Warmouth v. Delaware State Bd. of Examiners in Optometry

• Citation: 514 A.2d 1119
• Parties: Whitfield E. WARMOUTH, Appellant, v. DELAWARE STATE BOARD OF EXAMINERS IN OPTOMETRY, Appellee. . Submitted:
• Decision Date: 06 March 1985
• Court: Delaware Superior Court

Page 1119

514 A.2d 1119

Whitfield E. WARMOUTH, Appellant, v. DELAWARE STATE BOARD OF EXAMINERS IN OPTOMETRY, Appellee.

Superior Court of Delaware Kent County.

Submitted: March 6, 1985.

Decided: March 6, 1985.

Upon Appeal from Decision of the Delaware State Board of Examiners in Optometry. Decision Affirmed.

Nicholas H. Rodriguez, Schmittinger & Rodriguez, P.A., Dover, for appellant.

Edward F. Kafader, Deputy Atty. Gen., Dept. of Justice, Wilmington, for appellee.

BUSH, Judge.

This is an appeal by Dr. Whitfield E. Warmouth from a decision of the Delaware State Board of Examiners in Optometry ("Board") revoking his certification of registration to practice optometry for five years followed by fifteen years probation.

Prior to the Board's action, Dr. Whitfield E. Warmouth was convicted of two counts of sexual assault in the Court of Common Pleas. The two counts which were tried together were the result of complaints by two patients of Dr. Warmouth's. One patient charged him with sexual contact on December 8, 1981; the other charged him with sexual contact on June 7, 1983. Each information filed in the Court of Common Pleas alleged that Dr. Warmouth "placed his naked penis in contact with the hand of [the patient], knowing that the contact occurred without the consent of [the patient], in violation of 11 Del. C. § 761(2)." The jury returned a verdict of guilty and in March, 1984, Dr. Warmouth was sentenced to pay a fine of $1,000 and was placed on two years' probation with a condition of his probation being that he obtain psychiatric treatment. No appeal was taken from the verdict or the sentence imposed in the Court of Common Pleas.

The Department of Justice then filed a complaint with the Board, pursuant to 24 Del. C. § 2101, et seq. The Board was requested to conduct a hearing to determine whether his certificate of registration should be revoked or suspended because of his conviction of two charges of sexual assault and because of unprofessional conduct arising out of these incidents and two other alleged incidents involving two other women.

The Board, consisting of three optometrists, heard the testimony of Dr. Warmouth, his probation officer, and his psychiatrist. The State presented no witnesses, but placed in evidence the two informations and copies of the convictions in the Court of Common Pleas. Also in evidence was a stipulation entered into by the State and Dr. Warmouth stating that pursuant to a prior order of the Board, Dr. Warmouth would not "dispute the facts of his convictions or the underlying facts which gave rise to those convictions as contained in the informations." A prior order of the Board had determined that the doctrine of collateral estoppel barred Dr. Warmouth from relitigating the facts before the Board. As part of the stipulation, the State withdrew the allegations in the complaint before the Board involving the two other women.

The Board's findings of fact stated that it was undisputed that Dr. Warmouth committed the two offenses as charged in the informations; that it was undisputed that Dr. Warmouth has a history of professional and civic achievements; that his psychiatrist was pleased with his progress and that his probation officer believed he was a model probationer; and both felt he would not engage in the future in the type of criminal conduct for which he was convicted.

The Board concluded that Dr. Warmouth's acts justified revocation on three statutory grounds:

(1) the conviction of a crime, pursuant to 24 Del.C. § 2113(a)(1);

(2) unprofessional conduct, pursuant to 24 Del.C. § 2113(a)(6);

(3) violation of a Board rule or regulation, pursuant to 24 Del. C. § 2113(a)(7)(g), specifically Board Rule 4.01 (g) which requires a licensee to "[C]onduct themselves as exemplary citizens."

The duty of the Court in reviewing administrative decisions is to ascertain if the agency's findings are supported by substantial evidence and free from legal error. Ridings v. Unemployment Insurance Appeal Board, Del.Super., 407 A.2d 238 (1979). This requires the Court to search the entire record to determine if the agency could have fairly and reasonably reached the conclusion that it did. National Cash Register v. Riner, Del.Super., 424 A.2d 669, 674, 675 (1980). If the record below shows that there was substantial evidence to support the decision and the Board correctly applied the law to the facts, it would be the duty of the court to sustain the Board, even though the court would have decided otherwise had the matter come before it in the first instance. Searles v. Darling, 46 Del. 263, 83 A.2d 96, 99 (1951). As to discretionary decisions of an agency, the standard is whether the agency acted arbitrarily or capriciously. Spear v. Blackwell & Son, Inc., Del. Super., 221 A.2d 52, 55 (1966).

The Court first considers Dr. Warmouth's contention that the Board erred in its pre-hearing ruling which precluded him from contesting and relitigating the factual allegations against him as set forth in the informations. The Board correctly relied on the principle of collateral estoppel which is well-settled Delaware law. Foltz v. Pullman, Inc., Del.Super., 319 A.2d 38 (1974). Dr. Warmouth posits a "general rule" that a judgment of conviction in a criminal prosecution does not establish in a subsequent civil action the truth of the facts on which it was rendered. However, this rule is subject to a number of exceptions and limitations and the trend is in favor of admission of such evidence. See Restatement (Second) of Judgments § 85 (1982); 46 Am.Jur.2d Judgments § 618 (1969).

In the instant proceeding, application of such a rule is particularly inappropriate. A conviction of a crime may be the sole basis for revocation of a license under the provisions of 24 Del. C. § 2113(a)(1). The use of the word "conviction" declares the conclusive effect which the law already has given to an adjudication of guilt. This Court adopts the reasoning of South Carolina State Dental Examiners v. Breeland, 208 S.C. 469, 38 S.E.2d 644 (1946). In a proceeding to revoke a dental license, the Breeland court held that the judgment of conviction of rape was conclusive evidence of the facts involved. In Breeland the court stated that the cases supporting the general rule:

" ... involved purely civil actions between private litigants where the rights of the general public were not involved. ... In none of them were the actions quasi public in form and character. The instant action is a special proceeding brought by an agency of the State for the benefit of the general public. The State has a right under its police power to define the qualifications one shall possess in order to engage in the practice of dentistry and, in doing so, may properly require that such a person should not only possess the necessary technical skill, but also the qualifications of honor and good moral character ... Respondent has had his day in court and has been...