Moore v. Missouri Dental Bd.

• Decision Date: 29 June 2010
• Docket Number: No. WD 71065.,WD 71065.
• Citation: 311 S.W.3d 298
• Parties: David L. MOORE, D.D.S., Appellant, v. MISSOURI DENTAL BOARD, Respondent.
• Court: Missouri Court of Appeals

311 S.W.3d 298

David L. MOORE, D.D.S., Appellant, v. MISSOURI DENTAL BOARD, Respondent.

No. WD 71065.

Missouri Court of Appeals, Western District.

March 9, 2010.

Motion for Rehearing and/or Transfer to Supreme Court Denied April 27, 2010.

Application for Transfer Denied June 29, 2010.

COPYRIGHT MATERIAL OMITTED

Audrey H. McIntosh, Jefferson City, MO, for appellant.

Loretta L. Schouten, Columbia, MO, for respondent.

Before Division Four: THOMAS H. NEWTON, Chief Judge, KAREN KING MITCHELL, Judge and CYNTHIA L. MARTIN, Judge.

CYNTHIA L. MARTIN, Judge.

David L. Moore ("Moore") appeals from a disciplinary order ("Order") issued by the Missouri Dental Board ("Board") revoking Moore's dental license and barring reapplication for a period of not less than one year. The Order imposed additional discipline pursuant to section 324.042, formerly section 620.153,¹ as Moore was found to have violated a previous disciplinary agreement. Moore complains that the Order is not supported by competent and substantial evidence because the Board improperly took official notice of records from the earlier disciplinary proceeding and relied on those records to enter the Order. Moore also complains that the additional discipline imposed by the Order is not supported by competent and substantial evidence. We affirm.

Factual and Procedural History

Moore is a licensed dentist in the State of Missouri. The Board filed a Probation Violation Complaint ("Complaint") after Moore tested positive for cocaine following a drug test on August 31, 2007. The drug test had been required by the Board as a part of the discipline imposed on Moore following an earlier disciplinary proceeding.

Moore received the Complaint along with a Notice of Probation Violation Hearing ("Notice"). The Notice advised Moore that the Board would conduct a hearing on January 19, 2008, to determine whether Moore violated a previous disciplinary order, and if so, whether additional discipline should be imposed. Moore did not file an answer contesting the allegations in the Complaint. Moore attended the hearing with legal counsel. At the hearing, the Board's President opened the proceedings by noting:

This is a hearing in the matter of the Missouri Dental Board versus David L. Moore, DDS, Case No. DB-08-028. The purpose of this hearing is to determine whether or not Dr. Moore violated the terms of his discipline as contained in the waiver of hearing, joint stipulation, request for consent order filed on January 16th, 2007, by the Missouri Dental Board and the consent order issued by the Administrative Hearing Commission on or about January 17, 2007, and if so, what discipline, if any, to impose on Dr. Moore's dental license.²

The proceedings were then turned over to the Board's counsel. Counsel stated: "The parties have reached an agreement regarding the allegations in this case that are outlined in the Probation Violation Complaint...." Moore's counsel did not contest this representation. Moore was then examined by the Board's counsel. The extent of that questioning was as follows:

Q. And Dr. Moore let me ask you we have reached an agreement regarding the allegations in the probation violation complaint; is that correct?

A. Correct.

Q. Okay. Specifically that on August 31, 2007, you submitted to a urine drug screen for the board—

A. Yes.

Q. —pursuant to the terms of discipline?

A. Uh-huh.

Q. And that—and that you tested positive for cocaine; is that correct?

A. Correct.

Counsel for the Board then rested.

The proceedings were turned over to counsel for Moore. Moore's counsel admitted three exhibits. Two of the exhibits related to rehabilitation efforts Moore had undertaken since his positive drug test on August 31, 2007. The third exhibit was a character reference. Moore's counsel then examined Moore. Moore admitted his cocaine use and characterized the use as a "relapse."³ Moore testified about the circumstances of his relapse and described the voluntary rehabilitation efforts he had undertaken since his relapse.

Moore's counsel called Ira Davis, who runs the Missouri Dental Well Being Program, as a witness. Davis testified about Moore's experience in the program prior to his relapse, about the relapse, about Moore's rehabilitation efforts since the relapse, and about Moore's voluntary cessation of his dental practice subsequent to his relapse.⁴ Davis opined that Moore should be permitted to return to the practice of dentistry.

Moore presented no evidence contesting the representation that the parties had reached an agreement regarding the allegations outlined in the Complaint. Rather, the evidence submitted by Moore was relevant to the issue of what additional discipline, if any, the Board should impose on Moore.

On April 4, 2008, the Board issued its Order. The Order revoked Moore's license for a period of at least one year. On April 17, 2008, Moore filed a Petition for Judicial Review ("Petition") in the Circuit Court of Cole County, alleging that the Order was unsupported by competent and substantial evidence.

At Moore's request, the trial court issued a Stay Order ("Stay") suspending the revocation of Moore's license pending a decision on the Petition. The Stay directed Moore to conduct his practice in accordance with the probationary terms contained in the 2007 Stipulation and the 2007 Consent Order. Moore thereafter resumed his dental practice.

On July 9, 2008, Moore filed an Amended Petition. The Amended Petition added the assertion that the Board abused its discretion and utilized unlawful procedures resulting in its decision being unsupported by competent and substantial evidence upon the whole record because the Order took official notice of the 2007 Stipulation and the 2007 Consent Order though that did not occur on the record according to the transcript.

On May 7, 2009, the trial court entered its Judgment ("Judgment") affirming the Order. Anticipating this appeal, the Judgment extended the Stay until further order of the court and again directed Moore to comply with the probationary terms contained in the 2007 Stipulation and the 2007 Consent Order, both of which were incorporated by reference into the Judgment. This appeal follows.

Standard of Review

In an action involving initial license discipline, the Board assesses an appropriate level of discipline after the Administrative Hearing Commission ("AHC") has independently determined, "on the law and the evidence submitted by both the Board and the licensee, that cause for discipline exists." Lacey v. State Bd. of Reg. for the Healing Arts, 131 S.W.3d 831, 836 (Mo.App. W.D.2004). In such a case, section 621.145 directs that we review the "AHC's decision as to the existence of cause and the Board's subsequent disciplinary order `as one decision,' and proceed to review that combined decision, not the circuit court's judgment." Id. (quoting Dorman v. State Bd. of Reg. for the Healing Arts, 62 S.W.3d 446, 453 (Mo.App. W.D.2001)).

This case does not involve initial license discipline, however. This case involves the Board's imposition of additional discipline pursuant to section 324.042, which authorizes the Board to determine both whether a licensee "has violated any disciplinary terms previously imposed or agreed to pursuant to settlement," and what, if any, additional discipline to impose. As no statute specifically addresses the standard of review to be applied to administrative agency action under section 324.042, our standard of review is controlled by section 536.100, which authorizes judicial review of "a final decision in a contested case ... as provided in sections 536.100 to 536.140, unless some other provision for judicial review is provided by statute." Section 536.100; Lacey, 131 S.W.3d at 836. Thus, we review the Board's Order, and not the judgment of the trial court. Section 536.140; Lacey, 131 S.W.3d at 837. "The Board's decision is presumed valid, and the burden is on the party attacking it to overcome that presumption." Lacey, 131 S.W.3d at 837 (citing Dorman, 62 S.W.3d at 453). We make a "`single determination whether, considering the whole record, there is sufficient competent and substantial evidence to support'" the agency's decision. Albanna v. State Bd. of Reg. for Healing Arts, 293 S.W.3d 423, 428 (Mo. banc 2009) (quoting Hampton v. Big Boy Steel Erection, 121 S.W.3d 220, 223 (Mo. banc 2003)). If the "agency's decision involves a question of law, the court reviews the question de novo." Id. (citing State Bd. of Reg. for Healing Arts v. McDonagh, 123 S.W.3d 146, 152 (Mo. banc 2003)).

Analysis

Moore raises two points on appeal. Moore first contends that the Order was not supported by competent and substantial evidence because, although the Order states that the Board took official notice of the 2007 Stipulation and the 2007 Consent Order, neither document was properly made a part of the record in the manner required by either section 536.070(5) or section 536.070(6). Moore next contends that the revocation of his license for a period of at least one year was not supported by competent and substantial evidence in light of Moore's voluntary rehabilitation efforts and cessation of his dental practice following the failed drug test.

Point I

Imposition of additional discipline under section 324.042 required the Board to find that Moore violated the disciplinary terms previously agreed to pursuant to the 2007 Stipulation and the 2007 Consent Order. Moore contends that the 2007 Stipulation and the 2007 Consent Order were not properly made a part of the record pursuant to either section 536.070(5) or section 536.070(6), which describe the manner in which an administrative agency can either place its records or documents into evidence or take official notice of matters. Moore claims that the Order is not supported by competent and substantial evidence, because the documents essential to establish a prior agreed disposition of a disciplinary proceeding—the predicate to...