Cottingham v. South Carolina Department of Labor, Licensing and Regulation
| Decision Date | 16 January 2013 |
| Docket Number | 2013-UP-027 |
| Parties | John D. Cottingham, DVM, Appellant. v. South Carolina Department of Labor, Licensing and Regulation, South Carolina Board of Veterinary Medical Examiners, Respondent. Appellate Case No. 2011-192826 |
| Court | Court of Appeals of South Carolina |
UNPUBLISHED OPINION
Heard December 11, 2012
Appeal From The Administrative Law Court S. Phillip Lenski Administrative Law Judge.
Brian S. Wade, of Murrells Inlet, for Appellant.
Patrick D. Hanks, of Columbia, for Respondent.
Cottingham practiced veterinary medicine at the Village Veterinary Clinic in Myrtle Beach, South Carolina. Between March 31 1997, and December 31, 2000, Cottingham failed to remit $66 887 in payroll taxes to the Internal Revenue Service. A federal grand jury later indicted Cottingham for attempting to evade income tax assessment and for failing to collect account for, and pay over such taxes. In response, Cottingham pled guilty to both felony charges and the federal district court accepted his plea.
Subsequently, the Board of Veterinary Medical Examiners (Board) initiated disciplinary action against Cottingham, alleging he used a false document in the practice of veterinary medicine, obtained fees under false or deceptive circumstances, engaged in unprofessional conduct, and pled guilty to a felony or crime of moral turpitude, all in violation of the laws and regulations governing veterinary medicine practice. Prior to any determination of this disciplinary action, the Board received a complaint that Cottingham provided substandard veterinary medical care to a diabetic feline. The Board then amended the disciplinary action to include, in addition to all prior allegations, charges that Cottingham's related treatment and records did not meet the appropriate standard of care.
Opting to not contest the allegations, Cottingham waived formal hearing procedures and entered into a Memorandum of Agreement and Stipulations (MOA) with the Board. Therein, Cottingham stipulated, inter alia: to pleading guilty to a felony; to not meeting the appropriate standard of care for treatment of the diabetic feline; and to not maintaining adequate medical records. Cottingham also acknowledged these acts constituted grounds for sanction.
Relying upon the conduct admitted within the MOA, the Board concluded Cottingham violated section 40-69-110(A)(6), (7), (11), (12), and (24) of the South Carolina Code (Supp. 2007) and 27 S.C. Code Ann. Regs. 120-8 (2007). While the Board's Final Order required imposition of a public reprimand, an indefinite suspension of Cottingham's veterinary license, and a $638 fine, it also expressly permitted him to petition for reinstatement after: (1) satisfactorily completing thirty hours of continuing education, including classes on feline diabetes and medical record keeping; (2) submitting a written report on how this education would have changed his care of the diabetic feline; (3) making his clinical records subject to inspection; and (4) submitting an updated mental health evaluation.
Cottingham timely appealed the Final Order to the Administrative Law Court (ALC), arguing: (1) the record does not support the Board's conclusions; (2) the Board exceeded its authority in considering his felony convictions and in imposing sanctions; and (3) the imposed sanctions are arbitrary and capricious.
First, the ALC found that Cottingham did not preserve his evidentiary argument for appeal because he did not challenge the evidence before the Board. Second, the ALC found Cottingham's argument that the imposed sanctions exceeded the Board's statutory authority amounted to a subject matter jurisdiction challenge, which could, however, be raised initially on appeal. Nonetheless, the ALC concluded that the Board did not exceed its jurisdiction in considering Cottingham's felony conviction or in requiring the continuing education, a related written report, and an updated mental health evaluation. Finally, the ALC found the imposed sanctions were not arbitrary and capricious.
Cottingham now argues the ALC erred in affirming: (1) the Board's consideration of Cottingham's convictions for tax evasion; and (2) all imposed sanctions.
As to Cottingham's first argument, the Board may discipline licensees upon determining "that one or more grounds for discipline" exist. S.C. Code Ann. § 40-69-120 (Supp. 2007) (emphasis added). Notably, "convict[ion] of a felony or a crime involving moral turpitude" is an individually enumerated ground to "suspend, revoke, or restrict" a veterinarian's license. § 40-69-110(A)(24) (emphasis added). A person convicted of tax evasion is a felon. See I.R.C. §§ 7201-7202 (2007) (); 18 U.S.C. § 3559 (2006) (classifying federal tax evasion as a Class D felony). Because tax evasion requires intent to deceive the United States and to avoid a societal duty, it is a crime of moral turpitude. See State v. Major, 301 S.C. 181, 184, 391 S.E.2d 235, 237 (1990) (); Gantt v. Columbia Coca-Cola Bottling Co., 204 S.C. 374, 380, 29 S.E.2d 488, 490 (1944) (); see also I.R.C. §§ 7201-7202 (requiring an intent to willfully evade a societal duty and defraud the United States). Therefore, Cottingham's convictions are both felonious and for crimes of moral turpitude. In turn, both convictions have two independent statutory grounds for consideration by the Board.
While Cottingham argues section 40-1-140 of the South Carolina Code (Supp. 2007) precludes sanction for felonies unrelated to the practice of veterinary medicine, this provision does not so constrain the Board's authority with regard to sanctions against existing licensees; section 40-1-140 only applies to applicants for initial licensure. See § 40-1-140 (); § 40-69-110(A)(24) () (emphasis added). To interpret section 40-1-140 as applicable to existing licensees would directly contradict clear and unambiguous statutory intent. See Sloan v. S.C. Bd. of Physical Therapy Exam'rs, 370 S.C. 452, 468, 606 S.E.2d 598, 616 (2006) (). Furthermore, even if section 40-1-140 did apply to existing licensees, which it does not, Cottingham's convictions did directly relate to his unlawful practices at the veterinary clinic and did implicate moral turpitude. Therefore, regardless of the provision's scope, it has no bearing on whether the Board properly sanctioned Cottingham. Thus, the Board had authority to consider Cottingham's tax evasion convictions in determining sanctions.
Cottingham argues the ALC erred in affirming all sanctions imposed by the Board because the sanctions: (1) lack substantial evidence; and (2) exceed the Board's authority and are extreme. Both contentions are without merit.
As to the first, because Cottingham did not challenge the sufficiency of the...
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