Varoz v. New Mexico Bd. of Podiatry

• Decision Date: 25 July 1986
• Docket Number: No. 16010,16010
• Citation: 1986 NMSC 51,722 P.2d 1176,104 N.M. 454
• Parties: Ted VAROZ, D.P.M., Petitioner-Appellant, v. NEW MEXICO BOARD OF PODIATRY, Respondent-Appellee.
• Court: New Mexico Supreme Court

Page 1176

722 P.2d 1176

104 N.M. 454

Ted VAROZ, D.P.M., Petitioner-Appellant, v. NEW MEXICO BOARD OF PODIATRY, Respondent-Appellee.

No. 16010.

Supreme Court of New Mexico.

July 25, 1986.

Winston Roberts-Hohl, Santa Fe, for petitioner-appellant.

Paul Bardacke, Atty. Gen., Lyn Hebert, Asst. Atty. Gen., Santa Fe, for respondent-appellee.

OPINION

WALTERS, Justice.

Dr. Varoz appeals from the order of the district court affirming the New Mexico Board of Podiatry's revocation of his professional license. Following indictment in January 1983, Dr. Varoz was convicted in federal district court on eight of twenty-five counts of Medicare fraud, on May 13, 1983. On August 15, 1983, the Board issued its Notice of Contemplated Action to suspend or revoke Varoz's license. After two preliminary hearings, in which Varoz disqualified certain of the Board members, a hearing on the merits was held on March 24, 1984.

The Board's decision on May 23, 1984 included findings that: (1) Varoz had been convicted of eight felonies relating directly to the practice of his profession; (2) each conviction constituted a separate and independent ground for revoking his license under the Podiatry Act, see NMSA 1978, Sec. 61-8-11(B) (Repl.Pamp.1986), and the Criminal Offender Employment Act, see NMSA 1978, Sec. 28-2-4(A)(1) (Repl.Pamp.1983); (3) Varoz had not been rehabilitated; (4) on April 9 and September 3, 1981, Varoz had in fact submitted the fraudulent Medicare claims which formed the basis for his convictions under Counts XIX and XIV, respectively; and (5) submission of the two false claims constituted dishonest and unprofessional conduct in violation of Section 61-8-11(J) and Rule VIII(b) of the New Mexico Board of Podiatry.

On July 20, 1984, after the Santa Fe District Court had affirmed the Board's decision, the Tenth Circuit Court of Appeals reversed five of Varoz's convictions. Varoz raises three issues in this appeal:

(1) The Board proceedings were infected with bias because the chairman had previously reviewed for Medicare the claims upon which Varoz's convictions were based.

(2) In light of rebuttal evidence presented at the disciplinary hearing, the Board erred in basing its decision in part on the fact of conviction under Count XIV, which had alleged that surgery for which a Medicare claim for payment had been submitted by Dr. Varoz on September 3, 1981 had not been performed.

(3) The statute of limitations for an action to revoke a professional license had run with respect to all of Varoz's convictions except one.

We affirm the district court, discussing the issues in reverse order.

I. Statute of Limitations

The Podiatry Act, NMSA 1978, Secs. 61-8-1 to -17 (Repl.Pamp.1981), lists ten "reasons" for which a license may be refused, revoked or suspended, including "conviction of a crime involving moral turpitude." Sec. 61-8-11(B). See also Section 28-2-4(A) of the Criminal Offender Employment Act, NMSA 1978, Secs. 28-2-1 to -6 (Repl.Pamp.1983). The Statute of Limitations of the Uniform Licensing Act, NMSA 1978, Secs. 61-1-1 to -31 (Repl.Pamp.1986), however, requires interaction with its provisions by declaring that no action which would result in refusal, suspension, or revocation of a license "may be initiated by a board later than two years after the conduct which would be the basis for the action." Sec. 61-1-3.1(A) (emphasis added.)

Dr. Varoz argues, and correctly we think, that although the fact of conviction may provide a separate and independent basis for revoking a professional license, a conviction is not "conduct" within the meaning of Section 61-1-3.1(A) and, therefore, the two-year limitation period began to run from the time of the conduct, transaction, or occurrence that underlay the conviction rather than from the date of conviction.

The Uniform Licensing Act, enacted in 1957, is to be construed in such a fashion that its express purpose of promoting uniformity with regard to the conduct of board hearings be carried out. Sec. 61-1-28. When a professional licensing board conducts a disciplinary hearing, it is acting as an arm of the sovereign to enforce public rights. See Board of Dental Examiners v. Breeland, 208 S.C. 469, 38 S.E.2d 644 (1946). Under such circumstances, statutes of limitations do not run against the sovereign unless the statute so provides expressly or by clear implication. Board of Education v. Standhardt, 80 N.M. 543, 458 P.2d 795 (1969); see also Board of Medical Examiners v. Jorgensen, 198 Colo. 275, 599 P.2d 869 (Colo.1979).

The legislature is presumed to have known of the provisions of Sections 28-2- 4(A) (enacted in 1974) and 61-8-11(B) (enacted in 1977) when, in 1981, it added a statute of limitations to the Uniform Licensing Act. Because the legislature is presumed to have been well informed and reasonable when it enacted Section 61-1-3.1, we must interpret the statute according to common sense and reason, Sandoval v. Rodriguez, 77 N.M. 160, 420 P.2d 308 (1966); give its words their usual and ordinary meaning unless a contrary intent is clearly indicated, State ex rel. Duran v. Anaya, 102 N.M. 609, 698 P.2d 882 (1985); give effect to every part of the statute, Weiland v. Vigil, 90 N.M. 148, 560 P.2d 939 (Ct.App.), cert. denied, 90 N.M. 255, 561 P.2d 1348 (1977); and construe it as a harmonious whole. General Motors Acceptance Corp. v. Anaya, 103 N.M. 72, 703 P.2d 169 (1985). See also Atencio v. Board of Education, 99 N.M. 168, 655 P.2d 1012 (1982). Applying all of these rules of construction, we conclude that to treat a conviction as "conduct" which would commence the running of the two-year limitation period of Section 61-1-3.1(A) would be an interpretation contrary to the plain and ordinary meaning of the words; would render a portion of Subsection (B) of that statute meaningless; would defeat uniformity with respect to the time limit for commencing disciplinary actions under the Uniform Licensing Act; and would produce inconsistent and absurd results.

The primary meaning of "conviction" is "the act or proving, finding, or adjudging a person guilty of an offense or crime." Webster's Third New International Dictionary (1966). Accordingly, if a "conviction" is "conduct," it is conduct attributable to the soverign. Section 61-1-3.1(B) draws a clear distinction between the conduct of the state or sovereign and that of the licensee, and the effect given to each:

The time limitation ... in Subsection A ... shall be tolled by any civil or criminal litigation in which the licensee ... is a party arising from substantially the same facts, conduct [or] transaction ... which would be the basis for the board's action. (Emphasis added).

"We must assume that the legislature chose [its] words advisedly to express its meaning unless the contrary [intent] clearly appears." Weiland v. Vigil, 90 N.M. at 151, 560 P.2d at 942. Under Subsection 61-1-3.1(A), the limitation period begins to run at the time of "the conduct which would be the basis for the [board's] action." Subsection (B) makes it clear that the conduct which forms the basis for the board's action is that of the licensee; the conduct of the state, i.e., the act or process of conviction, operates only to toll the statute once the criminal litigation commences.

It would be contrary to common sense and reason to hold that the same process which tolls the statute will, if successfully completed, start it running anew. To allow the date of conviction to re-commence the running of Section 61-1-3.1(A) would produce an even more absurd result where the limitation period for instituting prosecution of a particular crime is longer than two years: if prosecution were commenced in the third year following the underlying culpable conduct and a conviction subsequently obtained, the limitation period of Section 61-1-3.1(A) would begin to run a second time even after it had expired completely. The provision for tolling during criminal litigation would be totally unnecessary under such an interpretation. Indeed, if so applied to license revocation for conviction of a crime, the legislature need not have enacted a statute of limitations at all.

The fact that the limitation period of Section 61-1-3.1(A) begins to run from the time of the licensee's culpable conduct and is shorter than that for some crimes means that, in some instances, the Board will be unable to use the conviction as a separate and independent ground for license revocation as provided in Sections 28-2-4(A) and 61-8-11(B). This result is not, however, inconsistent with either the policies or the language of the Criminal Offender Employment Act or the Podiatry Act.

Statutes governing the issuance and withdrawal of professional licenses reflect a legislative decision regarding the balance to be struck between the public's need to be protected and the licensee's individual property right to earn a livelihood under a state-conferred license. See Hawker v. New York, 170 U.S. 189, 191, 18 S.Ct. 573, 574, 42 L.Ed. 1002 (1898); Mitchell v. Association of the Bar, 40 N.Y.2d 153, 351 N.E.2d 743, 386 N.Y.S.2d 95 (1976). In New Mexico, the licensee's property right has been recognized as warranting added evidentiary protection and strict compliance with legislatively-prescribed procedural safeguards in the conduct of disciplinary hearings. See Jumbo, Inc. v. State ex rel. Branch, 81 N.M. 223, 465 P.2d 280 (1970); Young v. Board of Pharmacy, 81 N.M. 5, 462 P.2d 139 (1969). Consistent with this policy is the legislature's declaration that revocation of a license to practice podiatry is allowed only in accordance with the procedural safeguards outlined in the Uniform Licensing Act. See Sec. 61-8-11. The limitation period imposed by Section 61-1-3.1(A) of the Licensing Act is one such procedural safeguard that is incorporated into the statute governing the Board of Podiatry's authority to revoke. Id.

The legislature's intention to protect the licensee's property right to the fullest...