Montalvo v. Mississippi State Bd. of Medical Licensure, 92-CC-01338-SCT

• Decision Date: 14 March 1996
• Docket Number: No. 92-CC-01338-SCT,92-CC-01338-SCT
• Citation: 671 So.2d 53,1996 WL 11016
• Parties: Jose M. MONTALVO, M.D. v. MISSISSIPPI STATE BOARD OF MEDICAL LICENSURE.
• Court: Mississippi Supreme Court

Page 53

671 So.2d 53

Jose M. MONTALVO, M.D. v. MISSISSIPPI STATE BOARD OF MEDICAL LICENSURE.

No. 92-CC-01338-SCT.

Supreme Court of Mississippi.

March 14, 1996.

Appeal No. 148193W4 from Judgment dated November 25, 1992, Pat Wise Ruling Judge, Hinds County Chancery Court, First Judicial District.

Edward P. Lobrano, Jr., Lobrano Butler & Kirk, Ridgeland, for Appellant.

Michael C. Moore, Attorney General, Jackson, Larry Stroud, Sp. Ass't Attorney General, Jackson, Stan T. Ingram, Heidelberg & Woodliff, Jackson, for Appellee.

Before PRATHER, P.J., and PITTMAN and McRAE, JJ.

McRAE, Justice, for the court:

This appeal arises from a November 25, 1992 order of the Hinds County Chancery Court, First Judicial District, affirming the decision of the State Board of Medical Licensure to not reinstate Dr. Montalvo's medical license, which was revoked in 1987 after he was convicted on federal money laundering charges. Finding that the Board's decision was neither arbitrary nor capricious, and further, that it was supported by the evidence, we affirm the chancellor's decision.

I.

Dr. Jose Montalvo is a pediatric endocrinologist who has been licensed to practice his specialty in this state since 1961. He has worked as a physician and as a teacher at the University Medical Center. In 1986, Dr. Montalvo was convicted on one count of conspiring to defraud the United States government pursuant to 18 U.S.C. § 371 and found not guilty of conspiring to import and distribute marijuana. Finding that there was sufficient evidence for a jury to determine that Montalvo had been involved knowingly in a money laundering scheme, the Fifth Circuit affirmed the United States District Court's decision in United States v. Montalvo, 820 F.2d 686, 690 (5th Cir.1987).

Pursuant to Miss.Code Ann. § 73-25-29(6) (1995), which provides for the suspension or revocation of a medical license in the event of a licensee's conviction for a felony or misdemeanor involving moral turpitude, the State Board of Medical Licensure suspended Montalvo's license on January 15, 1987.

Dr. Montalvo received a five year prison sentence, but served only two years. After the United States Parole Commission issued a "Certificate of Early Termination" on January 19, 1990, discharging him from its jurisdiction, Dr. Montalvo began his efforts to have his medical license reinstated. The Board of Medical Licensure denied Montalvo's petition for reinstatement on March 26, 1990, stating that "Licensee's continued efforts to de-emphasize the nature and seriousness of his offense reflects a lack of remorse and exercise of poor judgment." Montalvo petitioned the Board a second time, making an informal appearance on July 18, 1991. Again, the Board rejected his petition, this time noting in its July 26, 1991 opinion that:

Contrary to his previous appearance before the Board, Licensee now openly admits his past misconduct and conviction before the United States District Court, including acknowledgment that the Government's case was based in part on the fact that Licensee participated in the laundering of drug money. Although Licensee exhibited remorse before this Board, this does not necessarily mean that he now possesses the requisite "good character" which the Mississippi Medical Practice Act and this Board requires.

On September 11, 1991, the Board determined that Dr. Montalvo should be afforded the opportunity for a "formal" appearance before the Board so that a "reportable action" might properly be taken. A hearing was held on January 16, 1992, and the Board again rejected Montalvo's plea in a January 17, 1992 Determination and Order. The Board again found that:

The fact remains that Licensee was involved in laundering money and any reasonable and prudent person knows the connection between money-laundering and drug trafficking. As stated in the transcript of the Imposition of Sentence, the United States Government considers the laundering of drug money just as serious as drug dealing and drug possession itself, because drug traffickers by necessity have to deal in cash.

* * * * * *

His continued efforts to de-emphasize the nature and seriousness of his offense reflects a lack of remorse and exercise of poor judgment.

Dr. Montalvo filed notice of his appeal of the Board's decision to the Hinds County Chancery Court on March 17, 1992. Reviewing the record of the January 16, 1992 proceedings, the chancellor found that the Board had considered the four elements of reinstatement articulated in Miss.Code Ann. § 73-25-32(3). Without commenting on the sufficiency of the evidence, but noting that "the reviewing court will not substitute its judgment for that of the administrative body nor disturb its findings where there is substantial evidence to support such findings," Southern Farm Bureau Casualty Co., Inc. v. National Bureau of Casualty Underwriters, 254 Miss. 445, 181 So.2d 154, 156 (1965), the chancellor upheld the decision of the Licensure Board.

II.

This Court does not review administrative agency decisions de novo; rather, it looks to see if the decision was supported by substantial evidence, or if it was arbitrary and capricious, beyond the power of the agency, or in violation of some constitutional or statutory right of the complaining party. Mississippi State Board of Nursing v. Wilson, 624 So.2d 485, 489 (Miss.1993); Mississippi State Tax Commission v. Mississippi-Alabama State Fair, 222 So.2d 664 (Miss.1969). There is a rebuttable presumption in favor of the agency decision and the burden of proof is on the party challenging that decision. Wilson, 624 So.2d at 489; County Board of Education of Alcorn County v. Parents and Custodians of Students at Rienzi School Attendance Center, 251 Miss. 195, 168 So.2d 814, 818 (1964). This Court further "give[s] due deference to the factual findings of the administrative agency and to the chancellor who adopted the same findings." State Farm Insurance Company v. Gay, 526 So.2d 534, 535 (Miss.1988). A decision supported by substantial evidence will not be overturned; only where the decision is arbitrary and capricious will the courts intervene. State Board of Psychological Examiners v. Hosford, 508 So.2d 1049, 1054 (Miss.1987).

III.

Dr. Montalvo first asserts that the Board of Medical Licensure's decision not to reinstate his license is arbitrary and capricious and unsupported by the evidence in the record. In its January 17, 1992 order ¹, the Board found:

The fact remains that Licensee was involved in laundering money and any reasonable and prudent person knows the connection between money laundering and drug trafficking. As stated in the transcript of the Imposition of Sentence, the United States Government considers the laundering of drug money just as serious as drug dealing and drug possession itself, because drug traffickers by necessity have to deal in cash.

* * * * * *

His continued efforts to de-emphasize the nature and seriousness of his offense reflects a lack of remorse and exercise of poor judgment.

Miss.Code Ann. § 73-25-32(3) provides for the reinstatement of medical licenses as follows:

In determining whether the disciplinary penalty should be set aside and the terms and conditions, if any, which should be imposed if the disciplinary penalty is set aside, the board of medical licensure may investigate and consider all activities of the petitioner since the disciplinary action was taken against him, the offense for which he was disciplined; his activity during the time his certificate was in good standing, his general reputation for truth, professional ability and good character; and it may require the petitioner to pass an oral examination.

Montalvo contends that in making its decision, the Board disregarded the criteria for reinstatement set forth in the statute as well as the testimony of the witnesses who spoke on his behalf at the January 16, 1992 hearing and at earlier proceedings. His entire appellate brief is devoted to demonstrating that these various statements spoke to the elements of § 73-25-32(2).

The Board's witness, Dr. Carl Evers, who had worked with Dr. Montalvo and the University Hospital and on the Executive Committee...