Joseph v. Guam Board of Allied Health Examiners

Opinion

IN THE SUPERIOR COURT OF GUAM 2 DR. JOEL JOSEPH, SPECIAL PR;O~EEPU1G~rff}S[JqNO.

3 SPOOOl-13 / Petitioner, 4 vs.

5 GUAM BOARD OF ALLIED HEALTH FINDINGS OF FACT AND 6 EXAMINERS, CONCLUSIONS OF LAW 7 Respondent.

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9 INTRODUCTION 10 This matter was tried before the HONORABLE VERNON P. PEREZ beginning on Ma 11 10, and continuing on May 21-24 and 28, 2013. The Petitioner was represented by Attorne 12 13 Mitchell F. Thompson. The Respondent was represented by Assistant Attorney Genera

14 Benjamin Abrams. After having heard the Parties' arguments, considering the Parties' pleading 15 and the record, the Court now issues the following Findings of Fact and Conclusions of Law. 16

17 FINDINGS OF FACT

18 1. Any finding of fact is also a conclusion of law. Any conclusion of law is also

19 finding of fact.

20 2. Petitioner ("Dr. Joseph") was previously licensed to practice veterinary medicin

21 in Guam by Respondent Guam Board of Allied Health Examiners ("Board"). That license

22 however, expired on December 31,2012. Testimony ofDr. Joseph.

23 3. The Board issued a letter to its licensees, including Dr. Joseph, which was date

24 September 26, 2012. The letter stated that the Board was scheduled to meet on the first Friday o

25 December 2012 to review all license renewals. Exhibit 40.

26 4. Further, the letter stated:

27 In the event that there are questions concerning your renewal application, you are then provided adequate time to submit any 28 deficiency. !d.

Dr. Joel Joseph v. Guam Board ofAllied Health Examiners Findings of Fact and Conclusions of Law Special Proceedings Case No. SPOOOI-13 -Page I of8-

5. On November 20, 2012, Dr. Joseph submitted his license renewal application t 2 the Board. Exhibit 38. Dr. Joseph also timely paid the renewal fee. Exhibit 39. 3 6. The Board did not meet on the first Friday of December. Instead the Board me 4 on December 28, 20 12. 5 7. Dr. Joseph did not attend the December 28 meeting. Dr. Joseph's son, Benjami 6 Schiff, was present at the meeting and made a video recording of the portion of the proceeding 7 that pertained to Dr. Joseph. Exhibit 55. Other licensees, whose licenses renewal application 8 were to be considered were not present at the meeting. Testimony of Mamie Balajadia. 9 8. At the December 28 meeting, the Board voted not to renew Dr. Joseph's license t 10 practice veterinary medicine. The Board based its decision on issues raised by Board members II Dr. Velma harper and Sybil Crisostomo, and by Board Counsel David Highsmith. Exhibit 55. I2 9. Prior to the December 28 meeting, the Board had not communicated to Dr. Josep 13 that it had any issues or concerns with his renewal application. Testimony of Dr. Joseph. I4 10. On December 31, 2012, Dr. Joseph, through counsel, sent a letter to Mr. I5 Highsmith objecting to the Board's non-renewal ofhis license. Exhibit 41. 16 11. On January 3, 2013, Dr. Joseph filed with the Court, a Petition for a Writ o I7 Mandate. That same day, the Board, through its legal counsel David Highsmith, sent a letter t I8 Dr. Joseph informing Dr. Joseph that the Board voted not to renew his license, citing seve 19 different reasons. Exhibit 42. 20 12. On January 4, 2013, in an email to Dr. Joseph's counsel, the Board stated that o 21 February 1, 2013 it would permit Dr. Joseph to "address" its decision for non-renewal of hi 22 license. The letter, however, indicated that the scheduled meeting will not be an evidentiar 23 hearing. 24 13. Dr. Joseph chose not to attend the February 1, 2013 meeting, objecting to the fac 25 that there would no evidentiary hearing. 26 27 CONCLUSIONS OF LAW 28

Dr. Joel Joseph v. Guam Board ofAllied Health Examiners Findings of Fact and Conclusions of Law Special Proceedings Case No. SPOOOI-13 -Page 2 of8-

1. Dr. Joseph was denied his right to procedural due process when the Board electe 2 not to renew his veterinary license, without first providing him with adequate notice and 3 meaningful opportunity to respond. "Whether an affected party is entitled to individual notic 4 and a pre-deprivation hearing depends upon the character of the action." Gallo v. US. Distric 5 Court of Arizona, 349 F.3d 1169, 1181 (9th Cir. 2003). "When the government action i 6 adjudicative [as opposed to legislative] ... due process requires 'notice reasonably calculated, 7 under all circumstances, to apprise interested parties of the pendency of the action and affor 8 them an opportunity to present their objections." !d. (citing Mullane v. Cent. Hanover Bank 9 Trust Co., 339 U.S. 306, 314 (1950)). 10 The Board's actions were "adjudicative" in that the December 28 was conducted t 11 determine, or essentially "adjudicate," whether certain licenses, including Dr. Joseph's were t 12 be renewed. See. US. v. Florida East Coast Ry. Co., 410 U.S. 224,245 (1973) (finding that th 13 number of persons affected is basic distinction between rulemaking and adjudication) 14 Therefore, Dr. Joseph was entitled to an opportunity to present his objections. Indeed, the Boar 15 recognized this right to some extent in its September 28 letter where it stated: "[i]n the event tha 16 there are questions concerning your renewal application, you are then provided adequate time t 17 submit any deficiency." Although the Court finds that Dr. Joseph had notice that his licens 18 would be reviewed at the December 28 meeting, Dr. Joseph was not on notice as to the issue 19 regarding his renewal application. Without such notice, along with the Board's election not t 20 renew his license, the Court concludes that Dr. Joseph was not afforded his constitutional right t 21 procedural due process. 22 Furthermore, Dr. Joseph's having a professional license entitled him to sue 23 constitutional protection. See. Gallo v. US. District Court ofArizona, 349 F.3d 1169, 1181 (9t 24 Cir. 2003) (an individual has a legitimate property interest in his or her professional license); Se 25 Also. Sabow v. United States, 93 F.3d 1445, 1456 (9th Cir. 1996) (holding that physician has 26 constitutionally protected property interest in his or her medical license). A professional license 27 "once conferred, constitutes an entitlement subject to constitutional protection." Gallo at 1179 28 In In re Corrinet, an Attorney's license to practice in a federal bar was unilaterally revoked afte

Dr. Joel Joseph v. Guam Board ofAllied Health Examiners Findings of Fact and Conclusions of Law Special Proceedings Case No. SPOOOl-13 -Page 3 of8-

it was found that even though he did not meet a criterion of admission to the bar, he was alread 2 a member of that bar for nearly a decade. In re Corrinet, 645 F .3d 1141, 1144 (9th Cir. 2011) 3 The Court found, among other things, that the Judge that revoked the attorney's license did no 4 comply with certain local rules regarding discipline of attorneys. /d. at 1146. The co 5 ultimately held that the attorney "must in advance be informed of the purpose of the proceedin 6 and of the grounds therefor, and be afforded a fair opportunity . . . to produce evidence i 7 refutation or rebuttal." /d. 8 In the present case, the Board did not provide Dr. Joseph with a fair opportunity t 9 produce evidence in refutation or rebuttal. On that basis, the Court concludes that Dr. Josep 10 was not afforded due process when the Board elected not to renew his veterinary license, withou 11 first providing him with adequate notice and a meaningful opportunity to respond. 12 2. A Writ of Mandate will only lie to compel the Board to provide Dr. Joseph with

13 hearing in order to respond to the claims set forth in Board counsel's January 3, 2013 letter 14 With regard to a Writ of Mandate, 7 GCA § 31202 provides: 15 It may be issued by any court, to any inferior tribunal, corporation, board, 16 or person to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station; or to compel 17 the admission of a party to the use and enjoyment of a right or office to which he is entitled, and from which he is unlawfully precluded by such 18 inferior tribunal, corporation, board, or person.

19 7 GCA § 31202. Furthermore, "(t]he writ must be issued in all cases where there is not a plain 20 speedy, and adequate remedy in the ordinary course of law." 7 GCA § 31203. In this case, th 21

22 Board is the type of entity contemplated by § 31202 and, as discussed above, the Court ca

23 compel the Board to provide Dr. Joseph with a hearing, which would comport with th 24 requirements of procedural due process. The Court can deny the Writ if it determines that th 25 Petitioner has a plain, speedy, and adequate remedy in the ordinary course of law.

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Dr. Joel Joseph v. Guam Board ofAllied Health Examiners Findings of Fact and Conclusions of Law Special Proceedings Case No. SPOOOl-13 -Page 4 of8-

3. After having heard all of the evidence at trial, the Court concludes that a Writ o

2 Mandate will not lie to compel the Board to automatically renew Dr. Joseph's license. Althoug

3 the Court realizes that Dr. Joseph has a property interest in his professional license, the Court i 4 also aware of the underlying policies and provisions that allow the Board to exercise it 5 discretion in matters such as this. 1 The Court recognizes the competing interests of the parties i 6 this regard. On the one hand, the provisions pertaining to the renewal of licenses provide tha 7

8 "licenses may be renewed upon payment of a renewal fee and completion of continuin 9 education requirements as stated in these rules and regulations." 10 GCA § 12808(a). Also 10 relevant case law holds that mandamus is appropriate only when there is a clear, present, an 11 ministerial duty to act. See. Holmes v. Territory Land Use Commission, 1998 Guam 8, , II· 12

13 Limtiaco v. Guam Fire Dept., 2007 Guam 10,, 8. On the other hand, however, other court

14 have opined that the discretion of an administrative agency is not unfettered and, further, tha 15 mandamus will lie to correct an abuse of discretion or the actions of an administrative agenc 16 which exceed the agency's legal powers. See. Skelly v. State Personnel Board, 15 Cal.3d 194 17 218 (1975); Saleeby v. State Bar, 39 Cal.3d 547,561-62 (1985).

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19 In this case, the Board refused to renew Dr. Joseph's license, without first providing hi

20 with notice and adequate time to respond. From this, the Court concluded that Dr. Joseph w 21 not afforded procedural due process. However, based on the Board's failure in that regard, th 22 Court will not now automatically compel the Board to renew Dr. Joseph's license. Had th 23 Board provided Dr. Joseph with notice and an opportunity to respond, it would have been able t 24 25 hear rebuttal evidence and make an informed decision on the issue of renewal. Such evidenc

26 1 27 "The primary purpose of[The Allied Health Practice Act] is to protect the public against unprofessional, improper, incompetent, unlawful, fraudulent or deceptive practices who practice the healing art. This act, therefore, shall 28 provide for the proper guidelines, such as education requirements, continuing education requirements, licensing and renewal procedures, professional conduct and any other matter, which the Board deems appropriate in serving the interests ofthe community." 10 GCA § 1280l(b).

Dr. Joel Joseph v. Guam Board ofAllied Health Examiners Findings of Fact and Conclusions of Law

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was received by this Court. The Court will briefly analyze some of the evidence as they pertai

2 to certain claims raised by the Board.

3 5. The Department of Public Health and Social Services previously issued Dr.

4 Joseph a Controlled Substances Registration ("CSR"), which expired on April 30, 2012. Exhibi 5 12. Dr. Joseph timely submitted a renewal application for the CSR on April 25, 2012. Exhibi 6 13. DPHSS did not renew the CSR license but instead, on May 4, 2012, issued an order to sho 7 cause to Dr. Joseph as to why his CSR license should not be "revoked or suspended." Exhibi 8 15. Subsequently, on May 9, 2012, DPHSS rescinded its order to show cause, stating that tha 9 "the Order to Show Cause dated May 4, 2012 is hereby rescinded" and "your renewal applicatio 10 for CSR will be processed accordingly." Exhibit 15. DPHSS contacted former busines 11 manager of Wise Owl Clinic, Kenneth Massey and informed him that the CSR was approved an 12 ready to be picked up. Testimony of Kenneth Massey. Mr. Massey also testified that he tol 13 DPHSS to mail the registration, but the registration was never received. Finally after having no 14 received the CSR, Mr. Massey attempted to retrieve the CSR from DPHSS but was informed tha 15 the Attorney General's office advised DPHSS not to release it. DPHSS did not issue any othe 16 OSC to Dr. Joseph. Testimony of James Gillan.

17 Title 9 GCA section 67.305(a) provides:

18 Before denying, suspending, revoking, or refusing to renew a 19 registration, DPHSS shall serve upon the applicant or registrant an 20 order to show cause why registration should not be denied, suspended or revoked, or the renewal refused.

21 9 GCA section 67.305(a). Further, section 67.305 states:

22 23 In case of a refusal to renew a registration, the order must be served not later than thirty (30) days before expiration of the registration.

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25 9 GCA section 67.305(a). Finally, 67.305 concludes:

26 A proceedings to refuse to renew a registration does not affect the existing registration, which remains in effect until completion of the 27 proceedings. 28 9 GCA section 67.305(a).

Dr. Joel Joseph v. Guam Board ofAllied Health Examiners Findings of Fact and Conclusions of Law

By not timely serving an OSC upon Dr. Joseph, DPHSS could not then simply refuse t 2 renew the CSR. On that basis, the Board improperly relied on the wrongful failure of DPHSS t 3 renew Dr. Joseph's CSR as a ground for non-renewal of Dr. Joseph's veterinary license.

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5 6. In refusing to renew Dr. Joseph's license the Board also improperly relied upo

6 the notion that Dr. Joseph operated his clinic in "noncompliance with an order from Departmen 7 of Public Works ("DPW") concerning, among other things, "the safe use of an x-ray machin 8 thereon." Exhibit 42. The regulations of x-ray machines fall under the purview of th 9

lO Environmental Health Division of DPHSS, and not DPW. Testimony of M. Thomas Nadeau

11 Furthermore, as of February 2013, DPHSS had not promulgated any of its own rules an 12 regulations for x-ray machines. Testimony of James Gillan. Therefore, in refusing to renew Dr 13 Joseph's license, the Board improperly relied upon the assertion that Dr. Joseph operated hi 14 clinic in non-compliance with an order from DPW.

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16 7. Dr. Joseph offered evidence to rebut the claims set forth by the Board.

17 finds that Dr. Joseph's adequate remedy, for purposes of the Writ of Mandate, will be for 18 impartial Board to re-consider his renewal application and render its decision for renewal or non 19 renewal in light of all the evidence adduced at trial. The Court believes that this evenly comport 20 with the Allied Health Act, which still gives the Board discretion to conduct its matter 21

22 consistent with serving the interests of the community.

23 8. In re-considering Dr. Joseph's license, however, the Board shall take necess 24 measures to ensure a fair and impartial review is afforded. Title 10 GCA § 12821 provides tha 25 procedures for enforcement and disciplinary action afford "an opportunity for a fair and impartia 26 27 hearing ... before the Board or its examining committee." 10 GCA § 12821. Although Boar

28 Chairperson Mamie Balajadia testified that she is "indifferent" to Dr. Joseph, the Court believe

Dr. Joel Joseph v. Guam Board ofAllied Health Examiners Findings of Fact and Conclusions of Law Special Proceedings Case No. SPOOOI-13 -Page 7 of8-

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that her disqualification from the review is warranted, given the parties' disputatious history

2 Board member Sybil Crisostomo shall also be disqualified from the review.

3 CONCLUSION 4 Dr. Joseph requests that the Court issue a Writ of Mandate, compelling the Board tore 5 new his license. At this point, however, the Court can only make a dispositive finding that Dr 6 Joseph was not afforded Procedural Due Process. That alone is not enough for the Court to gran 7

8 the ultimate relief sought in Dr. Joseph's petition. Therefore, Dr. Joseph's petition for a Writ o

9 Mandate is DENIED in part, with an order that the Board re-consider the renewal application i 10 light of all the evidence adduced at trial and the Court's conclusions oflaw.

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13 14 So ORDERED this~ day of January, 2014.

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Dr. Joel Joseph v. Guam Board ofAllied Health Examiners Findings of Fact and Conclusions of Law