Davidson v. D.C. Bd. of Medicine, 87-1347.

• Decision Date: 13 July 1989
• Docket Number: No. 87-1347.,87-1347.
• Citation: 562 A.2d 109
• Parties: Laning R. DAVIDSON, M.D., Petitioner, v. DISTRICT OF COLUMBIA BOARD OF MEDICINE, Respondent.
• Court: D.C. Court of Appeals

Page 109

562 A.2d 109

Laning R. DAVIDSON, M.D., Petitioner, v. DISTRICT OF COLUMBIA BOARD OF MEDICINE, Respondent.

No. 87-1347.

District of Columbia Court of Appeals.

Argued March 14, 1989.

Decided July 13, 1989.

Cary M. Feldman, with whom Douglas C. McAllister, Washington, D.C., was on the brief, for petitioner.

Susan S. McDonald, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for respondent.

Before ROGERS, Chief Judge, MACK, Associate Judge, and PRYOR, Senior Judge.

ROGERS, Chief Judge:

Petitioner Laning R. Davidson appeals from the decision of the District of Columbia Board of Medicine that he violated D.C. Code § 2-3305.14(a)(1), (a)(8) (1988 Repl.) by willfully making a false statement in his application for a renewal of a license to practice medicine in the District of Columbia. The Board reprimanded him and imposed a fine of $1250. Petitioner contends first, that the Board lacked jurisdiction over him because its notice of intent to revoke his license cited repealed statutes and because his license to practice medicine had expired before the Board held a hearing or issued its final decision; second, that he did not receive adequate notice of the factual basis of the charges against him; and third, that a critical finding of the Board, that he had received actual notice of the Florida Board of Medical Examiners' order denying his application for licensure, is unsupported by the record and requires reversal. We affirm.

I

Petitioner was licensed to practice medicine in the District of Columbia in 1980. On September 6, 1985, he submitted an application to renew his license for the 1985-86 license period. In response to the question in the application, "Has any state denied your application for license, suspended or revoked your license, or informed you of any pending charges not previously reported?" he answered "No," and his license was thereafter renewed through December 31, 1986.

On July 21, 1986, the District of Columbia Board of Medicine ("Board") issued a notice of proposed intent to revoke petitioner's license based on the charges that he had "committed professional misconduct, as defined in D.C.Code 1981 § 2-1326(d)(1), in that [he] used a false statement in connection with the District of Columbia licensing requirements," and because he had "violated D.C.Code 1981 § 2-1327(a)" by filing with the Board a statement when he "knew it was false and misleading." The notice also stated

On August 12, 1985, you knew that the Florida Board of Medical Examiners had denied your application for licensure as a physician because a copy of their January 9, 1985 Order denying your application for licensure by endorsement was mailed to you by certified mail on January 17, 1985.

The hearing before a panel of the Board which was originally scheduled for September 16, 1986, was continued several times, including once to permit petitioner to get further information about the Florida proceedings and another time to obtain new counsel. Petitioner denied having applied for licensure by endorsement in Florida, notwithstanding what appeared to be such an application with his signature on it, and denied having had a hearing before the Florida Board of Medical Examiners ("Florida Board"). He later changed his testimony to admit that he had been present at the hearing held on November 30 and December 1, 1984, before the Florida Board and stipulated to the authenticity of the transcript of that hearing. He denied, however, that the Florida Board had given him any indication of its decision on his application. The transcript revealed that when petitioner arrived late at the hearing, the Florida Board informed him that in his absence, based on materials presented, "[t]he Board voted to not allow you to have a license. . . .," but that it would reopen his case since he had arrived. At the conclusion of the hearing the next day, the Florida Board informed petitioner, "Again, you don't have a license to practice in this State." A month and a half later, on January 17, 1985, the Florida Board sent a copy of its decision to petitioner by certified mail, but despite two notices left at his home, petitioner never picked up the mail, claiming later that he had been on a prolonged absence from his Florida home.

The Board issued its final decision on November 4, 1987, after considering petitioner's exceptions to its proposed decision. It found that because petitioner was present at the Florida hearing, he knew or should have known that his Florida application had been denied and, therefore, that he made a willful misstatement in violation of D.C.Code § 2-3305.14(a)(1), (a)(8) (1987 Supp.),¹ when he stated in his application for license renewal in the District of Columbia that he had never had an application denied in another state. It also found that he had been meaningfully notified of the charges against him despite the erroneous citations to repealed statutes since the replacement statutes were substantively the same. The Board rejected petitioner's claim that the proceedings were moot because of the expiration of his license and concluded as a matter of law that it had jurisdiction to discipline him. The Board reprimanded petitioner and fined him $1250. D.C.Code §§ 2-3305.14(c)(4), (c)(5), 2-3310.9 (1988 Repl.).

II.

We first address petitioner's jurisdictional contentions.

A.

Petitioner contends that the Board lacked jurisdiction to discipline him because its notice of intent to revoke his license erroneously, cited statutes that had been repealed. The court recently rejected a similar claim, holding that in the absence of a showing of prejudice, an erroneous citation in a revocation notice to a statute repealed by the Revision Act will not divest the Board of jurisdiction to discipline an applicant where "[t]he same conduct was cause for discipline under both statutes and the same disciplinary sanctions existed for such conduct."Mannan v. District of Columbia Bd. of Medicine, 558 A.2d 329, 331-332 (D.C. 1989) (citing New Palm Gardens, Inc. v. Alcoholic Beverages Control Comm'n, 11 Mass.App.Ct. 785, 786-790, 420 N.E.2d 8, 11-12 (1981) (no showing of prejudice where licensee aware of charges against it and commission referred to correct statute in its statement of reasons)).

In the instant case, the Board's notice referred to D.C.Code §§ 2-1326(d)(1),² 2-1327(a)³ (1981), which were part of the statutory scheme replaced as of March 25, 1986, by the District of Columbia Health Occupations Revision Act of 1985, D.C. Law 6-99, 33 D.C. Reg. 729 (1986) ("Revision Act") (codified at D.C.Code § 2-3301.1 et seq. (1988 Repl.)). These provisions were carried forward in the Revision Act, which provides that the Board, which replaced the Commission on Licensure to Practice the Healing Art, is authorized to take disciplinary action against

any applicant, licensee, or person permitted by this subchapter to practice the health occupation regulated by the board in the District who

(1) Fraudulently or deceptively obtains or attempts to obtain a license for an applicant or licensee . . .

(8) Willfully makes or files a false report or record in the practice of a health occupation.

D.C.Code § 2-3305.14(a)(1), (a)(8) (1988 Repl.). Furthermore, in its final decision, the Board cited the provisions of the Revision Act in addition to the repealed statutes. Accordingly, petitioner has failed to demonstrate that there is any "material difference" between the old and new statutory provisions or any prejudice resulting from this error. Mannan, supra, at 334 n. 14.

B.

Petitioner also contends that the Board lost jurisdiction over him after his license expired on December 31, 1986. Since he has not submitted a new application for renewal of license and has testified that he has no intention of doing so, he maintains that he is no longer "an applicant, licensee, or person permitted by this subchapter [the Revision Act] to practice the health occupation regulated by the board in the District."⁴ D.C.Code § 2-3305.14(a) (1988 Repl.). He interprets the Revision Act to be more restrictive than the repealed statute, D.C.Code § 2-1326(d) (1981), which provided, in describing the penalties that could be imposed, that the Commission had authority over a "present or former licensee." While under the repealed statute the Commission might have authority over him as a "former licensee," petitioner contends that the language of the Revision Act, which omits the word "former," indicates that the Board no longer has authority over him.⁵

The Board as a statutory creation has only those powers given to it by statute, Stark v. Wickard, 321 U.S. 288, 309, 64 S.Ct. 559, 570, 88 L.Ed. 733 (1944); Office of Consumers' Counsel v. Federal Energy Reg. Comm'n, 210 U.S.App.D.C. 315, 332 n. 32, 655 F.2d 1132, 1149 n. 32 (1980), and may not ignore the statute under which it operates. Berger v. Bd. of Psychologist Examiners, 172 U.S.App.D.C. 396, 402, 521 F.2d 1056, 1062 (1975). Absent express statutory or regulatory authority, a regulatory agency may not impose remedial measures. Kuflom v. District of Columbia Bureau of Motor Vehicle Servs., 543 A.2d 340, 346 (D.C. 1988) (Terry, J., concurring) (authority to hold license revocation hearing). We hold, upon reviewing the plain language of the statute, the statutory scheme and the legislative history, that the Revision Act authorized the Board to discipline petitioner. See In re Burton, 472 A.2d 831, 838 (D.C.) (statutory scheme), cert. denied, 469 U.S. 1071, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984); Citizens Ass'n of Georgetown v. Zoning Comm'n of the District of Columbia, 392 A.2d 1027, 1033 (D.C. 1978) (en banc); Auger v. District of Columbia Bd. of Appeals and Review, 477 A.2d 196, 210-11 (D.C. 1984) (citing Peoples Drug Stores v. District of Columbia, 470 A.2d 751, 753-54 (D.C. 1983) (en banc)).

The Revision Act is a...