David W. Mays, D.D.S. v. Ohio State Dental Board

• Decision Date: 16 May 1996
• Docket Number: 96-LW-2260,68864
• Parties: DAVID W. MAYS, D.D.S., Plaintiff-appellant v. OHIO STATE DENTAL BOARD, Defendant-appellee
• Court: Ohio Court of Appeals

DAVID W. MAYS, D.D.S., Plaintiff-appellant v. OHIO STATE DENTAL BOARD, Defendant-appellee

No. 68864.

96-LW-2260 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

May 16, 1996

Civil appeal from Court of Common Pleas Case No. 281953.

FOR PLAINTIFF-APPELLANT: Robert O. Garnett, Esq., Robert O Garnett Co., L.P.A., 20475 Farnsleigh Road, Suite 306, Shaker Hts., Ohio 44122.

FOR DEFENDANT-APPELLEE: Betty D. Montgomery, Esq., Attorney General, Sallie J. DeBolt, Esq., Asst. Attorney General Julia M. Graver, Esq., Asst. Attorney General, Health & Human Services Sec., 30 East Broad St., 26th Floor, Columbus, Ohio 43215-3428.

OPINION

HARPER J.

Appellant, David W. Mays, D.D.S. ("appellant"), appeals from the order of the common pleas court dismissing his administrative appeal from the Ohio State Dental Board ("the Board") which revoked appellant's dental license. The Cuyahoga County Court of Common Pleas dismissed appellant's appeal on the ground that the court lacked subject matter jurisdiction to hear appellant's administrative appeal, because appellant failed to comply with procedures mandated by R.C. 119.12. A review of the record compels affirmance.

The following facts are adduced from the record before this court. Appellant was convicted in Cuyahoga County Court of Common Pleas for aggravated theft, secured writings by deception, and tampering with records. On May 11, 1994, appellant was sentenced to Lorain Correctional Institution for a term of five to fifteen years and ordered to pay $41,500.00 in fines.

The Board sent appellant a Notice of Hearing ("the notice") by certified mail on June 30, 1994, regarding the Board's proposal to warn, reprimand, suspend, or revoke appellant's license to practice dentistry in the state of Ohio due to appellant's felony convictions. The Notice in relevant part states:

[O]n or about April 27, 1994, you were found guilty of Aggravated Theft, a violation of Section 2913.02 of the Ohio Revised Code; guilty of Secured Writings by Deception, a violation of Section 2913.43 of the Ohio Revised Code; and, guilty of Tampering with Records, a violation of Section 2913.42 of the Ohio Revised Code, in Cuyahoga County Common Pleas Court.

Such conduct is a violation of Section 4715.30(A)(4) of the Ohio Revised Code, which states in relevant part: The holder of a certificate license issued under this chapter is subject to disciplinary action by the state dental board for any of the following reasons: "Conviction of *** any felony";

Pursuant to Chapter 119. of the Ohio Revised Code, you are advised that you are entitled to a hearing on this matter. If you wish to request such a hearing, the request must be made in writing and must be received in the offices of the Ohio State Dental Board within thirty (30) days of the time of the mailing of this Notice.

You are further advised that you are entitled to appear at such hearing in person, or by your attorney, or that you may present your position, arguments or contentions in writing, and that at the hearing you may present evidence and examine witnesses appearing for or against you.

In the event that there is no request for such hearing made within thirty (30) days of the time of the mailing of this Notice, the Ohio State Dental Board may, in your absence, and upon consideration of the foregoing charges, in its discretion, warn, reprimand, or otherwise discipline you, or suspend or revoke your license.

The Notice was sent to the Lorain Correctional Institution and was returned to the Board for inability to deliver. on July 18, 1994, the Board then sent the Notice by certified mail to the Cuyahoga County Jail. The Notice was returned to the Board for inability to deliver. On August 2, 1994, the Board made a final attempt to locate appellant by sending Tom Smith, Board Investigator, and Detective Cherilyn Lewis, Shaker Heights Police Department, to appellant's residence and business address, to hand deliver the Notice. Appellant was not located at either location. Dr. Engle whose dental office is next door to appellant's office informed Mr. Smith and Ms. Lewis that he had not seen appellant for almost a month. Pursuant to R.C. 119.07, the Board published the Notice in the Cleveland Plain Dealer since the Board was unable to deliver the Notice.

In pertinent part, R.C. 119.07 states:

When any notice required by sections 119.01 to 119.13, inclusive, of the Revised Code, to be sent by registered mail, is returned because of inability to deliver, the notice shall be published once a week for three consecutive weeks in a newspaper of general circulation in the county where the last known place of residence or business of the party is located. A copy of the newspaper, with the first publication of said notice marked, shall be mailed to the party at such address and the notice shall be deemed received as of the date of the last publication.

Accordingly, on August 29, 1994, September 5, 1994 and September 12, 1994, the Notice appeared in the Plain Dealer, a general publication which is circulated in nine counties. According to R.C. 119.07, appellant had to request a hearing within thirty days of September 12, 1994 to preserve his right to a hearing. Appellant did not request a hearing. On November 11, 1994, the Board reviewed the Notice and the charges without appellant's representation, and the Board unanimously found the allegation contained in Count One of the Notice to be true and a violation of R.C. 4715.03(A)(4). After considering the sanctions available under R.C. 4715.30(C), the Board, in its discretion, decided to revoke appellant's license to practice dentistry in the state of Ohio. The Adjudication Order reads in pertinent part:

***

Respondent was duly notified of an Opportunity for Hearing, in accordance with Chapter 119 of the Ohio Revised Code, by publication of the Notice of Opportunity for Hearing in the "Cleveland Plain Dealer" newspaper. The Notice appeared once a week for three (3) consecutive weeks. Notice was served by a publication because Respondent could not be served by Certified Mail. Respondent did not request a hearing in regard to the allegation contained in the Notice of Opportunity for Hearing.

On November 17, 1994, the Ohio State Dental Board reviewed the allegation contained in the Notice of Opportunity for Hearing, and the Journal Entry of the criminal conviction in Cuyahoga County Common Pleas Court.

Upon consideration of the above, the board concluded that the allegation contained in the Notice of Opportunity for Hearing is true, and is a violation of Section 4715.30(A)(3) of the Ohio Revised Code.

The Ohio State Dental Board discussed all the options contained in Section 4715.30 (C) of the Ohio Revised Code and made the following decision:

1. That the dental license of David W. Mays, D.D.S., is hereby REVOKED.

***

Respondent may appeal this order pursuant to Section 119.12 of the Revised Code, by filing a Notice of Appeal with the Ohio State Dental Board *** within fifteen days (15) of the date of this Order, and by filing a copy of said Notice of Appeal with the proper Court of Common Pleas as determined under Section 119.12 of the Revised Code.

Appellant received the Adjudication Order.(fn1) Appellant filed a notice of appeal with the Cuyahoga County Court of Common Pleas on December 15, 1994 and on December 19, 1994, appellant filed a notice with the Board.

On December 8, 1994, appellant sent a notice of appeal marked "Draft" to a Board member which was accompanied by a cover letter which stated, in part:

[I] have enclosed a draft copy of the appeal that will be filed in the Court of Common Pleas, if such filing becomes necessary. It should be kept in mind that this draft version of the Appeal will be more detailed in its final form. In the meantime, however, I am asking the Dental Board to examine the efforts of its investigators to give my client proper notice, with an eye toward avoiding filing an appeal in Common Pleas Court ***.

The trial court dismissed appellant's complaint, finding that appellant failed to satisfy the...