Patterson v. State Bd. of Optometry, 47682

• Decision Date: 20 March 1984
• Docket Number: No. 47682,47682
• Citation: 668 S.W.2d 240
• Parties: Donald A. PATTERSON, Plaintiff-Appellant, v. STATE BOARD OF OPTOMETRY, Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 240

668 S.W.2d 240

Donald A. PATTERSON, Plaintiff-Appellant, v. STATE BOARD OF OPTOMETRY, Defendant-Respondent.

No. 47682.

Missouri Court of Appeals,

Eastern District,

Division Two.

March 20, 1984.

Mark Antonacci, St. Louis, for plaintiff-appellant.

Sara Rittman, Jefferson City, for defendant-respondent.

PUDLOWSKI, Judge.

This is an appeal of the decision by the Circuit Court of St. Louis County, Division 6, affirming the order of the State Board of Optometry to suspend appellant's license to practice optometry for one year and place appellant's license on probation for an additional five years. The question in this case is whether it is appropriate or fair for the State Board of Optometry to administratively suspend appellant's license for one year and place his license on probation for five years when a similar suspension was ordered approximately four and one-half years previously, when a trial court took similar action for appellant's criminal misconduct. We find that the board's action is appropriate and that no doctrine of estoppel or principle of unreasonableness bars the suspension and probation of appellant's license. We affirm.

Appellant, Donald A. Patterson, O.D., is and has been a licensed optometrist in the State of Missouri since 1970 except for a one-year judicially imposed suspension for the misconduct in issue. Respondent, State Board of Optometry, is an agency of the State of Missouri, created and established pursuant to Chapter 336, RSMo. The board enforces and administers the chapter regulating and governing the licensure and practice of optometry.

On June 14, 1978, appellant pleaded guilty before the Circuit Court of St. Louis County, Division 5, to the offense of permitting another individual to practice optometry without a certificate of registration. This conduct violated RSMo § 336.020 (1978). Appellant admitted to furnishing pre-signed blank prescriptions which he knew were completed by Robert H. Theen or Lenora Lawrence. The court accepted appellant's plea of guilty and ordered and adjudged that the appellant be placed on probation for one year. Also, the court ordered restitution of $300 by August 1, 1978, and that appellant surrender his license for the period of probation, beginning August 1, 1978.

Appellant complied with the court's order. He surrendered his license to the State Board of Optometry. He did not practice optometry for one year beginning August 1, 1978. The board accepted his license and thereafter reissued a license to him at the end of his suspension period.

On January 17, 1980, respondent, State Board of Optometry, initiated proceedings before the Administrative Hearing Commission for the suspension or revocation of appellant's license. On October 9, 1981 a hearing was held and the commission considered the fact that in the prior criminal proceeding appellant pleaded guilty to the offense of permitting another to practice optometry without a license. In December 1982, the commission ordered that the State Board of Optometry may suspend appellant's license.

On February 25, 1983, the board suspended appellant's license for a year and placed him on probation for five years. Appellant appealed the order to the Circuit Court of St. Louis County, Division 6. On August 6, 1983, the court affirmed the order by the State Board of Optometry. From this decision, appellant appeals.

He alleges the trial court erred in (1) failing to equitably estop the State Board of Optometry from taking disciplinary action against appellant's license, (2) permitting the State to discipline the appellant twice in the same manner for the same misconduct, (3) finding the board's suspension and probation not to be arbitrary or capricious, (4) finding the board's suspension and probation not to be an abuse of discretion, and (5) finding that no statute of limitations or passage of a reasonable period of time bars respondent from taking action against appellant's license.

He initially claims that the doctrine of equitable estoppel bars the respondent from bringing this action. This claim must fail for three reasons. First, the three essential elements of the doctrine are missing in this situation. Second, the estoppel doctrine does not apply where the parties taking action against the claimant are not the same. And, third, if the elements of the doctrine were present and the parties were the same, appellant has failed to show any exceptional circumstances to apply the doctrine to the government under these facts.

Appellant's claim fails because the three elements of the doctrine of equitable estoppel are not present. The three elements are (1) an admission, statement, or act inconsistent with a claim afterward asserted and sued upon, (2) action by the reliant party on faith of such admission, statement or act, and (3) injury to the reliant party resulting from allowing the first party to contradict or repudiate such admission, statement or act. State ex Inf. Voigts ex rel. Mayor, Council and Citizens of Liberty v. City of Pleasant Valley, 453 S.W.2d 700, 705-6 (Mo.App.1970).

In the present case the first element of the doctrine is absent. There is no admission, statement, or act inconsistent with a claim afterward asserted and sued upon. The suspension of appellant's license by the Circuit Court of St. Louis County, Division 5, is not inconsistent with the board's suspension for the identical misconduct. The court and board operate as two separate and independent branches of Missouri state government. The court operates in the judicial branch. The board is an agency of the executive branch. The legislature by statute authorizes both branches to take action for the same misconduct. The court is authorized to penalize his conduct which is in violation of RSMo § 336.020 (1978). The board is authorized by RSMo § 336.110 (1978) to suspend or revoke an optometrist license for certain misconduct.

Not only do we find the first element of the doctrine of equitable estoppel missing,...