Molina v. McQuinn
| Decision Date | 09 August 1988 |
| Docket Number | No. 17421,17421 |
| Citation | 758 P.2d 798,1988 NMSC 60,107 N.M. 384 |
| Parties | Roberto MOLINA, Petitioner-Appellee, v. Dana McQUINN and the Board of Examiners in Optometry, Respondents-Appellants. |
| Court | New Mexico Supreme Court |
Respondents-appellants are Dana McQuinn and the Board of Examiners in Optometry who suspended petitioner-appellee, Robert Molina's, license to practice optometry for fourteen days. The district court reversed the Board's decision. McQuinn and the Board appeal, we reverse.
The Optometry Act, NMSA 1978, Section 61-2-1 to 61-2-18 (Repl.Pamp.1986) requires that optometrists be certified before they may use topical ocular diagnostic pharmaceutical agents or topical ocular pharmaceutical agents. Id. at Sec. 61-2-10. In June 1985, Molina enrolled in a 105 hour course at Pennsylvania College of Pharmacology to be certified pursuant to section 61-2-10. Upon completion of the course the college sent a list of the names of all persons completing the course to the Board. However, Molina's name did not appear on the list. In September 1985, Molina phoned a drug store to prescribe an ocular agent for a patient. The pharmacist checked the list naming all qualified optometrists in the use of ocular agents which was provided by the pharmacology board. Molina's name still was not on the list. After Molina assured the pharmacist that the omission was a mistake and would be corrected by the Board, the prescription was filled. The pharmacist filed a complaint against Molina with the Board of Examiners in Optometry, who then held a hearing and decided to suspend Molina's license for fourteen days because he was not certified as required by statute. Molina appealed the decision to the district court which overruled the Board's decision. We reverse.
We first address McQuinn's argument that the district court erred in reversing the Board's decision. In response, Molina argues that the district court properly concluded the Board exceeded its authority in determining that Molina's license should be suspended. Furthermore, in support of this argument, Molina asserts that the Board failed to provide discovery or to commence the hearing as required by statute. The statute requires the Board to provide discovery within ten days of request for discovery. NMSA 1978, Sec. 61-1-8 (Repl.Pamp.1986). It also requires the Board to provide Molina with a hearing, after request, within sixty days of service of notice of contemplated action. NMSA 1978 Sec. 61-1-4(D) (Repl.Pamp.1986). The Board did not comply with either of these requirements and now states that none of these issues were raised in the district court. Unfortunately, we are unable to say whether or not this is the case because the record before us is incomplete. However, we note that section 61-1-9 allows the Board to grant a prehearing continuance to assure that the licensee obtains full and complete discovery. The statute also contemplates a prehearing conference in order to simplify the issues. The evidence we have before us reveals that Molina and the Board held a prehearing telephone conference. Molina argues that he either did not approve a continuance during the conference, or if he did it was for the purpose of obtaining full discovery. Regardless of Molina's understanding of the nature of the conference, the Board granted a continuance to allow him full discovery.
Our recent decision in Lopez v. Medical Examiners, 107 N.M. 145, 754 P.2d 522 (1988) deals with the jurisdictional nature of the ninety day time limit within which a decision must be rendered under NMSA 1978, Section 61-1-13 (Repl.Pamp.1986). Lopez interpreted section 61-1-13 to require that a case must be disposed of within ninety days of final submission. Here we are concerned with the Board's failure to comply with two sections of the same act which impose time limits for the commencement of a case. The statutory scheme provided for the commencement of a case is quite different than that provided for its disposition. The Board had the authority to grant the prehearing continuance, pursuant to section 61-1-9, about which Molina now complains.
We next consider McQuinn's argument that the trial court erred in its conclusion that the Optometry Act does not provide for the manner in which an optometrist may become certified to use topical ocular pharmaceutical agents. The statute does provide a manner in which an optometrist may become certified to use topical ocular pharmaceutical agents. The statute states:
C. The board shall issue certification for the use of topical ocular pharmaceutical agents to optometrists who have successfully completed an examination and submitted proof of having satisfactorily completed a course in pharmacology as applied to optometry, with particular emphasis on the application of pharmaceutical agents for the purpose of examination of the human eye, analysis of ocular functions and treatment of visual defects or abnormal conditions of the human eye and its adnexa. The course shall constitute a minimum of one hundred five classroom-clinical hours of instruction in general and ocular pharmacology, including therapeutic pharmacology, as applied to optometry, and shall be taught by an accredited institution and approved by the board.
(Emphasis added) NMSA 1978, Sec. 61-2-10(C) (Repl.Pamp.1986). The statute is not ambiguous. It requires the board to certify an optometrist upon submission of proof that the optometrist has satisfactorily completed an approved course in pharmacology. However, the statute does not specify the manner in which proof of completion of the course requirements should be presented to the Board. In this case, the evidence presented indicated that Pennsylvania College was the source of...
To continue reading
Request your trial
-
Slack v. Robinson
...facts of the case de novo). The construction of statutes constitutes a matter of law for district courts. See Molina v. McQuinn, 107 N.M. 384, 386-87, 758 P.2d 798, 800-01 (1988) ("[W]here the question is one of construction of state statutes, the state court may pass upon it as an issue of......
-
Revocation Hearing by New Mexico Dept. of Motor Vehicles, Matter of, 11391
...too many witnesses in this case for the time the hearing officer scheduled for the revocation hearing. DMV relies on Molina v. McQuinn, 107 N.M. 384, 758 P.2d 798 (1988), to argue that in this situation, despite the time limit for hearings that Section 66-8-112(C) imposes, DMV ought to be a......
-
1998 -NMCA- 8, Morgan Keegan Mortg. Co. v. Candelaria
...& Soc. Servs. Dep't, 89 N.M. 60, 62, 547 P.2d 65, 67 (1976). Construction of a statute is an issue of law. See Molina v. McQuinn, 107 N.M. 384, 386-87, 758 P.2d 798, 800-01 (1988). We therefore review de novo the application of the statutory homestead exemption to Mortgagor's court-approved......