STATE BD. OF MEDICAL LICENSURE v. Pinaroc

• Decision Date: 19 March 2002
• Docket Number: No. 96,897.,96,897.
• Citation: 2002 OK 20,46 P.3d 114
• Parties: The STATE of Oklahoma ex rel. The OKLAHOMA BOARD OF MEDICAL LICENSURE AND SUPERVISION, Plaintiff/Appellee, v. Ambrosio PINAROC, M.D., Appellant/Defendant.
• Court: Oklahoma Supreme Court

46 P.3d 114

2002 OK 20

The STATE of Oklahoma ex rel. The OKLAHOMA BOARD OF MEDICAL LICENSURE AND SUPERVISION, Plaintiff/Appellee, v. Ambrosio PINAROC, M.D., Appellant/Defendant.

No. 96,897.

Supreme Court of Oklahoma.

March 19, 2002.

Darryl F. Roberts, Ardmore, OK, for Appellant.

Elizabeth Scott, Oklahoma City, OK, for Appellee.

SUMMERS, J.

¶ 1 This matter is before us on a sua sponte inquiry into our appellate jurisdiction prior to a disposition on the merits of the appeal.¹ We conclude that a timely filed motion for rehearing pursuant to 75 O.S.Supp.1992 § 317 extended the time to appeal from a final order of the Board of Medical Licensure, that the appellate procedure for an appeal from an agency to this Court should allow for a timely supplemental petition in error to cure a prematurely filed petition in error, and that this appeal is timely to review three administrative orders. Because we recently amended Oklahoma Supreme Court Rule 1.77 by separate order to comply with state statutes, we provide Appellant an opportunity to file a supplemental petition in error to cure the prematurity of his appeal. We direct that the appeal shall proceed at this time.

¶ 2 Dr. Pinaroc holds an Oklahoma medical license. The Board of Medical Licensure held a hearing, and on May 4, 2001, suspended Dr. Pinaroc's license "until the Board meeting on July 19-21, 2001, at which time Defendant may appear before the Board to seek reinstatement of his license." Dr. Pinaroc then unsuccessfully sought reinstatement of his license at the July hearing; the Board suspended his medical license until he completed an evaluation program and submitted the results to the Board. As a result of that hearing a second "Final Order of Suspension" was issued. The order is dated August 2, 2001 and contains a certificate of service stating that the order was mailed to both Dr. Pinaroc and his counsel on August 3, 2001. Dr. Pinaroc then filed a Motion for Rehearing before the Board, which was denied. The Board's written order is dated October 2, 2001, and the certificate of service states that it was mailed to counsel for Pinaroc on October 15, 2001.

¶ 3 The State Board of Medical Licensure and Supervision has the power to revoke, suspend or impose disciplinary actions upon the license of a physician or surgeon, "and appeals from its decisions shall be taken to the Supreme Court of this state within thirty (30) days of the date that a copy of the decision is mailed to the appellant, as shown by the certificate of mailing attached to the decision." 59 O.S.Supp.1998 § 513.² The Board's decision was a "disciplinary action" against Pinaroc, and § 513 applies to this controversy. See Davuluri v. State ex rel. Oklahoma Bd. of Medical Licensure and Supervision, 2000 OK 45, ¶ 20, 10 P.3d 198, 202, (explaining the distinction between disciplinary actions and a denial of application for a license).

¶ 4 Pinaroc's petition in error states that it is an appeal from the Board's orders issued May 4, 2001, and August 2, 2001. The petition in error was filed October 12, 2001, a date more than thirty days from both May 8, 2001 and August 3, 2001, the dates the orders were mailed to the doctor. Pinaroc argues that the petition in error is timely to challenge all of the Board's orders because he filed a motion for rehearing before the Board, and the motion was not denied until October 2, 2001. We first address the timeliness of the appeal challenging the order of May 4th, 2001.

I. THE ORDER OF MAY 4, 2001

¶ 5 That order was filed with the State Board on May 4, 2001 and mailed to Pinaroc on May 8, 2001. It is titled "Final Order of Suspension", it suspended Pinaroc's license beginning May 3, 2001, and allowed him to seek "reinstatement" at the next Board meeting. The order also required him to pay the costs of the action, including legal fees and investigation costs. Pinaroc did not seek a rehearing of this order, nor did he file a petition in error within thirty days of May 8, 2001.

¶ 6 Pinaroc argues that his appellate challenge to the May 4th order is timely because that order was not final. The order is titled "Final Order of Suspension", but the title of the order does not, by itself, control whether it satisfies statutory or common-law³ criteria for finality. A statutory criteria is provided by the Administrative Procedures Act. A final agency order contains findings of fact, conclusions of law, is dispositive of an individual proceeding and is subject to judicial review, unless a timely request for rehearing of that order was made. 75 O.S.Supp.1992 § 250.3(5).⁴ The order of May 4th contains findings of fact and conclusions of law, and no request for rehearing of that order was made.

¶ 7 But was the order of May 4th dispositive of an individual proceeding? We have stated that in the absence of contrary statutory language "an order is final under section 318 when the administrative process ends and legal obligations resulting from that process are imposed." Double LL Contractors, Inc. v. State ex rel. Oklahoma Dept. of Transportation, 1996 OK 30, 918 P.2d 34, 38, citing, Conoco v. State Dept. of Health, 1982 OK 94, 651 P.2d 125, 127. The order of May 4th appears to be inconsistent on its face regarding the culmination of the administrative process.

¶ 8 The Board's order of May 4th stated that Pinaroc could appear before the Board at its meeting on July 19-21 and seek reinstatement. The Board may determine that an emergency exists and "conduct a hearing as contemplated by Section 314 of Title 75 of the Oklahoma Statutes to suspend temporarily the license of any person under the jurisdiction of the Board." 59 O.S.Supp.1994 § 503.1. Section 314 states in part:

C. 1. Unless otherwise provided by law, an existing license shall not be revoked, suspended, annulled, withdrawn or nonrenewed unless, prior to the institution of such final agency order, the agency gave notice by mail to the licensee of facts or conduct which warrant the intended action, and the licensee was given an opportunity to show compliance with all lawful requirements for the retention or renewal of the license.

2. If the agency finds that public health, safety, or welfare imperatively requires emergency action, and incorporates a finding to that effect in its order, summary suspension of a license may be ordered pending proceedings for revocation or other action. These proceedings shall be promptly instituted and determined.

75 O.S.Supp.1992 § 314(C), emphasis added.

The Board may temporarily suspend a license during a disciplinary hearing by following the statutory procedure. That procedure requires the Board to make a specific finding and record that finding in the order that suspends a license pending other proceedings. Id. at § 314(C)(2). The Board's order of May 4th does not contain the finding required by § 314 for a temporary suspension. In other words, the May 4th order appears to be an attempted temporary suspension but one lacking the required statutory finding in the proceeding, or on the face of the order.

¶ 9 When construing the terms of an unclear, doubtful or ambiguous order this court will look outside the order and examine the four corners of the record proper to interpret the trial judge's decision. Frazier v. Bryan Memorial Hospital Authority, 1989 OK 73, 1989 OK 73, 775 P.2d 281, 285-286, citing, Elliott v. City of Guthrie, 1986 OK 59, 725 P.2d 861, 863; Mayhue v. Mayhue, 1985 OK 68, n. 6, 706 P.2d 890, 893. The order of August 2, 2001, states in its Findings of Fact that: "On May 3, 2001, the Board suspended Defendant's license pending full hearing at the July 2001 Board meeting." (Order at p. 2, emphasis added). We thus construe the order of May 4th as an interlocutory order imposing a temporary suspension pending a full or complete hearing on the license.⁵ We conclude that the appellate challenge to the interlocutory May 4th order is timely if the petition in error is timely to challenge the order of August 2, 2001.

II. THE ORDER OF AUGUST 2, 2001

¶ 10 The timeliness of the petition in error to challenge the August 2nd order is based upon Pinaroc's Motion for Rehearing before the Board. The efficacy of Motions for Rehearing or New Trial to extend time to appeal depend upon the governing authority for the court or tribunal where such motions are filed.⁶ The State Board of Medical Licensure and Supervision is subject to the provisions of the Oklahoma Administrative Procedures Act (75 O.S.1991 §§ 250.1-323, as amended).⁷ That Act states that within ten days of a final agency order an application may be made to the agency for rehearing or reconsideration of that motion. 75 O.S.Supp. 1992 § 317 states in pertinent part.

§ 317. Rehearing, reopening or reconsideration of agency decision

A. A final agency order issued by an administrative head of an agency shall be subject to rehearing, reopening or reconsideration by such administrative head. Any application or request for such rehearing, reopening or reconsideration shall be made by any party aggrieved by the final agency order within ten (10) days from the date of the entry of such final agency order.

E. If an application for rehearing shall be timely filed, the period within which judicial review, under the applicable statute, must be sought, shall run from the final disposition of such application.

75 O.S.Supp.1992 § 317, emphasis added.

The next question is whether § 317 applies to an agency decision appealed directly to this Court.

¶ 11 Section 318 of the Administrative Procedures Act states that the judicial review of those final agency orders appealable to the Supreme Court is controlled by "the applicable provisions of Sections 319 through 324 of this title, and the rules of the Supreme Court." 75 O.S.Supp.1992 § 318(B)(1).⁸ Section 317 is not listed in the set of statutes (§§ 319-324), expressly made applicable to an appeal in the Supreme Court. But appeals pursuant to § 318 involve review of "final...