Caldwell v. ARIZONA STATE BD. OF DENTAL EXAM.

670 P.2d 1220, 137 Ariz. 395
CourtCourt of Appeals of Arizona
DecidedSeptember 22, 1983
Docket1 CA-CIV 6620
StatusPublished
Cited by4 cases

This text of 670 P.2d 1220 (Caldwell v. ARIZONA STATE BD. OF DENTAL EXAM.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Caldwell v. ARIZONA STATE BD. OF DENTAL EXAM., 670 P.2d 1220, 137 Ariz. 395 (Ark. Ct. App. 1983).

Opinion

137 Ariz. 395 (1983)
670 P.2d 1220

Walter W. CALDWELL, Plaintiff-Appellant, Cross Appellee,
v.
ARIZONA STATE BOARD OF DENTAL EXAMINERS, Defendant-Appellee, Cross Appellant.

No. 1 CA-CIV 6620.

Court of Appeals of Arizona, Division 1.

September 22, 1983.

*397 Marton, Halladay & Hall, P.A. by Michael S. Halladay, II, Phoenix, for plaintiff-appellant, cross appellee.

Robert K. Corbin, Atty. Gen. by Charles E. Buri, Asst. Atty. Gen., Phoenix, for defendant-appellee, cross appellant.

OPINION

EUBANK, Judge.

This appeal arises out of a decision by the appellee Arizona State Board of Dental Examiners (Board) to suspend appellant Walter W. Caldwell's (Caldwell) certificate for the practice of denture technology. Pursuant to A.R.S. § 12-901 et seq., Caldwell appealed the administrative decision of the Board to the superior court. The matter was heard and remanded to the Board for "rehearing upon completion by the Board of promulgated rules and regulations." Caldwell has appealed to this court from the superior court's judgment. The Board has filed a cross-appeal.

The basis of the trial court's action was that the Board had proceeded with disciplinary action against Caldwell in contravention of A.R.S. § 32-1295.C (Supp. 1980). That section provides:

In all matters relating to discipline and certifying of denturists and the giving and grading of examinations, the board shall, by rule and regulation, provide for receiving the assistance and advice of denturists who have been previously certified pursuant to this chapter.

It is undisputed by the parties that no rules and regulations providing for denturists' assistance had been enacted at the time of the Board's action against Caldwell.

Caldwell argues that: (1) remand to the Board was improper because it permits the Board to proceed against Caldwell for conduct which occurred prior to the promulgation of the requisite rules and regulations, and (2) if remand is appropriate, it should require more than a rehearing before the Board. The remand should also extend to the initial stages of the disciplinary proceedings.[1] The state's cross-appeal challenges the remand on the grounds that the failure to promulgate rules under A.R.S. § 32-1295.C does not render the Board's decision invalid. It contends that the language of A.R.S. § 32-1295.C should be deemed merely directory and not mandatory.

Our analysis of these issues commences with the general proposition that the powers and duties of an administrative agency are measured and limited by the statute creating them. Ayala v. Hill, 136 *398 Ariz. 88 at 90, 664 P.2d 238 at 240 (Ct.App. 1983). Here, the language of the statute is clear that the Board must provide for and receive the assistance and advice of certified denturists in all disciplinary matters. A.R.S. § 32-1295.C. Therefore, there is no room for judicial construction of this language, Smith v. Pima County Law Enforcement Council, 113 Ariz. 154, 157, 548 P.2d 1151, 1154 (1976), and we reject the state's position that this language is merely directory and not a prerequisite to valid disciplinary actions by the Board. This court and the Board must follow the meaning of the statute as written, see, e.g., Ross v. Industrial Commission, 112 Ariz. 253, 256, 540 P.2d 1234, 1237 (1975), and we believe that to do so gives Caldwell the rights the legislature intended to convey to denturists in disciplinary proceedings. Accord Dept. of Revenue v. Southern Union Gas Co., 119 Ariz. 512, 582 P.2d 158 (1978). We therefore agree with the trial court that Caldwell's procedural due process rights were violated by the Board's noncompliance with its statutory duty, thus rendering the disciplinary actions taken against him voidable. Id.

We must next consider whether remand to the Board was the appropriate form of relief. Caldwell argues that remand is improper because A.R.S. § 32-1295.C is more than a procedural provision and implicitly requires the Board to devise substantive standards governing the conduct of denturists. Caldwell argues further that once the Board promulgates those standards and applies them to conduct which previously occurred, Caldwell's constitutional statutory rights will be violated by the application of an ex post facto law.[2]

We reject outright Caldwell's argument that A.R.S. § 32-1295.C implicitly requires the adoption of standards to delineate types of conduct which are subject to sanction. The standards that a denturist must meet to be and remain certificated by the Board are adequately set forth by statute. The grounds for revocation and suspension of a certificate are also enumerated in A.R.S. § 32-1297.07.A (Supp. 1982). "Unprofessional conduct" is one basis for disciplinary action. A.R.S. § 32-1297.07.A(1) (Supp. 1982). "Gross incompetence" and "gross negligence" are other grounds. A.R.S. § 32-1297.07.A(4) (Supp. 1982). However, Caldwell asserts that these terms are not specifically defined and that denturists are not, therefore, adequately notified of the conduct expected of them. The term "unprofessional conduct" was defined by the legislature at the time of Caldwell's conduct[3] in A.R.S. § 32-1201.10 (Supp. 1980). That definition lists several specific acts and standards to be used in judging when conduct is "unprofessional." Further, the exact subsection Caldwell claims is unconstitutionally vague, A.R.S. § 32-1201.10(n) (Supp. 1980), was implicitly approved by this court in Athans v. Arizona State Board of Dental Examiners, 126 Ariz. 6, 612 P.2d 57 (App. 1980). In Athans, Division 2 of this court was dealing with unprofessional conduct defined in A.R.S.

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670 P.2d 1220, 137 Ariz. 395, Counsel Stack Legal Research, https://law.counselstack.com/opinion/caldwell-v-arizona-state-bd-of-dental-exam-arizctapp-1983.