Genova v. Or. Veterinary Med. Examining Bd., A148617

• Decision Date: 16 November 2016
• Docket Number: A148617
• Citation: 386 P.3d 40,282 Or.App. 234
• Parties: Kenneth E. Genova, D.V.M., Petitioner, v. Oregon Veterinary Medical Examining Board, Respondent.
• Court: Oregon Court of Appeals

282 Or.App. 234

386 P.3d 40

Kenneth E. Genova, D.V.M., Petitioner,

v.Oregon Veterinary Medical Examining Board, Respondent.

A148617

Court of Appeals of Oregon.

Argued and submitted January 6, 2015.

November 16, 2016

Michael T. Stone, Hillsboro, argued the cause and filed the briefs for petitioner.

Carolyn Alexander, Assistant Attorney General, argued the cause for respondent. With her on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

ORTEGA, P.J.

Petitioner, a licensed veterinarian, seeks judicial review of a final order issued by the Oregon Veterinary Medical Examining Board (the board) in which it concluded that petitioner engaged in "unprofessional conduct," ORS 686.120¹ and ORS 686.130,² and, as a sanction, ordered him to pay a $750 penalty and $5,594.28 for the costs of the proceedings, ORS 686.150. We "review for substantial evidence, substantial reason, and errors of law." Papas v. OLCC , 213 Or.App. 369, 371, 161 P.3d 948 (2007). Because we conclude that the board's order lacks substantial reason, we reverse and remand the order.

We summarize the facts, which are undisputed, from the record and as found in the board's final order. In the summer of 2007, petitioner agreed to participate in a mentoring program for veterinary students at Oregon State University.³ As part of that program, petitioner hired F, a veterinary student, to work as an assistant at his hospital that summer. F performed a variety of tasks under petitioner's supervision, including, in relevant part, administering rabies vaccinations

. The record reflects that F performed her duties more than adequately.

In January 2008, the board sent petitioner a notice of proposed discipline after receiving complaints related to F's work at the hospital, though the nature of the complaints is unclear. Following its initial notice, the board sent petitioner two amended notices of proposed disciplinary action. In the operative notice, the board alleged that petitioner was subject to discipline for unprofessional conduct under ORS 686.130(6) by "having [a] professional connection with the illegal practice of veterinary medicine"⁴ and under OAR 875–011–0010(24) by "violat[ing] * * * other state laws relating to veterinary practice."⁵ The board claimed that, by allowing F to administer up to 10 rabies vaccinations

, petitioner had violated OAR 333–019–0017(2)(a)–(c), which provides that rabies vaccinations are "valid only when performed" by a licensed veterinarian, a veterinary technician under the direct supervision of a licensed veterinarian, or another person approved by the State Public Health Veterinarian.⁶ The board claimed that petitioner was responsible for F's failure to comply with the rabies rule because of OAR 875–015–0005(3), which makes a practitioner responsible for any noncompliant condition in his clinic.

In November 2010, an administrative law judge (ALJ) held a contested case hearing on the matter. After hearing testimony by petitioner and Dr. Emilio DeBess (the State Public Health Veterinarian), the ALJ issued a proposed order in which he concluded that "[petitioner's] allowance of a veterinary student to administer rabies vaccinations

did not constitute unprofessional conduct under ORS 686.130." The ALJ opined that the rabies rule addressed only the validity of a rabies vaccination and was unrelated to the practice of veterinary medicine. That is, the ALJ opined that the only consequence for failure to comply with the requirements of the rabies rule was that the vaccination was invalid. Therefore, the ALJ concluded that F could not be considered an "illegal practitioner" and, thus, petitioner could not be disciplined for having a "professional connection with" an illegal practitioner under ORS 686.130(6) and that, "even if [petitioner] allowed [F] to perform rabies vaccinations that turned out to be invalid, he did not ‘violate’ the law" for the purposes of OAR 875–011–0010(24).

Following the ALJ's order, the board issued and withdrew a series of orders. A complete recitation of that procedural history and the substance of those orders is not necessary to our analysis. In its final order, the board rejected the ALJ's determination and concluded that petitioner "did engage in professional conduct under ORS 686.130 and OAR 875–011–0010(24) when he allowed a veterinary student to administer rabies vaccinations

in his clinic in violation of [the rabies rule]." The board stated, in part:

"The factual record is indisputable that [petitioner] allowed [F] to administer rabies vaccines under his direct control within his clinic in 2007, in violation of OAR 333–019–0017. This rule qualifies as an ‘other state law relating to veterinary practice.’ The Board observes that this rule is well known in the profession, and the underlying need for the rule is grounded in the necessity to protect public health and safety. As a result, [petitioner] violated OAR 875–011–0010(24), which defines unprofessional or dishonorable conduct, ORS 686.130. Clearly, [petitioner] did violate ‘other laws' when he allowed [F] to administer the rabies vaccine under his direct control in 2007. Licensees are responsible for noncompliant conditions in their clinics pursuant to OAR 875–015–0005(3)."

The board then addressed the exceptions that petitioner had filed in response to the board's proposed order, ultimately rejecting them. In relevant part, petitioner had challenged the board's legal conclusions by pointing to ORS 686.040(13) (2007),⁷ which he claimed had provided statutory authority for F to administer rabies vaccinations

. In addressing that exception, the board stated:

"In [petitioner's] other written exception, that was received March 4, 2011, he contends that ORS 686.040(13), as it existed in 2007, serves to exempt [F] from being considered an ‘illegal practitioner.’ The Board concedes that ORS 686.130(6) is not applicable to this case. Nevertheless, this argument does not address the fact that [petitioner] allowed the student * * * to administer rabies vaccines to animals in his clinic, something that she lacked the legal authority to do, whether or not she was working under his direct supervision and whether or not she was working under the auspices of an approved educational program."

Having concluded that petitioner engaged in unprofessional conduct by violating OAR 875–011–0010(24), the board assessed a civil penalty of $750 against petitioner, as well as $5,594.28 in costs.

On appeal, petitioner reprises his challenge to the board's order. In his first assignment of error, he contends that the board erred by concluding that petitioner engaged in unprofessional conduct under OAR 875–011–0010(24). Petitioner's two other assignments of error (assignments four and five) challenge the resulting sanctions.⁸

Turning to petitioner's first assignment of error, we begin by summarizing the statutory framework and administrative rules that govern the discipline of licensed veterinary practitioners. As noted, ORS 686.120(1) authorizes the board to discipline any "permit or license holder" for "unprofessional or dishonorable conduct." ORS 686.130, in turn, defines "unprofessional or dishonorable conduct," listing 15 types of proscribed conduct. Although the term "unprofessional or dishonorable conduct" is statutorily defined, the board has promulgated a rule to interpret⁹ that term. In particular, the board promulgated OAR 875–011–0010, which provides a nonexhaustive list of acts that the board interprets as "unprofessional or dishonorable conduct." That currently includes, in relevant part, subsection (24), which provides that a practitioner may be disciplined for "[v]iolations of other laws that relate to the practice of veterinary medicine, including violations of the Oregon Racing Commission statutes and administrative rules." OAR 875–011–0010(24) (emphasis added). The "other law" at issue in this case is the rabies rule, which is a rule promulgated by the Public Health Division, an agency distinct from the board.

On appeal, petitioner raises three arguments as to why the board's conclusion that he violated OAR 875–011–0010(24) is incorrect. First, he claims that F was authorized by statute to administer the rabies vaccines under the relevant licensing statutes; therefore, if her conduct was authorized, the board could not have found that petitioner engaged in unprofessional conduct. Second, petitioner argues that, even if F was not authorized to administer the vaccinations

, her administration of the vaccines did not constitute a "violation of law," as proscribed by OAR 875–011–0010(24) ; rather, the only consequence would be that the vaccines would be invalid under the rabies rule. Third, petitioner contends that the board's decision is not supported by substantial evidence.

The board, in turn, maintains that it correctly determined that petitioner engaged in unprofessional conduct under OAR 875–11–0010(24). Specifically, the board contends that the rabies rule qualifies as an "other law" related to the practice of veterinary medicine, which petitioner violated by allowing F, who was unlicensed and uncertified, to administer rabies vaccinations

. Further, the board argues that it correctly rejected petitioner's arguments regarding the effect of ORS 686.040(13). Ultimately, the board claims that, because its interpretation is plausible and consistent with the wording of the rule and its context, we must give deference to its interpretation under Don't Waste Oregon Com. v. Energy Facility Siting , 320 Or. 132, 142, 881 P.2d 119 (1994).

Once more, we review the board's order for substantial evidence, substantial reason, and legal error. As the Supreme Court has explained, in addition to the substantial evidence requirement for findings, "agencies are also required to demonstrate in their opinions the reasoning that leads the agency from the facts that it has found to...