Williamson v. Board of Dentistry

• Decision Date: 08 September 1994
• Docket Number: No. 93-AA-247.,93-AA-247.
• Citation: 647 A.2d 389
• Parties: Gary A. WILLIAMSON, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF DENTISTRY, Respondent.
• Court: D.C. Court of Appeals

647 A.2d 389

Gary A. WILLIAMSON, Petitioner, v. DISTRICT OF COLUMBIA BOARD OF DENTISTRY, Respondent.

No. 93-AA-247.

District of Columbia Court of Appeals.

Argued April 21, 1994.

Decided September 8, 1994.

James A. Watson II, Fairfax, VA, for petitioner.

Karen L. McDonald, Asst. Corp. Counsel, with whom John Payton, Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, DC, were on the brief, for respondent.

Before STEADMAN and FARRELL, Associate Judges, and PRYOR, Senior Judge.

STEADMAN, Associate Judge:

Before us is a petition for review of an appeal from the revocation of a dentistry license for a minimum of five years by the District of Columbia Board of Dentistry ("The Board"), based upon four charges of violation of D.C.Code § 2-3305.14(a) (1994). One of the charges was premised on petitioner's prior separate discipline — the summary suspension of his controlled substances registration — by the Department of Consumer and Regulatory Affairs ("DCRA"), another licensing authority. Petitioner argues that this charge was improperly sustained because the summary suspension had previously been dismissed by operation of law and was therefore a "nullity." In addition, he challenges the Board's action with respect to the remaining three charges, also related to controlled substance matters, on the grounds that they were not supported by substantial evidence on the record as a whole and that certain Board conclusions with respect thereto were arbitrary, capricious and not in accordance with law. We affirm.

I.

A dentist who deals with controlled substances must obtain two forms of government authorizations. First, the dentist needs a license to practice dentistry, renewable annually by the Board of Dentistry. D.C.Code §§ 2-3305.1, -3305.10, -3302.1(b) (1994).¹ Second, the dentist must obtain an annual registration, issued by DCRA as the delegee of the Mayor, to dispense controlled substances. D.C.Code §§ 33-532(a), -533(c), -501(20)(A) (1993).² Both the license and the registration are subject to summary suspension and "permanent"³ suspension or revocation proceedings.

On August 28, 1991, DCRA issued notice of summary action to suspend petitioner's registration to dispense controlled substances pursuant to D.C.Code § 33-535(b)(1), notice of intent to permanently suspend or revoke his registration pursuant to D.C.Code § 33-534(a), and notice of summary action to suspend petitioner's dentistry license, pursuant to D.C.Code § 2-3305.15(a).⁴

Following a hearing, an administrative law judge ("ALJ") in an order of September 27, 1991, sustained the summary suspension of the registration but set aside the summary suspension of the licence.⁵ Subsequently, on November 7, 1991, the same ALJ dismissed the notice to permanently revoke petitioner's registration since the basis for permanent revocation, the suspension of petitioner's license,⁶ was no longer extant and since the registration had expired by its own terms on September 30, 1991.

On January 8, 1992, the Board issued a notice of intent to take disciplinary action against petitioner's license setting forth four charges: (1) that petitioner was "disciplined by a licensing and disciplinary authority DCRA for conduct that would be grounds for discipline" by the Board, pursuant to § 2-3305.14(a)(3); (2) that petitioner fraudulently or deceptively used his license to obtain Schedule II controlled substances, in violation of D.C.Code § 2-3305.14(a)(2), 22 DCMR § 1301.1, 21 C.F.R. § 1306.4 (1993);⁷ (3) that petitioner "failed to keep records and to maintain an inventory of Schedule II controlled substances in violation of federal and District of Columbia laws and regulations," D.C.Code § 33-536, 21 C.F.R. § 1304.03 (1993);⁸ and (4) that petitioner failed to make, keep or furnish inventory records, order forms and invoices to the Drug Enforcement Administration ("DEA") investigator in violation of D.C.Code §§ 33-542(a)(3), -536, 2-3305.14(a)(25), 21 C.F.R. §§ 1305.03, 1305.13 (1993).⁹

After a two day hearing on this matter, the Board, on December 12, 1992, sustained all four charges, revoked petitioner's license and imposed several conditions on reinstatement including a five year minimum period of revocation, completion of 30 hours of education on record-keeping and ethics, and production of specific evidence that petitioner had not abused alcohol and other substances during the revocation period. Petitioner seeks review of that action in this court. D.C.Code § 11-722 (1989).

II.

With respect to charge one, petitioner argues that the Board overlooked that "the summary suspension of the registration to dispense controlled substances necessarily terminated on November 7, 1991 when the Administrative Law Judge dismissed the proceeding entitled Notice of Intent to Revoke Registration to Dispense Controlled Substances," and that the Board therefore "erroneously concluded that the summary suspension amounted to being disciplined by a licensing authority." He argues, in substance, that the summary suspension was only an interlocutory and temporary remedy and that when the permanent revocation proceeding was dismissed, the summary suspension became a "nullity."

The statutory provision authorizing the Board to impose disciplinary action upon a dentist, including revocation of a license, permits such action where the dentist has been "disciplined by a licensing or disciplinary authority... for conduct that would be grounds for disciplinary action" by the Board pursuant to § 2-3305.14. D.C.Code § 2-3305.14(a)(3). Included among permissible grounds for discipline by the Board is conduct whereby a licensee "violates the statutory authorities of the Department of Consumer and Regulatory Affairs as defined in Reorganization Plan No. 1 of 1983, and all applicable District laws and rules and regulations." Id. § 2-3305.14(25). Here, the Board concluded that the conduct found by the ALJ to support the summary suspension of the registration would also support action by the Board under § 2-3305.14(25), and hence sustained charge one based upon that violation. The Board rejected petitioner's argument that the summary suspension had become a "nullity" and concluded that "dismissal of the notice of intent to revoke or suspend did not void or `dissolve' the summary suspension as a disciplinary action which was complete when taken."

We deal here with an agency's interpretation of a statute it administers, to which we give particular deference. District of Columbia Metro. Police Dep't v. Perry, 638 A.2d 1138, 1144 (D.C.1994) ("this court gives special deference to an agency in the agency's interpretation of a statute that the agency is empowered to administer and enforce"); Kates v. District of Columbia Rental Hous. Comm'n, 630 A.2d 1131, 1133 (D.C.1993) (this court will defer to interpretation of statute that agency administers unless inconsistent with applicable statute); Smith v. District of Columbia Dep't of Employment Servs., 548 A.2d 95, 97 (D.C.1988) ("agency's interpretation of the statute it administers is binding on this court unless it conflicts with the plain meaning of the statute or its legislative history"). We think that petitioner overstates the effect of the dismissal of the proceeding to permanently revoke the registration and that the Board permissibly concluded that the summary suspension here could be treated as prior "discipline" within the meaning of D.C.Code § 2-3305.14(a)(3).

A summary suspension of a registration is authorized by D.C.Code § 33-535(b). It is initially imposed, simultaneously with the institution of permanent suspension or revocation proceedings under § 33-534(a), to prevent "imminent danger to the public health or safety." D.C.Code § 33-535(b)(1). A summary suspension may be instituted without prior notice or hearing, id., and it is designed to protect against emergency situations such as an outbreak of a serious fire on premises in which controlled substances are stored or where there are grossly inadequate security measures. Id. A summary suspension continues in effect "until the conclusion of proceedings, including judicial review thereof, unless sooner withdrawn by the Mayor or dissolved by a court of competent jurisdiction." Id. § 33-535(b)(2).

However, although initially imposed without a hearing, a summary suspension of registration cannot be continued without providing to the person affected the full panoply of due process rights. Within five days after the institution of summary suspension proceedings, unless the respondent requests more time, a hearing must be provided, held in accordance with the District of Columbia Administrative Procedure Act, including the right of judicial review. D.C.Code § 33-535(a). The process thus provided and the requisite level of proof¹⁰ are indeed coextensive with that provided for proceedings to permanently revoke the registration. D.C.Code § 33-535(a); 22 DCMR § 1102.4 ("all procedures relating to hearings as set forth in this chapter shall apply to hearings in summary suspensions").

Accordingly, petitioner was here provided with such a hearing, which extended over three days and was attended by petitioner and his counsel. Following that hearing, the ALJ concluded that the District had met its burden of proving by substantial evidence that the summary suspension of the registration was necessary to prevent "imminent danger to the public health and safety" as required by the statute, basing this conclusion on the fact that petitioner had not taken adequate safeguards to insure proper and documented inventory and dispensing controls of controlled substances. Specifically, the ALJ found that "there is strong and unrefuted evidence that prescriptions were written for two of petitioner's patients ... and that these two patients either did not receive the prescriptions, did not use the medication prescribed ..., have never used the medication...