COMMONWEALTH OF KENTUCKY, KENTUCKY BOARD OF DENTISTRY V. RALEIGH D. ANDREWS, D.D.S.
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NO. 97-CA-2796-MR
COMMONWEALTH OF KENTUCKY,
KENTUCKY BOARD OF DENTISTRY
V.
APPELLANT
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE EDDIE LOVELACE, JUDGE
ACTION NO. 97-CI-0285
RALEIGH D. ANDREWS, D.D.S.
APPELLEE
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ORDER
It is hereby ORDERED that the opinion and order in the
above-styled case be ENTERED and RELEASED this 6th day of January
1998.
ENTERED: January 6, 1998
/s/ Paul D. Gudgel
CHIEF JUDGE, COURT OF APPEALS
RENDERED: JANUARY 6, 1998; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 97-CA-2796-MR
COMMONWEALTH OF KENTUCKY,
KENTUCKY BOARD OF DENTISTRY
APPELLANT
APPEAL FROM WAYNE CIRCUIT COURT
HONORABLE EDDIE LOVELACE, JUDGE
ACTION NO. 97-CI-0285
V.
RALEIGH D. ANDREWS, D.D.S.
APPELLEE
OPINION AND ORDER
REVERSING AND REMANDING
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BEFORE:
ABRAMSON, KNOPF and MILLER, Judges.
ABRAMSON, JUDGE.
On October 15, 1997, the Commonwealth of
Kentucky, Kentucky Board of Dentistry filed a verified complaint
against Raleigh D. Andrews, D.D.S. in the Wayne Circuit Court.
The complaint sought to enjoin Andrews from practicing dentistry.
The Court entered a restraining order which had been agreed to by
the parties.
This order restrained Andrews from practicing
dentistry until October 28, 1997, when the circuit court heard
the Board's motion for a temporary injunction and Andrew's motion
to dissolve and motion to dismiss.
At the conclusion of the
hearing, the Wayne Circuit Court dissolved the restraining order
and dismissed the action.
The Board filed the instant appeal and in connection
with the appeal filed a motion for emergency relief and a motion
for interlocutory relief.
This Court granted emergency relief
which expired on December 11, 1997, when this Court denied the
motion for interlocutory relief and expedited this appeal.
The Wayne Circuit Court dismissed the action below
finding that there was no "statutory or regulatory authority for
granting the relief requested by the plaintiff."
This Court has
reviewed the briefs filed by the parties and concludes that the
trial court was in error.
Accordingly, this Court reverses the
decision below.
KRS Chapter 313 provides for the creation of the
Kentucky Board of Dentistry.
It provides for licensure of
dentists and sets out the procedures for revoking a license as
well as the various grounds for revocation.
Finally, it outlines
all of the powers and duties of the Board.
It is clear from reading KRS Chapter 313 that the Board
is charged with regulating the practice of dentistry.
Under KRS
313.150 et seq., the Board clearly has authority to revoke
licenses after a timely notice and hearing.
There is no
provision in KRS Chapter 313 that authorizes the Board to enter
an emergency order suspending a licensee from practicing
dentistry prior to a full blown hearing.
However, in
Commonwealth of Kentucky v. Nunn, Ky., 452 S.W.2d 381 (1970), and
in Dodge v. Jefferson County Board of Education, Ky., 181 S.W.2d
406 (1944), our Court recognized that where the legislature
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delegated authority to a board, that board may take any action
which may be fairly implied as necessary to carry out the duties
set out in the statute.
In our opinion the Board has the duty to
regulate the practice of dentistry in Kentucky and thus the
implied power to file a complaint seeking injunctive relief
against a dentist who is allegedly endangering the health, safety
and welfare of its citizens.
its own emergency order.
Certainly, the Board cannot issue
However, it is inconceivable that the
legislature expected the Board to stand idly by and permit the
health and safety of the public to be placed in jeopardy until a
full fledged hearing transpires before the Board.
The appellee points out that KRS 313.022 specifically
authorizes the Board to seek an injunction to stop an unlicensed
dentist from practicing.
The appellee argues that the
legislature by implication did not intend for the Board to seek
injunctive relief except as set forth in Chapter KRS 313.
argument is not convincing.
This
KRS 313.022 authorizes the Board to
stop an unregulated person from practicing dentistry.
On the
other hand, in the instant case the Board is dealing with a
regulated person.
The Board has implied authority under KRS
Chapter 313 to file the complaint below.
The judgment of the Wayne Circuit Court is reversed and
the Court is directed to hold a hearing to determine whether the
evidence presented merits the injunctive relief sought by the
Board.
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ALL CONCUR.
ENTERED: January 6, 1998
/s/ Lisabeth Hughes Abramson
JUDGE, COURT OF APPEALS
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
A. B. Chandler III
Attorney General
G. George Bertram
Monticello, Kentucky
Robert S. Jones
Mark Brengelman
Asst. Attorneys General
Frankfort, Kentucky
Frank R. Recker
Cincinnati, Ohio
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