State Bd. of Registration for Healing Arts of Missouri v. De Vore, KCD

• Decision Date: 07 October 1974
• Docket Number: No. KCD,KCD
• Citation: 517 S.W.2d 480
• Parties: STATE BOARD OF REGISTRATION FOR the HEALING ARTS OF MISSOURI, Respondent, v. Alan F. DE VORE, Appellant. 26287.
• Court: Missouri Court of Appeals

Page 480

517 S.W.2d 480

STATE BOARD OF REGISTRATION FOR the HEALING ARTS OF MISSOURI, Respondent, v. Alan F. DE VORE, Appellant.

No. KCD 26287.

Missouri Court of Appeals, Kansas City District.

Oct. 7, 1974.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Dec. 2, 1974.

Application to Transfer Denied Jan. 13, 1975.

Arthur A. Benson II, Kansas City, for appellant.

John C. Danforth, Atty. Gen., of Mo., Jefferson City, Albert J. Stephan, Jr., St. Louis, for respondent.

Before PRITCHARD, P.J., SOMERVILLE, J., and WILLIAM J. MARSH, Special Judge.

WILLIAM J. MARSH, Special Judge.

This is an appeal from the judgment of the Circuit Court of Cole County reversing the decision of the Administrative Hearing Commission and involves administrative proceedings conducted and reviewed in accordance with §§ 161.252 through 161.342 and §§ 536.100 through 536.140 (all statutory references being to RSMo 1969, V.A.M.S., unless otherwise indicated). Our review is authorized and governed by Mo. Const. Art. V, § 3; § 536.140; Bittiker v. State Board of Registration for the Healing Arts, 404 S.W.2d 402, 404(1) (Mo.App.1966).

Appellant, an osteopathic physician, was licensed to practice in Missouri in September 1948. Thereafter, appellant was licensed to practice and practiced in other states including, Michigan, Georgia, Texas and Kentucky.

In March of 1951, appellant was convicted on his plea of guilty to a charge of unlawfully selling fifty grams of morphine in violation of 26 U.S.C. § 2554(a) (I.R.C. 1939) now 26 U.S.C. § 4705) in the United States District Court for the Eastern District of Michigan. Imposition of sentence was suspended and appellant was placed on probation for two years. Appellant successfully completed the period of probation adjudged.

In November of 1964, appellant was convicted in United States District Court for the Southern District of Texas, Brownsville Division, on his plea of guilty to a charge of introducing quantities of misbranded drugs with the intent to defraud and mislead persons and members of the general public into interstate commerce in violation of 21 U.S.C. § 331(a). Appellant was sentenced to a term of three years in prison and a fine of $2,500.00 was imposed. Execution of the sentence of imprisonment was suspended and appellant was placed on probation for a period of five years on the further condition that appellant pay the fine imposed. Appellant satisfied the conditions of that probation, which was terminated November 19, 1969.

It appeared that since 1964, appellant practiced in Georgia for a period of time, served substantial periods of residencies in pathology at medical institutions in New York and New Jersey, completed a twenty-four month period of service as a pathology resident and instructor at Creighton University School of Medicine at Omaha, Nebraska, and became a member of the staff of the Winfield State Hospital and Training Center at Winfield, Kansas, and has not engaged in any unlawful or immoral conduct since 1964, but has been a moral, law-abiding citizen since that time. It further appeared that appellant's licenses in Georgia, Texas and Kentucky have been terminated.

No Missouri annual certificates of registration for the fiscal years of 1967--1968 and 1968--1969 were issued appellant. A meeting with the State Board of Registration for the Healing Arts in March 1969 resulted in the Board's declination to issue appellant such a certificate.

In October of 1969, a hearing was had before the Administrative Hearing Commission on the Board's complaint on the issue of whether appellant's Missouri license should be suspended or revoked in accordance with § 161.282. Appellant did not appear in person or by attorney. On the evidence presented, the Administrative Hearing Commission found that between April 1, 1962 and March 20, 1964, and in the territorial jurisdiction of the United States District Court for the Southern District of Texas appellant conspired to sell and sold a clear liquid in glass ampoules and vials represented to be useful and helpful in the treatment and therapy of certain medical conditions including cancer, tuberculosis and leprosy knowing such liquid was not useful and helpful in the treatment of the diseases; that on November 18, 1964 appellant was convicted of the felony of the interstate sale of misbranded drugs with intent to defraud and mislead persons and members of the general public and that on January 12, 1951, appellant unlawfully sold fifty grams of morphine within the territorial jurisdiction of the United States District Court for the Eastern District of Michigan. The Commission concluded that such conduct constituted dishonorable and unprofessional conduct proscribed by § 334.100 and recommended that appellant's license be revoked. In January of 1970 the respondent Board revoked appellant's license. Appellant did not seek judicial relief from either decision and order.

An exchange of correspondence between appellant and the Board regarding appellant's obtaining licensure followed and continued until January 13, 1972. On that date appellant was advised that the Board had decided to take no action on appellant's request for licensure. Appellant then wrote the Administrative Hearing Commission stating the Board's decision to take no action on this request for licensure. The Commission treated appellant's letter as a complaint in accordance with § 161.302 and set the matter for hearing. Respondent filed a motion to dismiss the cause for the reason that the letter failed to state the facts upon which a claim for relief may be granted under § 161.302 and Rules 3.00 and 3.01 of the Administrative Hearing Commission. Prior to the hearing, appellant wrote another letter to the Commission setting forth, in considerable detail, facts of his original licensure, his subsequent practice, his involvement in the heretofore mentioned crimes and the results thereof, the Board's revocation of his license and his subsequent unfruitful efforts to regain licensure. This letter was accepted and filed by the Commission as an amended complaint. Immediately prior to the hearing conducted on February 25, 1972, the respondent withdrew its motion to dismiss which was directed to appellant's first letter to the Commission, filed as the complaint originating the proceedings.

The foregoing facts and events were developed in the evidence received at the hearing, which consisted largely of the testimony of appellant and his wife and exhibits offered by appellant and respondent and received at the hearing. Other evidence presented at the hearing will be set forth as it relates to the issues resolved herein.

The Commission subsequently made its findings of fact and conclusions of law, finding essentially most of the facts set forth above and concluding that appellant was authorized to apply for a new license by § 334.031 even though his previous license had been revoked; that there is no statutory provision contained in Chapter 334 RSMo 1969, V.A.M.S., prohibiting the Board from issuing a new license to a physician whose license had been previously revoked; that in issue and for consideration is appellant's present moral character, as determined by the nature and extent of his rehabilitation since 1964; that respondent's answer to the complaint as amended did not raise an issue as to any educational disqualification of appellant, and that respondent has not met with appellant for the purpose of examining appellant's evidence of his present moral character for the purpose of determining whether he meets the qualification of good moral character required by § 334.031. The Commission ordered the Board to 'meet with Petitioner in the near future and conscientiously consider his qualifications as a candidate for licensure pursuant to § 334.031 RSMo 1969 (V.A.M.S.)' and continued the case indefinitely pending further determination by the Board of appellant's qualifications accordingly.

The Board sought and obtained judicial review under Chapter 536 RSMo 1969, V.A.M.S., and Rule 100. The circuit court reversed, holding, inter alia, that the determination of the rehabilitation of a party whose license has been revoked is a matter within the discretion of the Board and is not subject to review or control by the Hearing Commission or the courts; that the Commission's November 1969 finding that appellant engaged in dishonorable and unprofessional conduct in that he had been convicted of a felony and the Board's January 23, 1970 revocation of appellant's license are final adjudications; that appellant's complaint, as amended, does not come within the provisions of § 161.302 and that the Administrative Hearing Commission had no authority to entertain the complaint; that the Board acted within the authority granted it under § 334.100 and that the Commission's order requiring the Board to meet with appellant and continuing the case indefinitely was in excess of its statutory authority.

It is readily apparent that the initial issue to be resolved is whether, under Chapter 334 RSMo, a new license to practice medicine and surgery in this state may be granted to a person who has previously been found to have engaged in unprofessional and dishonorable conduct, who has been convicted of a felony and whose license to so practice has been revoked as a direct result thereof. The trial court held, and respondent Board contends in effect, that the previous and final finding of such conduct and conviction and disciplinary order ordering revocation (and the revocation) in this case is a final adjudication, determining the issue and vesting solely the Board with discretion to make such a determination and that the Administrative Hearing Commission has no jurisdiction to entertain a complaint upon the Board's exercise of its discretion and refusal to permit examination upon qualifications for licensure. Appellant argues that because of administrative due process requirements...