WILLIAM A. PHILLIPS, D.M.D., J.D. v. GARY MUNSIE AND KENTUCKY BOARD OF DENTISTRY and WILLIAM A. PHILLIPS, D.M.D. v. HONORABLE F. KENNETH CONLIFFE, JUDGE
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RENDERED: July 23, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-001344-MR
WILLIAM A. PHILLIPS, D.M.D., J.D.
v.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN MERSHON, JUDGE
ACTION NO. 97-CI-02709
GARY MUNSIE AND
KENTUCKY BOARD OF DENTISTRY
AND
NO.
APPELLEES
1998-CA-001407-MR
WILLIAM A. PHILLIPS, D.M.D.
v.
APPELLANT
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE F. KENNETH CONLIFFE, JUDGE
ACTION NO. 97-CI-05965
KENTUCKY BOARD OF DENTISTRY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
HUDDLESTON, JOHNSON, AND KNOPF, JUDGES.
KNOPF, JUDGE.
Appellant, Dr. William A. Phillips, appeals from
the following two (2) orders of the Jefferson Circuit Court: (1)
the order entered on May 28, 1997, which denied appellant
injunctive relief and dismissed his declaratory judgment action
for failure to exhaust administrative remedies; and (2) the order
entered on May 5, 1998, which found that the Kentucky Board of
Dentistry’s (the Board) final order was supported by substantial
evidence and that 201 KAR 8:430, section 2(8) was constitutional.
On March 6, 1997, the Board issued an accusation
against appellant alleging that he had violated KRS 313.130, KRS
313.140 and 201 KAR 8:430, section 2(8) by recommending dental
services without justification.
Prior to an administrative
hearing, appellant filed a complaint in Jefferson Circuit Court
seeking to enjoin the Board from proceeding with the disciplinary
hearing and requesting the court to declare 201 KAR 8:430,
section 2(8) unconstitutional.
On May 28, 1997, the circuit
court denied injunctive relief and dismissed the action for
failure to exhaust administrative remedies.
Appellant appealed
to this court and filed a motion for emergency and intermediate
relief.
Appellant’s motion for emergency relief was denied on
July 10, 1997, and intermediate relief was denied on July 29,
1997.
The appeal then proceeded in case NO. 1997-CA-001344.
On July 11, 1997, an administrative hearing was
conducted by a panel of the Board, which found appellant had
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violated KRS 313.130(3) and 201 KAR 8:430 § 2(8) and recommended
a three (3) month suspension.
Enforcement of the suspension was
stayed, and appellant’s license was placed on probation.
The
hearing panel’s findings of fact, conclusions of law, and
recommended order was adopted by the Board as its final order.
Appellant appealed the final order to the Jefferson Circuit
Court.
On May 5, 1997, the circuit court found 201 KAR 8:430 §
2(8) was constitutional and there was substantial evidence to
support the Board’s final order.
court in case NO. 1998-CA-001407.
Appellant appealed to this
Appeals NO.1998-CA-001407 and
NO.1997-CA-001344 have been consolidated for our review.
By virtue of KRS 313.150(1), the Board has the power to
conduct administrative hearings and to sanction dentists in
various ways, from reprimand to suspension or revocation of a
dentist’s license.
The administrative hearings are conducted in
accordance with KRS Chapter 13B.
KRS 313.150(2).
The standard
of review for a final order of the Board is found in KRS
13B.150(2):
The Court shall not substitute its judgment for that of
the agency as to the weight of the evidence on
questions of fact. The court may affirm the final order
or it may reverse the final order, in whole or in part,
and remand the case for further proceedings if it finds
the agency’s final order is:
(a) In violation of constitutional or
statutory provisions;
(b) In excess of the statutory authority
of the agency;
(c) Without support of substantial
evidence on the whole record;
(d) Arbitrary, capricious, or
characterized by abuse of discretion;
(e) Based on an ex parte communication
which substantially prejudiced the rights of
any party and likely affected the outcome of
the hearing;
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(f) Prejudiced by a failure of the
person conducting a proceeding to be
disqualified pursuant to KRS 13B.040(2);
or
(g) Deficient as otherwise provided by
law.
On appeal, appellant argues (1) that the
Board exceeded its authority when it promulgated 201
KAR 8:430, section 2(8); (2) that the regulation is
unconstitutionally vague and ambiguous; and (3) that
the Board’s final order is not supported by substantial
evidence.
Appellant contends that the Board was
prohibited from enacting 201 KAR 8:430 because the
legislature expressly reserved the authority to define
"unprofessional conduct" in KRS 313.140.
We note that the list of acts declared to be
"unprofessional conduct" in KRS 313.140 are prefaced by
the statement: "[u]nprofessional conduct includes, but
is not limited to, the following acts . . . ."
This
clearly demonstrates the legislature’s intent to
provide an illustrative rather than an exclusive list
of acts.
Appellant’s contention that the legislature
reserved exclusive authority to define "unprofessional
conduct" is without merit and ignores the plain meaning
of the language within KRS 313.140.
Pursuant to KRS 313.220, the Board is
authorized to promulgate administrative regulations
pertaining to the practice of dentistry.
An
administrative body shall not modify or vitiate a
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statute through administrative regulations, and any
regulation which does so is void.
KRS 13A.120(2).
An
administrative body shall not expand upon or limit a
statute through internal policy, memorandum, or other
form of action.
KRS 13A.130.
While 201 KAR 8:430
does provide more specific definitions of
"unprofessional conduct" than those found in KRS
313.140, it does not modify or vitiate KRS 313.130(3)
or KRS 313.140.
Appellant next argues that 201 KAR 8:430 §
2(8) is unconstitutionally vague and ambiguous.
"In
the construction of administrative regulations, we [the
courts] are governed by the same rules which would
apply in construing statutes in the same field."
Louisville Edible Oil Products, Inc. v. Revenue
Cabinet, Ky. App., 957 S.W.2d 272, 274 (quoting Revenue
Cabinet v. Joy Technologies, Inc., Ky. App., 838 S.W.2d
406, 409 (1992)).
Statutes are to be construed so as
to preserve their constitutionality wherever possible.
Revenue Cabinet v. Joy Technologies, Inc., Ky. App.,
838 S.W.2d 406 (1992).
Two (2) general principles
underlying our standard of review for vagueness are:
"[f]irst, a statute is impermissibly vague if it does
not place someone to whom it applies on actual notice
as to what conduct is prohibited;
and second, a
statute is impermissibly vague if it is written in a
manner that encourages arbitrary and discriminatory
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enforcement."
State Board for Elementary and Secondary
Education v. Howard, Ky., 834 S.W.2d 657, 662 (1992)
(citing Musselman v. Commonwealth, Ky., 705 S.W.2d 476
(1986).
201 KAR 8:430, section 2(8) states that a
licensee shall be guilty of "unprofessional conduct" if
the licensee "[p]rovides or recommends dental services
without justification."
Appellant contends that the
phrase "without justification" is susceptible to
endless interpretation, preventing any actual notice of
what conduct it proscribes and encouraging arbitrary
enforcement.
We find that 201 KAR 8:430, section 2(8)
is not void for vagueness or ambiguity.
The ordinary meaning of the word "justify" is
"to show to be just, right, or in accord with reason .
. . ."
Webster’s New World Dictionary at 766 ( 2nd
College Edition, 1976).
In the dental profession, an
individual dentist’s professional judgment can be
measured against the standards developed in the
education and training of dentists.
These standards
can be gleaned from educators and experienced
practitioners within the profession.
In this context,
each dentist should be able to justify his/her
treatment recommendations with reasons that are
acceptable to the profession.
Appellant’s final assignment of error alleges
that the Board’s order is not supported by substantial
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evidence of record.
After considering the testimony of
Drs. Marquetta Poynter, Jeffrey Klein, Frederick
Parkins, and appellant, the hearing panel concluded
that the appellant lacked justification for
recommending fillings on three (3) of the patient’s
teeth, identified as A, K, and L.
Acting as trier of
fact, an administrative agency is afforded great
latitude to evaluate the evidence including the
credibility of witnesses.
Kentucky State Racing
Commission v. Fuller, Ky., 481 S.W.2d 298, 308 (1972).
It is clear from the Board’s findings that it gave
great weight to the testimony of both the appellant and
the appellant’s witness, Dr. Parkins.
After reviewing
the whole record, we find that the Board’s findings
were supported by substantial evidence and will not be
disturbed on appeal.
For the reasons stated above, the orders of
the Jefferson Circuit Court are hereby affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Frank R. Recker
Frank R. Recker &
Associates Co.
Cincinnati, Ohio
A.B. Chandler III
Attorney General
Mark Brengelman
Assistant Attorney
General
Frankfort, Kentucky
Thomas A. Klausing
Louisville, Kentucky
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