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CHAFIAN v. ALABAMA BOARD OF CHIROPRACTIC EXAMINERS

September 16, 1994

ERVIN CHAFIAN, D.C.
v.
ALABAMA BOARD OF CHIROPRACTIC EXAMINERS



Appeal from Montgomery Circuit Court. (CV-92-1277). Joseph D. Phelps, Trial Judge.

Released for Publication December 6, 1994.

Wright

The opinion of the court was delivered by: Wright

WRIGHT, Retired Appellate Judge

The Alabama Board of Chiropractic Examiners received a complaint alleging that Dr. Ervin Chafian had sexually harassed one of his patients and that he had charged that patient's insurance company for services that were never performed. After investigating the allegations of the complaint, the Board filed a formal administrative complaint against Chafian, charging him with three counts of unprofessional conduct in the nature of sexual harassment and thirteen counts of unprofessional conduct in the nature of overutilization (exploitation of a patient for financial gain).

Following an administrative hearing, the Board found Chafian guilty of two counts of sexual harassment and thirteen counts of overutilization. He was fined, and his license was suspended for 60 days.

Chafian filed a petition for judicial review in the Circuit Court of Montgomery County. He subsequently filed a motion for summary judgment, alleging various substantive and procedural issues. After hearing oral arguments and reviewing the material presented for review, the trial court determined that the Board's findings of fact were supported by the record and that the Board's findings of fact and Conclusions of law were neither clearly erroneous, arbitrary, and/or capricious. Chafian filed a motion to alter or amend the judgment, requesting that the trial court rule on his motion for summary judgment. The trial court denied Chafian's request, finding that it was without jurisdiction to entertain a motion for summary judgment in an administrative setting. It determined, however, that Chafian was afforded substantive and procedural due process by the Board. Chafian appeals.

Our review of this case is limited to determining whether the Board acted unlawfully or arbitrarily, or in such a manner as to deny Chafian due process. Delavan v. Board of Dental Examiners, 620 So. 2d 13 (Ala. Civ. App. 1992).

Chafian asserts that the trial court erred in refusing to consider his motion for summary judgment.

The trial court determined that it did not have the authority to rule on the motion for summary judgment. We do not decide whether summary judgment is a proper pleading for this type of review. Rather, we find that the trial court's findings--that the Board's findings and Conclusions were not erroneous, arbitrary, or capricious and that Chafian was not denied substantive or procedural due process--addressed all the issues presented in Chafian's petition for review and in his motion for summary judgment. We find no error.

Chafian asserts that the trial court erred in refusing to grant a trial de novo.

Section 34-24-175(d), Code 1975, provides that judicial review of the Board's final decision is to be conducted in accordance with §§ 41-22-20 and -21, Code 1975, of the Alabama Administrative Procedure Act. Section 41-22-20 provides, in pertinent part:

"(i) In proceedings for judicial review of agency action in a contested case, except where appeal or judicial review is by a trial de novo, a reviewing court shall not itself hear or accept any further evidence with respect to those issues of fact whose determination was entrusted by law to the agency in that contested case proceeding . . . .

"(j) The review shall be conducted by the court without a jury and, except as herein provided, shall in the review of contested cases be confined to the record and the additions thereto as may ...


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