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W.A.A. v. Bd. of Dental Examiners of Alabama

Alabama Court of Civil Appeals

April 17, 2015

W.A.A.
v.
Board of Dental Examiners of Alabama

          Appeal from Tallapoosa Circuit Court. (CV-14-900001).

         For Appellant: Davis B. Whittelsey of Whittelsey, Whittelsey, Poole & Corley, P.C., Opelika.

         For Appellee: Susan F. Wilhelm, gen. counsel, and deputy atty. gen., and Donna L. Dixon, deputy atty. gen., Board of Dental Examiners of Alabama, Hoover.

         PITTMAN, Judge. Thompson, P.J., and Thomas, Moore, and Donaldson, JJ., concur.

          OPINION

          PITTMAN, Judge.

         This appeal arises from disciplinary proceedings brought by the Board of Dental

Page 26

Examiners of Alabama (" the Board" ) against one of its licensees, W.A.A. (" the practitioner" ), in October 2012, asserting that the practitioner had violated Ala. Code 1975, § 34-9-18(a)(4) (a portion of the Alabama Dental Practice Act (" ADPA" ), Ala. Code 1975, § 34-9-1 et seq.), " by being a habitual user of intoxicants or drugs rendering [him] unfit for the practice of dentistry based upon [his] habit of using controlled substances" (labeled as Count I) and had violated Ala. Code 1975, § 34-9-18(a)(13) (another portion of the ADPA), by prescribing, administering or dispensing drugs or medications for " person[s] not under his ... treatment in the regular practice of his ... profession" (labeled as Count II). After a two-day hearing, which itself had followed significant ancillary litigation in both state circuit courts and a federal district court regarding discovery matters that arose over the course of the administrative proceedings before the Board,[1] the Board rendered an order on October 31, 2013, determining that the practitioner was, in fact, guilty on both counts; that he should pay a $5,000 fine as to each count and a $25,000 assessment for the cost of the administrative proceedings; and that his license should be suspended pending payment of the moneys due and his entrance into a " monitoring agreement" with a Board committee on wellness.

          The ADPA provides that, upon the rendition of " any order of the [B]oard imposing any of the penalties found in Section 34-9-18," Ala. Code 1975, " any party affected thereby may bring an action in the circuit courts to set aside the order on the ground that same is unlawful or arbitrary." Ala. Code 1975, § 34-9-25. Because the ADPA is silent on the length of time afforded to seek judicial review of disciplinary orders rendered by the Board, this court, in Kyle v. Board of Dental Examiners of Alabama, 57 Ala.App. 681, 331 So.2d 696 (Civ. App. 1976), cert. denied, 331 So.2d 699 (Ala. 1976), held that, to timely initiate an action under § 34-9-25, " an aggrieved party must ... petition [the circuit court] within a reasonable time." 57 Ala.App. at 684, 331 So.2d at 698. However, upon the enactment of the Alabama Administrative Procedure Act (" the AAPA" ), Ala. Code 1975, § 41-22-1 et seq., the reasonable-time requirement of seeking review under the ADPA was abrogated by the AAPA's provision of " a period of 30 days within which to appeal or to institute judicial review" after " the receipt of the notice of or other service of the final decision of the agency." Ala. Code 1975, § 41-22-20(d). Although the record does not reflect any filings with the Board after the rendition of the disciplinary order, the practitioner has asserted, and the Board does not dispute, that he filed a notice of appeal with the Board on Monday, December 2, 2013, the first business day following the 30th day after his receipt of a copy of the disciplinary order (which had fallen on a weekend). See Ala. Code 1975, § 1-1-4 (pertaining to last day to perform act required by statute when office is closed pursuant to law).

         Within 30 days after filing his notice of appeal (see Ala. Code 1975, § 41-22-20(d)), on January 2, 2014, the practitioner brought a civil action in the Tallapoosa Circuit Court seeking judicial review, under § 34-9-25, of the Board's disciplinary order.[2] That petition challenged as unreasonable,

Page 27

arbitrary, capricious, and outside permissible discretion " [t]he discussions and actions of the ... Board," its wellness committee and the committee's director, its investigators and prosecutors, and other persons, firms, associates, and entities involved in the case. On January 31, 2014, the circuit court stayed the effect of the Board's order, directed the Board to produce a certified copy of its administrative record in the matter, and set oral arguments for March 10, 2014. After arguments were presented, the practitioner filed a memorandum brief in which, among other things, he contended that the Board's decision as to Count I, the suspension of his dental license, the imposition of the $5,000 fine as to Count I, and the assessment of $25,000 of administrative costs were due to be reversed; that the circuit court's " review [was] not ... limited to a scrutinization of the record alone" ; that he was " entitled to present evidence which [was] not included in the record to prove the Board's [d]ecision was unlawful or arbitrary, or that it violates his due process rights" ; and that he " reserve[d] the right ... to submit extrinsic evidence to the [circuit court] upon his acquisition of the same." Although the Board filed a motion to strike that memorandum brief, the Board did not controvert the practitioner's argument regarding his right to submit extrinsic evidence.

         In April 2014, the practitioner served a notice of deposition upon the Board seeking to take the deposition of a representative of the Board pursuant to Rules 30(b)(5) and 30(b)(6), Ala. R. Civ. P.; that notice also sought the production at that deposition of, among other things, " [t]he identity of any persons present and/or the nature, content and procedure of the Board's deliberations on the charges brought ... against [the practitioner]," " [t]he identity and content of any documents, recordings, emails, fax-transmittals, letters, correspondences, and/or other extraneous evidence which is [not] contained within the [administrative] record" that " mention, regard and/or in any manner concern [the practitioner] and/or the facts, matters and/or charges brought against [him]," " [a]ny reasons and/or grounds ... [not] described and/or contained within the Board's" disciplinary order that " provide a basis for and/or support any portion(s) of the Order," and " [a]ny executed and/or nonexecuted drafts of the Board's" disciplinary order. The Board, in response, filed a motion to quash or for a protective order, asserting that the discovery sought was " irrelevant and/or immaterial to the matter before [the circuit court] and/or [was] protected by the executive privilege, deliberative process privilege, attorney-client privilege, and work-product privilege" ; the Board also asserted that judicial review was confined to the record and that the practitioner had untimely sought to inject issues of bias and misconduct. Similarly, the practitioner sought discovery -- by serving notice of his intent to serve subpoenas directed to the Board's presiding officer, the Board's wellness committee and its director, and the drug-treatment clinic that had provided services to the practitioner -- of " [a]ny and all documents, correspondences, e-mails, fax transmittals, records or writings of any type and in any form of media ... which evidence, mention and/or refer to any form of communication concerning, ...


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