Schaffer v. State Bd. of Veterinary Medicine, 53555

• Decision Date: 27 June 1977
• Docket Number: No. 53555,No. 1,53555,1
• Citation: 143 Ga.App. 68,237 S.E.2d 510
• Parties: J. D. SCHAFFER v. STATE BOARD OF VETERINARY MEDICINE
• Court: Georgia Court of Appeals

Page 510

237 S.E.2d 510

143 Ga.App. 68

J. D. SCHAFFER v. STATE BOARD OF VETERINARY MEDICINE.

No. 53555.

Court of Appeals of Georgia, Division No. 1.

June 27, 1977.

Rehearing Denied July 28, 1977.

Fendig, Dickey, Fendig & Whelchel, Albert Fendig, Jr., C. Edward Nicholson, Brunswick, for appellant.

Arthur K. Bolton, Atty. Gen., Stephen L. Cotter, Asst. Atty. Gen., Atlanta, for appellee.

SMITH, Judge.

The appellant, a licensed veterinarian, was charged with several infractions of the Georgia Veterinary Practice Act, as amended. Ga.L.1965, p. 92; Ga.L.1973, p. 260 (Code Ann. § 84-1501 et seq.). After a prolonged hearing before the Georgia State Board of Veterinary Medicine, the appellant's license was revoked. On appeal, the Board's decision was affirmed by the Glynn County Superior Court, and the court's decision is now appealed to this court. We agree with the appellant's contention that the Board committed procedural and substantive errors; consequently, the Superior Court erred in refusing to reverse the Board's decision.

1. Appellant's first six enumerations of error, taken together, point to conduct on the Board's part which amounted to a denial of a fair hearing. The appellant received notice that a hearing would be held in twenty-six days at which he would have to answer seven separate charges against him. Within four days after receipt of notice, the appellant requested a continuance so that he might prepare defenses to the seven charges. The request was summarily denied.

Section 14(a)(2)(D) of the Georgia Administrative Procedure Act (Ga.L.1965, pp. 283, 290 (Code Ann. § 3A-114(a)(2)(D))) provides that notice of a hearing shall include "(a) short and plain statement of the matters asserted. If the agency or other party is unable to state the matters in detail at the time, the notice may be limited to a statement of the issues involved. Thereafter, upon application, a more definite and detailed statement shall be furnished." The appellant made a timely request for a more definite statement of the matters asserted; he received a response that "the Board has already provided Dr. Schaffer with a 'short and plain statement of the matters asserted' which fully comports with all legal requirements." We disagree. The fundamental requirement is notice calculated to apprise the party of each claim asserted so that he can prepare any defense he may have as to each charge. The notice, received in July, 1975, included allegations involving three incidents which occurred the previous November, over eight months earlier. Two of the incidents involved rabies vaccinations administered to "a dog named 'Smokey.' " The third involved heartworm medication prescribed for "a dog named 'Mopsy.' " The persons who sought treatment for "Smokey" and "Mopsy" are not named.

These statements of asserted matters were "short," to be sure, but they certainly were not "plain." A veterinarian cannot be expected to recollect treating an animal when he is given no more to go on than the animal's name and the date of treatment. Such limited notice is not reasonable.

To compound the matter, at the opening of the hearing on August 13, 1975, the prosecutor, over the appellant's objection, was allowed to amend one of the above charges to specify that the incident happened on November 1, 1973, rather than November 1, 1974, as alleged. Then, despite the appellant's protestations that he had been unable to identify the incident in his records, the prosecutor called as his first witness a state investigator who testified about the November 1973 incident.

The first day, the prosecutor requested that the record in the case be allowed to remain open for 90 days. He stated that additional matters, which should be considered at one continuous hearing, had recently come to the attention of his office. As a result, further charges might need to be added as the hearing progressed. The Board granted the request, and at the conclusion of the first day of the hearing the record was left open. The Board set October 16, 1975, as the second hearing day. On August 29, the Board added two additional charges; on September 30, three more charges were added. The hearing resumed on October 16, was recessed at the end of the day, and was resumed and completed on November 20.

The Board argues that even if the notice afforded appellant was not reasonable as to time and specificity, and even if a continuance should have been granted, no harm was done because the protracted nature of the hearing gave the appellant four months for preparation and presentation of a defense. The law requires more than a mere assurance that a respondent in a disciplinary hearing will be afforded a future opportunity to rebut the case made against him. What it requires is that the respondent be given reasonable notice so that he can conduct his defense, including adequate and meaningful cross examination of adverse witnesses, from the onset of the proceedings. It is true, as the Board suggests, that the appellant could have subpoenaed any of the August witnesses to return to either the October or November hearing dates and then cross examine them. But it cannot seriously be argued that a two or three month delayed cross examination is either meaningful or adequate, for the impressions left by those witnesses who testified free of the challenge of a prepared cross examination might never be erased. In sum: The appellant was given short notice of the pending proceedings. Parts of the notice were inexcusably vague. The notice was amended at the hearing. Additional charges were added during the course of the hearing. In some cases, evidence on the additional charges was presented within three weeks. These factors together operated to place the appellant at an unfair disadvantage which was not cured by the long recesses in the hearings.

In addition to the notice defects, the record shows that the Board was substantially reliant upon the prosecuting attorney for advice on legal questions, such as evidentiary rulings and construction of...