|DR. JOEL JOSEPH||)||SPECIAL PROCEEDINGS CASE NO|
|GUAM BOARD OF ALLIED HEALTH||)||FINDINGS OF FACT AND|
|EXAMINERS||)||CONCLUSIONS OF LAW|
This matter was tried before the HONORABLE VERNON P. PEREZ beginning on May 10, and continuing on May 21-24 and 28, 2013. The Petitioner was represented by Attorney Mitchell F. Thompson. The Respondent was represented by Assistant Attorney General Benjamin Abrams. After having heard the Parties' arguments, considering the Parties' pleading and the record, the Court now issues the following Findings of Fact and Conclusions of Law.
In the event that there are questions concerning your renewal application, you are then provided adequate time to submit any deficiency. Id.
The Board's actions were "adjudicative" in that the December 28 was conducted to determine, or essentially "adjudicate," whether certain licenses, including Dr Joseph's were to be renewed. See. U.S. v. Florida East Coast Ry. Co., 410 U.S. 224, 245 (1973) (finding that that the number of persons affected is basic distinction between rulemaking and adjudication). Therefore, Dr Joseph was entitled to an opportunity to present his objections. Indeed, the Board recognized this right to some extent in its September 28 letter where it stated: "[i]n the event that there are questions concerning your renewal application, you are then provided adequate time to submit any deficiency." Although the Court finds that Dr Joseph had notice that his license would be reviewed at the December 28 meeting, Dr Joseph was not on notice as to the issue regarding his renewal application. Without such notice, along with the Board's election not to renew his license, the Court concludes that Dr Joseph was not afforded his constitutional right to procedural due process.
Furthermore, Dr Joseph's having a professional license entitled him to such constitutional protection. See. Gallo v. U.S. District Court of Arizona, 349 F.3d 1169, 1181 (9th Cir. 2003) (an individual has a legitimate property interest in his or her professional license); See Also. Sabow v. United States, 93 F.3d 1445, 1456 (9th Cir. 1996) (holding that physician has constitutionally protected property interest in his or her medical license). A professional license "once conferred, constitutes an entitlement subject to constitutional protection." Gallo at 1179. In In re Corrinet, an Attorney's license to practice in a federal bar was unilaterally revoked after it was found that even though he did not meet a criterion of admission to the bar, he was already a member of that bar for nearly a decade. In re Corrinet, 645 F.3d 1141, 1144 (9th Cir. 2011). The Court found, among other things, that the Judge that revoked the attorney's license did not comply with certain local rules regarding discipline of attorneys. Id. at 1146. The court ultimately held that the attorney "must in advance be informed of the purpose of the proceeding and of the grounds therefor, and be afforded a fair opportunity ... to produce evidence in refutation or rebuttal." Id.
In the present case, the Board did not provide Dr Joseph with a fair
opportunity to produce evidence in refutation or rebuttal.
On that basis, the Court concludes that Dr Joseph was not afforded
due process when the Board elected not to renew his veterinary license,
without first providing him with adequate notice and a meaningful
opportunity to respond.
It may be issued by any court, to any inferior tribunal, corporation, board, 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 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 inferior tribunal, corporation, board, or person.7 GCA § 31202. Furthermore, "[t]he writ must be issued in all cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law." 7 GCA § 31203. In this case, the Board is the type of entity contemplated by § 31202 and, as discussed above, the Court can compel the Board to provide Dr Joseph with a hearing, which would comport with the requirements of procedural due process. The Court can deny the Writ if it determines that the Petitioner has a plain, speedy, and adequate remedy in the ordinary course of law.
In this case, the Board refused to renew Dr Joseph's license,
without first providing him with notice and adequate time to respond.
From this, the Court concluded that Dr Joseph was not afforded
procedural due process.
However, based on the Board's failure in that regard,
the Court will not now automatically compel the Board to renew
Dr Joseph's license.
Had the Board provided Dr Joseph with notice and an opportunity
it would have been able to hear rebuttal evidence and make an
informed decision on the issue of renewal.
Such evidence was received by this Court.
The Court will briefly analyze some of the evidence as they pertain
to certain claims raised by the Board.
Title 9 GCA section 67.305(a) provides:
Before denying, suspending, revoking, or refusing to renew a registration, DPHSS shall serve upon the applicant or registrant an order to show cause why registration should not be denied, suspended or revoked, or the renewal refused.9 GCA section 67.305(a). Further, section 67.305 states:
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.9 GCA section 67.305(a). Finally, 67.305 concludes:
A proceedings to refuse to renew a registration does not affect the existing registration, which remains in effect until completion of the proceedings.9 GCA section 67.305(a).
By not timely serving an OSC upon Dr Joseph,
DPHSS could not then simply refuse to renew the CSR.
On that basis, the Board improperly relied on the wrongful failure of
DPHSS to renew Dr Joseph's CSR as a ground for non-renewal of
Dr Joseph's veterinary license.
HONORABLE VERNON P. PEREZ
JUDGE, SUPERIOR COURT OF GUAM
"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 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 of the community." 10 GCA § 12801(b).