Colorado State Bd. of Medical Examiners v. Hoffner

• Decision Date: 26 March 1992
• Docket Number: No. 90CA1938,90CA1938
• Citation: 832 P.2d 1062
• Parties: COLORADO STATE BOARD OF MEDICAL EXAMINERS, Complainant-Appellee, v. Mary M.M. HOFFNER, Respondent-Appellant. . V
• Court: Colorado Court of Appeals

Page 1062

832 P.2d 1062

COLORADO STATE BOARD OF MEDICAL EXAMINERS, Complainant-Appellee, v. Mary M.M. HOFFNER, Respondent-Appellant.

No. 90CA1938.

Colorado Court of Appeals Div. V.

March 26, 1992.

Rehearing Denied May 7, 1992.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., James F. Carr, Asst. Atty. Gen., Denver, for complainant-appellee.

Haddon, Morgan & Foreman, P.C., Lee D. Foreman, Rachel A. Bellis, Denver, for respondent-appellant.

Opinion by Judge DAVIDSON.

Respondent, Mary M.M. Hoffner, appeals from the order of the Colorado State Board of Medical Examiners revoking her license to practice medicine. We affirm.

Respondent became licensed to practice medicine in Colorado in June 1963. In 1984, she was convicted of several counts of unlawful distribution of controlled substances and illegal prescriptions. She was sentenced to one year in prison and five years probation and her medical license was suspended.

In 1986, the Board reinstated her license pursuant to an agreement with respondent that, among other things, her practice would be monitored by a licensed physician for a period of five years. In 1987, respondent was convicted of driving under the influence of alcohol. As part of her sentence, she attended alcohol treatment classes, received out-patient therapy, and took monitored antabuse.

In 1990, based upon a report from her practice monitor that respondent had temporarily closed her practice in order to attend an in-patient substance abuse program in Virginia, the inquiry panel of the Board summarily suspended respondent's license and authorized the Attorney General to file a complaint with the Board alleging that she had committed unprofessional conduct in violation of §§ 12-36-117(1)(i) and (o), C.R.S. (1991 Repl.Vol. 5B).

Respondent denied the allegations and the matter was referred to an Administrative Law Judge (ALJ) for hearing and an initial decision in accordance with § 12-36-118, C.R.S. (1991 Repl.Vol. 5B) and § 24-4-105, C.R.S. (1988 Repl.Vol. 10A). Following an evidentiary hearing, the ALJ found that respondent's conduct constituted unprofessional conduct as proscribed by § 12-36-117(1)(i) regarding "habitual intemperance." The ALJ determined that the charge of unprofessional conduct under § 12-36-117(1)(o) (inability to practice medicine with skill and safety) had not been proven and recommended that respondent be placed on probation for three years. On review, the Board affirmed the ALJ's findings but rejected the ALJ's recommendation as to the appropriate sanction and revoked her license. This appeal followed.

I.

A.

Respondent asserts that the term "habitual intemperance," as set forth in § 12-36-117(1)(i) is unconstitutionally vague. Specifically, although she agrees that the term refers to alcohol consumption, she argues that the statute is vague as to what manner of consumption is prohibited. We disagree with her contention.

A statute is not void for vagueness if it fairly describes the conduct forbidden, and persons of common intelligence can readily understand its meaning and application. Eckley v. Colorado Real Estate Commission, 752 P.2d 68 (Colo.1988).

Statutory terms need not be defined with mathematical precision. Rather, "the statutory language must be sufficiently specific to give fair warning of the prohibited conduct, but must also be sufficiently general to address the problem under varied circumstances and during changing times." Davis v. State Board of Psychologist Examiners, 791 P.2d 1198 (Colo.App.1989). Also, words and phrases used in statutes are to be considered in their generally accepted meaning, and the court has a duty to construe the statute so that it is not void for vagueness when a reasonable and practical construction can be given to its language. People v. Rosburg, 805 P.2d 432 (Colo.1991).

Applying these rules of construction, we conclude that "habitual intemperance" is not an unconstitutionally vague term. We note, first, that the term is used in numerous Colorado licensing statutes. Although the contexts vary slightly, in each statute, the term is used in relation to the repeated and excess use of alcohol or drugs. Compare, e.g., § 12-25-208(1)(i), C.R.S. (1991 Repl.Vol. 5A) (land surveyor can be disciplined for "habitual intemperance with respect to or excess use of any habit-forming drug ... any controlled substance ... or any alcoholic beverage") with § 12-40-108(1)(d), C.R.S. (1991 Repl.Vol. 5B) (applicant for optometry license must not be "addicted to the use of any controlled substance, or [show] habitual intemperance in the use of alcoholic liquors"). See also § 12-2-123(1)(p), C.R.S. (1991 Repl.Vol. 5A) (accountants); § 12-4-111(2)(j), C.R.S. (1991 Repl.Vol. 5A) (architects); § 12-22-125(2)(a)(II), C.R.S. (1991 Repl.Vol. 5A) (druggists); § 12-25-108(1)(i), C.R.S. (1991 Repl.Vol. 5A) (engineers); § 12-32-107(3)(f), C.R.S. (1991 Repl.Vol. 5A) (podiatrists); § 12-33-117(1)(e), C.R.S. (1991 Repl.Vol. 5A) (chiropractors); § 12-35-118(1)(e), C.R.S. (1991 Repl.Vol. 5A) (dentists); § 12-43-704(1)(e), C.R.S. (1991 Repl.Vol. 5B) (psychotherapists); § 12-58-110(1)(l ), C.R.S. (1991 Repl.Vol. 5B) (plumbers); cf. Colorado Rules of Judicial Discipline 5(a)(3).

The generally accepted meaning of "intemperance" is excess or lack of moderation in an action, and an "habitual" action is one which is "by force of habit." See Webster's Third New International Dictionary Unabridged 1175, 1017 (1986). A "habit" is "an acquired or developed mode of behavior or function that has become nearly or completely involuntary." See Webster's Third New International Dictionary Unabridged 1017 (1986). And, although in its modern day usage "habitual intemperance" can refer either to the use of alcohol or drugs, the term itself is archaic and has been used synonymously with excessive alcohol consumption. See Aetna Life Insurance Co. v. Davey, 123 U.S. 739, 8 S.Ct. 331, 31 L.Ed. 315 (1887) ("the term 'habitual intemperance' characterizes one who uses liquors excessively").

Accordingly, as used in the Medical Practices Act, we conclude that the term "habitual intemperance" refers to repeated, uncontrolled, excessive drinking. See In re Mikesell, 396 Mich. 517, 243 N.W.2d 86 (1976) (although "habitually intemperate" is "capable of being defined in several ways, [the] only applicable meaning is the abuse of alcohol").

We also conclude that the term "habitual intemperance" is sufficiently specific so that persons licensed to practice medicine can distinguish between permissible and impermissible conduct. See Kibler v. State, 718 P.2d 531 (Colo.1986). Repeated, uncontrolled, excessive drinking is objectively recognizable, identifiable behavior; we disagree with respondent that the term fails to describe adequately the standards to which a physician must conform his or her conduct. See Colorado Dog Fanciers, Inc. v. Denver, 820 P.2d 644 (Colo.1991) ("Legislation is entitled to a presumption of constitutionality and is not automatically invalidated as vague simply because difficulty is found in determining whether certain marginal offenses fall within its language.").

B.

Insofar as respondent also argues that the term "habitual intemperance" is unconstitutionally vague as applied to her, we disagree. The statute gives fair notice that habitual intemperance is unprofessional conduct and her conduct fell within the prohibition. As the ALJ concluded "there is no real dispute in the record that respondent was habitually drinking to excess from the fall of 1987 to January 29, 1990."

Based upon the ALJ's detailed factual findings, we find no denial of due process in the application of the statutory standards to the evidence adduced at the hearing. As applied to the respondent, the statute is not vague. See People v. Rosburg, supra; Kibler v. State, supra ("In light of the fact that the appellant's conduct falls squarely within the prohibitions of [the statute], we are at a loss to discern any way in which [the provision] could be unconstitutionally vague as applied to the circumstances of this case.").

II.

In urging a reversal of the Board's order of revocation, respondent argues three procedural errors: (1) she did not receive proper notice of the charges; (2) the Board improperly based its decision on facts not found by the ALJ; and (3) the Board considered an improper pleading in its review of the ALJ's decision.

A.

The complaint filed by the Attorney General alleged that respondent's enrollment in the substance abuse treatment program indicated "habitual intemperance" as proscribed by § 12-36-117(1)(i). The ALJ's ultimate conclusion of unprofessional conduct adopted by the Board was based in part, however, on respondent's prior alcohol-related conduct. Respondent contends that the complaint did not give adequate notice that the charges included this prior conduct in violation of due process of law. We disagree.

The essence of due process is fair procedure, but no particular or perfect procedure is required so long as the elements of opportunity for hearing and judicial review are present. Norton v. Colorado State Board of Medical Examiners, 821 P.2d 897 (Colo.App.1991). Due process is satisfied by providing adequate notice of opposing claims, a reasonable opportunity to defend against those claims, and a fair and impartial decision. Davis v. State Board of Psychologist Examiners, supra.

We find no due process violation. Here, the record indicates that in response to respondent's motion in limine to restrict certain evidence of prior conduct, portions of the Attorney General's proffered evidence were either limited to the issue of sanctions by agreement of the parties or excluded by the ALJ. Respondent does not complain now that the ALJ erred in so ruling.

Moreover, as we have determined, the charge of "habitual intemperance," by definition refers to a course of conduct, and the circumstances of re...