State ex rel. Marler v. State Bd. of Optometry, WD
| Decision Date | 29 November 1994 |
| Docket Number | No. WD,WD |
| Citation | 898 S.W.2d 559 |
| Parties | STATE of Missouri, ex rel. Robert E. MARLER, Relator, v. STATE BOARD OF OPTOMETRY, Respondent. 49418. |
| Court | Missouri Court of Appeals |
Kevin A. Thompson, Jefferson City, for relator.
Jeremiah W. (Jay) Nixon, Atty. Gen., Donna Ann Coleman, Asst. Atty. Gen., Jefferson City, for respondent.
Before SPINDEN, P.J., and LOWENSTEIN and ELLIS, JJ.
The State Board of Optometry seeks to discipline Robert E. Marler's certificate to practice optometry in Missouri. Marler challenges the board's power to do so without obtaining authorization by the Administrative Hearing Commission (AHC).
Marler practiced under a conditional certificate of registration issued to him in compromise of his disagreements with the board. On May 19, 1993, the board notified Marler that it believed that he had violated the conditions imposed on his certificate and that it had scheduled a hearing to determine whether to inflict further discipline. Marler filed a petition for writ of prohibition contending that the board had no authority to conduct a hearing without AHC authorization. The trial court issued a preliminary writ, but quashed it on March 30, 1994. Marler appeals the order quashing the preliminary writ. We reverse.
This court has jurisdiction to consider Marler's appeal. An order quashing a preliminary writ is an appealable, final judgment. Missouri Department of Social Services v. Administrative Hearing Commission, 826 S.W.2d 871, 872 (Mo.App.1992).
Marler's conditional certificate resulted from an agreement he entered into with the board in settlement of the board's earlier attempt to revoke his certificate. Pursuant to § 336.110.2, 1 the board had filed a complaint with the AHC seeking authorization to discipline Marler's certificate. On June 4, 1987, the AHC concluded that cause existed to discipline the certificate, and the board revoked it. Pursuant to § 536.100, Marler appealed to circuit court.
In January 1990, while his appeal was pending, Marler sought a new certificate. 2 On May 22, 1991, the board denied his application. Pursuant to § 336.110.1, 3 Marler complained to the AHC that the board had wrongly denied his application. While that complaint was pending at the AHC, the board and Marler entered into a settlement agreement which provided:
A. [The board] shall issue a license to [Marler] which shall be placed on probation for a period of five (5) years[.]
....
B. Upon the determination of the Board that [Marler] has failed to comply with the terms of this consent order, the Board may revoke [Marler's] license or may take such other or additional disciplinary action against [Marler's] license as the Board deems appropriate.
This agreement settled both his case pending on appeal and the second action pending before the AHC. The AHC responded to the settlement agreement with this order:
On July 31, 1991, the parties filed with this Commission a "Joint Stipulation of Facts, Waiver of Hearing Before the Administrative Hearing Commission and Consent Order with Joint Proposed Findings of Fact and Conclusions of Law[.]" Upon review of this document, this Commission finds that the parties have knowingly and voluntarily entered into a settlement in this matter and have freely waived their right to a hearing before this Commission. Further, this Commission finds as true the facts agreed to by the parties[.] Pursuant to § 536.060, RSMo 1986, and 1 CSR 15-2.150(1), this Commission adopts the terms of the stipulation and agreement filed by the parties.
Accordingly, this Commission incorporates into this Consent Order and issues as its own the proposed order, agreed to by the parties, as it appears on pages 4 to 8 of the "Joint Stipulation of Facts, Waiver of Hearing Before the Administrative Hearing Commission and Consent Order with Joint Proposed Findings of Fact and Conclusions of Law."
On May 19, 1993, the board notified Marler that it believed that he had violated the conditions imposed on his certificate, and it scheduled a hearing for July 10, 1993, to receive evidence concerning the alleged violations. The board granted Marler's request for a continuance and reset the hearing for October 1993. On October 7, 1993, the trial court issued a preliminary writ prohibiting the hearing. After a hearing on March 28, 1994, the court quashed its preliminary writ on March 30, 1994. In its order, the trial court said:
On July 31, 1991, Marler and the Board filed a Joint Stipulation of Facts, Waiver of Hearing Before the Administrative Hearing Commission and Consent Order with Joint Proposed Findings of Fact and Conclusions of Law[.] The AHC adopted the Joint Stipulation on August 1, 1991.
The Joint Stipulation has no findings of fact or conclusions of law which conclude that Marler is qualified for licensure. Neither are there findings or conclusions which conclude that Marler is subject to further discipline by the Board. The Joint Stipulation is an agreement between the parties to a modification of the Board's previous order of revocation. In the Joint Stipulation, the parties agree that Marler will be issued an optometry license on probation with terms and conditions as set forth. The Board had authority to modify its order of revocation. Pursuant to the Joint Stipulation the AHC dismissed Marler's appeal.
On May 19, 1993, the Board filed its Complaint alleging that Marler violated the terms of his probation. Subsequently, the Board set a hearing to determine the truth of the allegations set forth in the Complaint. This hearing was stopped by this Court's preliminary Order in Prohibition.
....
The Board has jurisdiction to hold a hearing to determine if Marler has violated the terms of his probation. If the Board exceeds its jurisdiction there is an adequate remedy at law on appeal pursuant to § 536.140.2(2).
In his first point on appeal, Marler concedes that if the August 1991 agreement legally placed his certificate on probation, he is subject to the further discipline the board now seeks. He argues, however, that he "is not on probation, and the 1991 Agreement was ineffective in its attempt to impose probation upon him." The reason, he asserts, is that the AHC did not make an independent determination that cause existed to discipline the new certificate about to be issued to Marler, and § 336.110.3 requires that determination. We agree.
Section 336.110.3 says:
Upon a finding by the administrative hearing commission that the grounds, provided in subsection 2, for disciplinary action are met, the board may, singly or in combination, censure or place the person named in the complaint on probation on such terms and conditions as the board deems appropriate for a period not to exceed five years, or may suspend, for a period not to exceed three years, or revoke the license, certificate, or permit.
This statute makes the board's power to place a certificate on probation...
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