 1933, P.L. 216, as amended, 63 P.S. §§120 - 130k.
Facts and Procedural History
On February 22, 2012, Petitioner was arrested and charged with two counts of possession of a controlled substance, misdemeanor violations under section 13(a)(16) of the Controlled Substance, Drug, Device, and Cosmetic Act, and one count of disorderly conduct, a summary violation of section 5503(a)(4) of the Pennsylvania Crimes Code (Code). Petitioner submitted to drug screens on March 9, 15, 22, and 26 of 2012, and the test results were negative. The criminal charges were dismissed, and Petitioner pleaded guilty to one count of disorderly conduct. (Findings of Fact Nos. 17-18, 20-21.)
Act of April 14, 1972, P.L. 233, as amended, 35 P.S. §780-113(a)(16).
18 Pa.C.S. §5503(a)(4).
The Commonwealth filed a petition for immediate temporary suspension of Petitioner's license to practice dentistry, which set forth Petitioner's history of substance abuse as follows. On September 24, 1998, Petitioner pleaded guilty to one count of criminal conspiracy, a felony violation of section 903 of the Code, and was sentenced to serve two years' probation. On December 10, 1998, the Board approved a consent agreement and order, suspending Petitioner's license for no less than three years, with the suspension stayed in favor of probation for no less than three years pending his participation in the Disciplinary Monitoring Unit (DMU). On September 29, 2006, Petitioner pleaded guilty to one count of criminal conspiracy, a misdemeanor violation of section 903 of the Code, and was sentenced to serve six months' probation and continued counseling. On July 13, 2007, the Board approved a consent agreement and order, which suspended Petitioner's license for no less than three years with the suspension stayed in favor of probation for no less than three years pending his participation in the DMU. On March 7, 2008, the Board approved another consent agreement and order suspending Petitioner's license for no less than three years with a period of active suspension for six months and with the remaining period of the suspension stayed in favor of probation pending his participation in the DMU. The Board issued this consent agreement and order because Petitioner failed to report for three drug screens in 2007 as part of his mandatory participation in the DMU. (Reproduced Record (R.R.) at 31a-33a.)
18 Pa.C.S. §903.
On March 13, 2012, the Probable Cause Screening Committee of the Board ordered an immediate temporary suspension of Petitioner's license and directed that Petitioner be examined by Robert Wettstein, M.D. (Dr. Wettstein). Dr. Wettstein diagnosed Petitioner as suffering from cocaine dependence and marijuana abuse, and he recommended that Petitioner is safe to practice dentistry only if he participates in a structured monitoring and treatment program for the next three to five years. On March 24, 2012, Petitioner also attended an examination by John L. Masella, LPC, NCC, CCS, CCDP, CCPG (Dr. Masella), a Professional Health Monitoring Program (PHMP)-approved provider, who indicated that Petitioner suffers from cocaine dependence in remission and marijuana abuse in remission. Dr. Masella opined that Petitioner would be safe to practice dentistry while participating in the PHMP for three years. (Findings of Fact Nos. 22-23, 26-28.)
On June 4, 2012, the Commonwealth filed an order to show cause why the Board should not suspend or revoke Petitioner's professional license, alleging that Petitioner is unfit to practice dentistry with reasonable skill and safety because of excessive use of controlled substances. (R.R. at 1a-7a.) The order for immediate temporary suspension and the order to show cause were consolidated for the purposes of holding one hearing. (R.R. at 143a-44a.) Subsequently, Petitioner waived his right to a hearing, and the matter was decided based on the Stipulation of the Parties and evidence submitted to the hearing examiner, including documentation of Petitioner's disciplinary record and the expert reports of Dr. Wettstein and Dr. Masella. (R.R. at 152a-323a.)
The record reflects that Petitioner was represented by counsel throughout the prior proceedings before the Board.
On November 2, 2012, the hearing examiner issued a proposed adjudication and order suspending Petitioner's license for no less than six years, with the first year of the suspension active and the remaining period of the suspension stayed, subject to Petitioner's participation in the PHMP's DMU. The hearing examiner found that the Stipulation of the Parties and the experts' opinions constituted sufficient evidence to support a prima facie case against Petitioner. The hearing examiner concluded that until Petitioner re-enrolled in a monitoring program, he did not possess the requisite skill and safety to practice dentistry and therefore the temporary suspension was appropriate. Further, the hearing examiner concluded that Petitioner's extensive criminal and disciplinary history, along with the experts' opinions, support a finding that Petitioner is unable to practice dentistry with reasonable skill and safety to patients by reason of his use of controlled substances, specifically marijuana and cocaine.
In his proposed adjudication, the hearing examiner specifically stated that "the State Board of Dentistry has announced that it intends to review this proposed adjudication and order." (R.R. at 350a.) Neither party filed exceptions, and the Board reviewed the entire record at its scheduled meeting on December 14, 2012. On March 26, 2013, the Board issued a final adjudication and order, adopting the hearing examiner's findings of fact, conclusions of law, and all but the last full paragraph of the hearing examiner's discussion, modifying the hearing examiner's proposed sanction. The Board ordered Petitioner to pay a $5,000.00 civil penalty and serve a five-year active suspension after which he may petition the Board for reinstatement, provided that he can demonstrate to the Board that he has completed 60 months of sustained recovery and that he is fit to practice with reasonable skill and safety to patients. The Board stated that, given Petitioner's long-standing history involving illegal drugs and participation in the PHMP's DMU, its discipline of Petitioner must have a deterrent effect and a punishment component in order to send a clear message to Petitioner and to the citizens of the Commonwealth about the danger of his behavior. The Board also noted that while it gives great weight to the opinion of its experts, it is not bound by these opinions when selecting an appropriate sanction.
On appeal to this Court, Petitioner argues that: (1) the hearing examiner's decision became final when the Board failed to initiate its review of the hearing examiner's proposed adjudication and order within ten days; and (2) the Board abused its discretion in imposing an excessive sanction that was not supported by substantial evidence. We disagree.
Our scope of review of the Board's decision is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the findings of fact are supported by substantial evidence. Mostatab v. State Board of Dentistry, 881 A.2d 1271, 1273 n.2 (Pa. Cmwlth. 2005).
Discussion
Board's Initiation of Review
Petitioner first contends that the Board failed to initiate a review of the hearing examiner's proposed adjudication and order within ten days following the expiration of the time for filing exceptions and thus the proposed adjudication and order should have been made final. Section 35.226(a)(1)-(4) of the General Rules of Administrative Practice and Procedure (General Rules) defines final orders as follows:
(a) Adjudications of an agency head shall be final orders, subject only to application for rehearing, if any, provided for by the statute under which the proceeding is initiated and conducted, except proposed regulations that may be issued in rulemaking. Final orders shall include:
1 Pa. Code §35.226(a)(1)-(4) (emphasis added). Section 35.211 of the General Rules provides the time for filing exceptions as follows:(1) Adjudications by the agency head in proceedings in which the agency head has presided at the reception of evidence.
(2) Adjudications by the agency head upon appeal of proposed reports by participants, by filing exceptions in the manner and time provided by §35.211 (relating to procedure to except to proposed report), or upon review initiated by the agency head within 10 days next following the expiration of the time for filing exceptions under the section, or another time as the agency head may fix in specific cases.
(3) Proposed reports, upon the expiration of the time provided for an appeal to or review by the agency head without the appeal or review having been initiated.
(4) Adjudications by the agency head in proceeding in which a presiding officer has presided at the reception of evidence and which are not subject to §35.202 (relating to proceedings in which proposed reports are prepared).
A participant desiring to appeal to the agency head shall, within 30 days after the service of a copy of a proposed report or such other time as may be fixed by the agency head, file exceptions to the proposed report or part thereof in a brief (designated "brief on exceptions"). "Briefs opposing exceptions" may be filed in response to briefs on exceptions within 20 days after the time limited for the
filing of briefs on exceptions or such other time as may be fixed by the agency head. No further response will be entertained unless the agency head, with or without motion, so orders.1 Pa. Code §35.211.
Petitioner mistakenly calculates that the Board had until November 12, 2012, ten days after the proposed adjudication and order was issued, to initiate review. (Petitioner's brief at 12.)
Petitioner's reliance on Kalin v. Pennsylvania Securities Commission, 805 A.2d 1258 (Pa. Cmwlth. 2002), to support his argument that the hearing examiner's order became final prior to the Board's review is misplaced. In Kalin, the Pennsylvania Securities Commission (Commission) Staff (Staff) issued an order to show cause charging the petitioner, a registered securities agent, with violations of the Pennsylvania Securities Act of 1972 (Act). A hearing examiner held a hearing and issued a proposed order imposing sanctions on the petitioner. Both Staff and the petitioner filed exceptions to the proposed order. The Commission issued a final opinion and order, imposing its own sanctions on the petitioner.
Act of December 5, 1972, P.L. 1280, as amended, 70 P.S. §§1-101-1-703.
On appeal to this Court, the petitioner argued that Staff waived any argument concerning two of the petitioner's clients because Staff failed to file exceptions regarding these issues. We noted that a party intending to appeal a proposed order must file exceptions to the agency head within 30 days of service of the copy of the proposed report under section 35.211 of the General Rules. We also noted that section 35.226(a)(2) of the General Rules provides that a proposed order becomes final when exceptions are filed within the designated time limits, when the agency head initiates review of the proposed order within ten days following the expiration of the time for filing exceptions, or at another time as the agency head may fix. We concluded as follows:
The plain language of Section 35.226(a)(2) means that the adjudication becomes final after an appeal based upon either the filing of exceptions or upon review initiated by the agency head, not both. To hold otherwise, would enable an agency head to raise and review any issues not advocated by its own agency by way of exceptions.Id. at 1264.
We explained in Kalin that the parties had filed exceptions, review of the proposed order was initiated by the exceptions and not by the Commission, and the Commission was bound to address only the issues raised by exceptions. Moreover, we stated that even if the Commission could initiate a review of the proposed order after the parties filed exceptions, the Commission did not notify the parties of its intent to review the proposed order until its February 20, 2001 order granting oral argument, outside the time limit set forth in section 35.226(a)(2) of the General Rules. We reasoned that "[c]learly under the plain language of Section 35.226(a)(2), if the parties choose to file exceptions to a proposed report, an agency head . . . cannot arbitrarily choose to initiate a review outside the time limits if the Commissioner later believes that its Staff has not timely raised an issue by exception." Id. Thus, we concluded that Staff waived any arguments on appeal that it did not raise in its exceptions.
The facts of this case are distinguishable. In contrast to the facts in Kalin, the Board's intention to review the proposed adjudication and order was announced in the hearing officer's proposed adjudication, well before the expiration of time permitted under section 35.226(a)(2), and well before the expiration of time to file exceptions under section 35.211 of the General Rules. Petitioner had until December 3, 2012, to file exceptions to the proposed adjudication and order and declined to do so. Under section 35.226(a)(2) of the General Rules, the Board could initiate review within ten days from December 3rd or at another scheduled time. After announcing its intent to review the proposed adjudication and order, and after the time for filing exceptions had passed, the Board completed its review on December 14, 2012, the date fixed for its next regularly scheduled meeting. Under these circumstances, we conclude that the proposed adjudication and order had not become final prior to the Board's review.
Further, the Board, at most, reviewed the proposed adjudication and order one day beyond the 10-day window of review. "An order of an administrative agency will not be disturbed on appeal for harmless error." Pennsylvania Game Commission v. Bowman, 474 A.2d 383, 388 (Pa. Cmwlth. 1984). Petitioner does not allege that he was harmed by review of the proposed adjudication and order that occurred only one day late. Petitioner had the opportunity to present the facts of the case and his argument before the hearing examiner and an opportunity to file exceptions to the Board. Thus, his due process rights were not violated.
Excessive Sanction
Next, Petitioner contends that the Board abused its discretion in imposing an excessive sanction that was not supported by substantial evidence. In pertinent part, section 4.1 of the Dental Law gives the Board the authority to impose sanctions as follows:
Added by the Act of Dec. 20, 1985, P.L. 513, as amended, 63 P.S. §123.1.
(a) The board shall have authority, by majority action, to refuse, revoke or suspend the license of any dentist . . . for any or all of the following reasons:
* * *
(11) Being unable to practice dentistry . . . with reasonable skill and safety to patients by reason of illness, drunkenness, excessive use of controlled substances, chemicals or any other type of material, or as the result of any mental or physical condition.
* * *
(b) When the board finds that the license or certificate of any person may be refused, revoked or suspended under the terms of this section, the board may:
63 P.S. §123.1(a)(11), (b)(3).
* * *
(3) Revoke, suspend, limit or otherwise restrict a license or certificate as determined by the board.
In addition, section 5(b)(4) of the Licensing Boards and Commissions Act, Act of July 2, 1993, P.L. 345, as amended, 63 P.S. §2205(b)(4), provides for the imposition of civil penalties in pertinent part as follows:
(b) Additional powers.--In addition to the disciplinary powers and duties of the boards and commissions within the Bureau of Professional and Occupational Affairs under their respective practice acts, boards and commissions shall have the power, respectively:
* * *
(4) To levy a civil penalty of not more than $10,000 per violation on any licensee, registrant, certificate holder, permit holder or unlicensed person who violates any provision of the applicable licensing act or board regulation.
Contrary to Petitioner's assertions, we conclude that the Stipulation of the Parties and other evidence filed with the hearing examiner, which sets forth Petitioner's extensive criminal history and related licensure disciplinary record, constitutes substantial evidence to support the Board's decision. (See R.R. at 152a-323a.) Petitioner's 18-year criminal and disciplinary history includes one conviction of tax evasion and a Board's consent agreement and order sanctioning Petitioner for the conviction; a Board's consent agreement and order sanctioning Petitioner for practicing dentistry on a lapsed license; and two criminal convictions, not including the most recent conviction, involving drug abuse and subsequent consent agreement and orders issued by the Board sanctioning Petitioner accordingly. Though the 2012 drug charges were dismissed, the Board may initiate administrative proceedings against Petitioner concerning the same underlying conduct. Spence v. Pennsylvania Game Commission, 850 A.2d 821, 823 (Pa. Cmwlth. 2004). Further, the expert witnesses' opinions established a pattern of dependency and abuse of cocaine and marijuana by Petitioner.
In Spence, the Pennsylvania Game Commission (Commission) issued an order to show cause as to why it should not revoke the petitioner's two deer propagation permits. The Commission determined that just cause existed to recall the petitioner's permits. At the hearing, the hearing examiner recommended that the petitioner's permits be recalled until the time when the Board determined the petitioner capable of keeping adequate records. By letter, the executive director of the Commission informed the petitioner that he agreed with the hearing examiner and thus recalled the petitioner's permits.
On appeal to this Court, the petitioner argued, in pertinent part, that collateral estoppel barred recall of his permits because the court of common pleas found him not guilty of violating sections of the Pennsylvania Game and Wildlife Code (Code), 34 Pa.C.S §§1012965. Citing Pennsylvania State Police v. Swaydis, 504 Pa. 19, 470 A.2d 107 (1983), we noted the wellestablished principle that "resolution of criminal charges in favor of the criminal defendant does not bar subsequent civil or administrative proceedings concerning the same underlying misconduct." Spence, 850 A.2d at 823 (internal citations omitted). Thus, because the Code provided for both criminal and civil penalties, we concluded that the Commission properly initiated an administrative proceeding against the petitioner that resulted in the recalling of his permits.
The Board is responsible for the investigation and discipline of dentists pursuant to the Dental Law. Ben v. Schwartz, 556 Pa. 475, 479, 729 A.2d 547, 549 (1999). "In the absence of bad faith, fraud, capricious action or abuse of power, reviewing courts will not inquire into the wisdom of the agency's action or into the details or manner of executing agency action." Slawek v. State Board of Medical Education and Licensure, 526 Pa. 316, 322, 586 A.2d 362, 365 (1991). The Board has the authority to impose sanctions for violations of the Dental Law, and our inquiry is not whether the penalty is reasonable, but whether the penalty is in accordance with the Dental Law. Zook v. State Board of Dentistry, 683 A.2d 713, 715 (Pa. Cmwlth. 1996). Thus, this Court will not "substitute its judgment for that of the Board," even if a Board's sanction appears to be unreasonably harsh. Id.
In Zook, the petitioner performed tooth extractions within his Nebraska Amish community because their religion forbids obtaining health insurance. The Bureau of Professional and Occupational Affairs issued an order to show cause, charging the petitioner with practicing dentistry without a license. The petitioner waived his right to a hearing, and the Board found that the petitioner practiced dentistry without a license. The Board imposed the maximum civil penalty on the petitioner.
On appeal to this Court, the petitioner argued that, because his practice only included members of his community, there was no compelling interest for the state and thus an accommodation should have been made for his religious beliefs. We affirmed the Board's order, noting that the petitioner's religious beliefs only prohibited the purchase of health insurance and not the purchase of health care services. While we stated that the maximum civil penalty seemed unreasonably harsh, we held that the penalty was in accordance with the Dental Law, and thus absent bad faith, fraud, capricious action, or abuse of power, we may not substitute our judgment for that of the Board's.
Moreover, although the hearing examiner recommended lesser sanctions against Petitioner than those imposed by the Board, the Board is not bound by the proposed sanctions. See McDermond v. Foster, 561 A.2d 70, 72 (Pa. Cmwlth. 1989) (holding that absent a requirement that the agency be bound by the decision of a hearing examiner, the agency is free to make its own findings of fact). In McDermond, we relied on our holding in Fitz v. Intermediate Unit No. 29, 403 A.2d 138 (Pa. Cmwlth. 1979), where we stated as follows:
[T]he hearing examiner is only a designee of the agency head, charged with the responsibility to conduct a hearing, hear evidence, make findings, and submit a Proposed report to the agency head concerning the disposition of the case. See 1 Pa.Code ss 35.185, .187, .205. The agency head then takes the final agency action. See 1 Pa.Code s 35.226. Absent a requirement that the agency head is bound by the decision of the hearing examiner, the agency head is free to make his own determination and findings subject to review by [the Commonwealth] Court. See 2 Pa.C.S. s 704.Id. at 141; see also Highway News, Inc. v. Pennsylvania Department of Transportation, 789 A.2d 802, 810 n.13 (Pa. Cmwlth. 2002) ("[T]he Hearing Examiner is only the designee of the Secretary [of Transportation], and the Secretary is the ultimate authority who takes the final agency action which is subject to appeal to this Court. As a result, the Secretary is the ultimate finder of fact.").
Our review of the record confirms that the Board's determination is supported by substantial evidence and that the sanction imposed is in accordance with the Dental Law.
Accordingly, we affirm.
/s/_________
PATRICIA A. McCULLOUGH, Judge ORDER
AND NOW, this 16th day of December, 2013, the March 26, 2013 final order of the State Board of Dentistry is affirmed.
/s/_________
PATRICIA A. McCULLOUGH, Judge
Id.