KENNETH R. ESTES (DMD) v. KENTUCKY BOARD OF DENTISTRY
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RENDERED: July 2, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-003329-MR
KENNETH R. ESTES (DMD)
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 97-CI-000785
KENTUCKY BOARD OF DENTISTRY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
DYCHE, GUIDUGLI AND McANULTY, JUDGES.
GUIDUGLI, JUDGE.
Kenneth R. Estes, D.M.D. (Dr. Estes) appeals
from an order of the Jefferson Circuit Court entered on
November 26, 1997, which affirmed an order of the Kentucky Board
of Dentistry (the Board) which temporarily suspended his license
to practice dentistry.
We affirm.
On April 17, 1996, the Board issued a three-count
accusation against Dr. Estes seeking disciplinary action for
gross ignorance or inefficiency in the profession.
Specifically,
the accusation alleged that Dr. Estes rendered improper treatment
to Sabrina Anderson (Anderson) and Deborah Farley (Farley).
formal administrative hearing on the board’s accusations was
A
conducted.
Based on the evidence produced at the hearing, the
Board found that Dr. Estes improperly treated Anderson and
Farley.
The Board ordered that Dr. Estes’ license be suspended
for one year on both counts.
Under the terms of the order, the
first 30 days of each sentence were to be effective immediately
and the remaining eleven months were probated.
were to run concurrently.
The sentences
The Board’s order was subsequently
affirmed by the Jefferson Circuit Court and this appeal followed.
Before addressing the merits of Dr. Estes’ appeal, a
brief review of the standard of review is in order.
Our chief
concern in reviewing administrative actions is the question of
arbitrariness.
Kentucky Board of Nursing v. Ward, Ky. App., 890
S.W.2d 641, 642 (1994).
In determining whether an agency’s
action is arbitrary we look at three considerations:
(1) was the agency’s action within the scope
of its granted powers; (2) did the agency
provide procedural due process; and (3) was
the agency’s decision supported by
substantial evidence.
Commonwealth, Revenue Cabinet v. Liberty National Bank of
Lexington, Ky. App., 858 S.W.2d 199, 201 (1993).
In reviewing
questions of fact, we will not reverse an agency’s findings
unless they are not supported by substantial evidence.
Commonwealth, Cabinet for Human Resources, Interim Office of
Health Planning and Certification v. Jewish Hospital Healthcare
Services, Inc., Ky. App., 932 S.W.2d 388, 390 (1996).
In order
to reverse, the appellant must bring forth evidence of the type
which compels a decision in his favor.
Mill Street Church of
Christ v. Hogan, Ky. App., 785 S.W.2d 263, 266 (1990).
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However,
because statutory construction is a question of fact, an agency’s
interpretation of regulations or statutory law is not binding on
this Court.
Jewish Hospital, 932 S.W.2d at 390.
I. WAS DR. ESTES DENIED DUE PROCESS OF LAW
WHEN RECUSED BOARD MEMBERS PARTICIPATED IN
THE HEARING PROCESS?
At the outset of the hearing, it was announced that Dr.
Bill Smith and Dr. Dan Clagett would be recused from sitting on
the Board because they were members of the Board’s law
enforcement committee and had participated in the initial
investigation of Dr. Estes.
It was also announced that Dr.
Stephen Schuler had recused himself because he practices in the
same city as Dr. Estes.
Over Dr. Estes’ objection, Dr. Smith was allowed to
assist Board counsel during the hearing.
At the close of
evidence, Dr. Estes’ attorney read the following stipulation into
the record:
During the course of the hearing, the hearing
involving Dr. Estes on September 14, 1996,
Drs. Schuler and Dr. Clagett at different
points in the proceeding, in writing and
orally, approached counsel for the Board for
purposes of giving questions to be used
during [Board counsel’s] examination of the
witnesses at the hearing.
Furthermore, we’re stipulating that during a
recess the hearing examiner directed Doctor
Clagett to speak to [Board counsel] regarding
procedure of the case.
Counsel for Dr. Estes then moved that the proceedings be
dismissed “based on a violation of the regulations regarding who
can participate in this administrative proceeding or a violation
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of due process rights which are--which belong to Dr. Estes.”
The
motion was denied.
Dr. Estes argues that the indirect participation of the
recused Board members violated 201 KAR 8:410 Section 2 and 201
KAR 8:400 Section 5.
As to Dr. Estes’ argument concerning 201
KAR 8:410 Section 2, that particular provision provides “a board
member who has participated in the investigation of a
disciplinary action...will not sit as a member of the board
hearing that particular action.”
This argument is without merit
as there is no evidence which shows that any of the recused Board
members directly participated in the hearing or rendering of the
judgment.
Under 201 KAR 8:400 Section 5, “any board member who
participated in the preliminary investigations shall not
participate in the hearing process.”
Dr. Estes maintains that by
participating indirectly through advising Board counsel and by
providing Board counsel with questions to ask witnesses, the
recused Board members participated in the hearing process and
thus violated 201 KAR 8:400 Section 5.
We agree with the trial court that Dr. Estes places too
much emphasis on the word “process.”
As the trial court noted,
“[t]he Board members in question did not “hear” evidence, rather,
they continued the process initiated by their investigation by
assisting the Board’s counsel.”
As such, Dr. Smith, Dr. Clagett
and Dr. Schuler were serving in much the same capacity as
co-counsel or other legal assistants in aiding lead counsel at
trial.
Had the recused Board members acted to directly question
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witnesses, or to make arguments directly to the sitting Board
members, we may have been persuaded otherwise.
II. WAS IT IMPROPER FOR THE HEARING OFFICER
TO PERMIT DEBORAH FARLEY TO TESTIFY VIA
SPEAKER PHONE?
Shortly after filing her complaint against Dr. Estes,
Farley moved to Florida.
When Board counsel sought to allow
Farley to testify by speaker phone on July 13, 1996, the first
day of the hearing, Dr. Estes objected.
Dr. Estes argued that
Board counsel had plenty of time to depose Farley and present a
transcript in lieu of live testimony prior to the hearing.
Despite Dr. Estes’ objection, the Board voted to allow the
testimony.
Because of time constraints, Farley was not able to
testify on the first day of the hearing.
On the second day of
the hearing, September 14, 1996, Board counsel again sought to
introduce her testimony via speaker phone.
Dr. Estes objected,
and again argued that the Board had taken no steps to obtain
Farley’s testimony since July.
The Board again voted to allow
the testimony.
Dr. Estes maintains that Farley’s speaker phone
testimony was improper on two grounds: (1) he was not able to
confront her face to face, and (2) there was no way to insure
that the person testifying was Farley.
Dr. Estes also maintains
that it was improper for Farley to be sworn to testify by a court
reporter who was not in her presence.
We agree with Dr. Estes that Farley’s testimony should
not have been admitted as she was not properly sworn.
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As Farley
was testifying via speaker phone, there was no way to visually
verify that she was who she claimed to be.
However, we also agree with the trial court’s
conclusion that allowing Farley to testify was merely harmless
error.
As the trial court found:
even discounting the testimony of Ms.
Farley...there is ample evidence in the
record to support her claim of injury. The
photographs and medical records from St.
Luke’s Hospital were sufficient bases for
concluding that she suffered an injury at the
hands of appellant.
We have reviewed Farley’s complaint submitted to the Board with
the accompanying photographs, the medical records, and the other
testimony presented in conjunction with Farley’s claim.
Having
done so, we believe that there was sufficient evidence aside from
Farley’s testimony to permit the proceedings to continue.
III. WAS IT IMPROPER FOR THE HEARING OFFICER
TO ALLOW PHOTOGRAPHS PURPORTED TO BE OF
DEBORAH FARLEY INTO EVIDENCE?
When Farley submitted her written complaint to the
Board, she included three color photographs of a woman with a
large bruise on her chin area.
Gary Muncie, executive director
of the Board, testified that the three photographs were included
with the complaint and were subsequently placed in the complaint
file.
The hearing officer allowed the photographs to be
introduced into evidence over Dr. Estes’ objection, stating:
I think there has been sufficient
authentication that they come [sic] in as
party of the business, as part of his duties
as director. He receives, so I think that is
sufficient authentication.
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The hearing officer then decided to admit Farley’s complaint as
Exhibit 23 with the photographs marked as A, B, and C to that
exhibit.
Dr. Estes maintains that the photographs were
improperly admitted because the Board counsel failed to lay a
proper foundation and because they were not properly
authenticated.
We disagree.
Under 201 KAR 8:410:
The tribunal shall not be bound by the
technical rules of evidence. Subject to the
discretion of the board or the hearing
officer, the tribunal may receive any
evidence which it considers to be
reliable[.]... Documentary evidence may be
admitted in the form of copies or excerpts,
and need be authenticated only to the extent
that the tribunal is satisfied of its
genuineness and accuracy. Tangible items may
be received into evidence without the
necessity of establishing a technical legal
chain of custody so long as the board is
satisfied that the item is what is
represented to be[.]
We do not believe that the hearing officer abused his discretion
in admitting the photographs.
Even if the pictures were
inadmissible, there was still enough evidence in the record to
allow the proceedings to continue.
IV.
DID THE TRIAL COURT ERR IN FINDING THAT
THE BOARD’S CONCLUSIONS REGARDING ANDERSON
AND FARLEY WERE SUPPORTED BY SUBSTANTIAL
EVIDENCE?
Dr. Estes argues that the Board’s findings concerning
his treatment of Anderson and Farley were not supported by
substantial evidence.
Having reviewed the three volume
transcript of the hearing and the exhibits thereto, we find Dr.
Estes has failed to show that he produced evidence which compels
a finding in his favor.
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V. WERE THE BOARD’S FINDINGS CONCERNING
ANDERSON SUPPORTED BY EXPERT TESTIMONY?
In regard to Anderson, the Board found:
From the facts found above, it is the
Board’s determination that while Respondent’s
contract was to treat Anderson over a period
of 36 months, he voluntarily agreed to
continue treatment beyond this period. As
such, he had a continuing duty to ensure that
Anderson would receive quality treatment
consistent with reasonable dental practice.
The evidence does not support sufficient
cause to extend Anderson’s treatment to 5 ½
years, and it does not serve to excuse the
fact that, in November 1995, when treatment
was discontinued, Anderson still had
approximately 16 - 18 months of treatment
awaiting her before it could be considered
completed.
...
From the entire record presented, the
Board concludes that Respondent
inappropriately treated Sabrina Anderson by
using an extraordinary long treatment time in
excess of 5 years, from 7/9/90 - 11/8/95, to
render orthodontic dental treatment, in
violation of Count II of the Accusation, and
that such conduct violates the provisions of
KRS 313.130(3) by constituting unprofessional
conduct, gross ignorance and inefficiency in
the profession.
Dr. Estes contends that the Board’s determination that Anderson’s
treatment time was extraordinarily long is not supported by
expert testimony.
We disagree.
Dr. Timothy Perkins (Dr. Perkins), an orthodontist,
testified before the Board concerning Dr. Estes’ treatment of
Anderson.
According to Dr. Perkins, he saw Anderson on
January 25, 1996.
On that date, he took an oral history from
Anderson and her mother, examined Anderson, took several x-rays,
and made molds of her mouth.
His examination of Anderson showed
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that several teeth had no braces and a lower arch wire was
missing.
Dr. Perkins also found that several teeth were
misaligned and certain braces were either misaligned or missing
entirely.
He felt that Anderson’s dental hygiene was fairly
good, and further characterized it as average for a person her
age.
Anderson told him that she began treatment with Dr. Estes
in 1990.
Dr. Perkins testified that his review of the x-rays he
took showed a Class I skeletal malocclusion.
In regard to the
length of treatment, Dr. Perkins testified:
Q.
Now, with all of that being the
facts that you found in January, do
you have an opinion just as to
whether this person needed further
orthodontic treatment?
A.
Yes.
Q.
And could you say within a
reasonable degree of dental
certainty if you’re talking about
months of treatment or years of
treatment for those teeth to be
into more of a normal condition?
A.
I would estimate that it
would take approximately
16, 18 months to correct
the situation.
Q.
Now, is that an unusual length of
time for some patients who present
with those facial and dental
features?
A.
No. That would be maybe two years
with these same features, but since
some of the alignment has already
been done, 18 months would be
probably an accurate time frame.
Based on Dr. Perkins’ testimony that Anderson would
require an additional 1 ½ years of treatment on top of the five
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years she had already undergone, we do not believe that the
Board’s findings are unsupported by expert testimony.
IV.
IS KRS 313.130(3) CONSTITUTIONAL?
Under KRS 313.130(3), the Board can take disciplinary
action against any dentist for:
Unprofessional conduct, gross ignorance, or
inefficiency in his profession or failure to
accumulate a sufficient number of points for
continuing dental education[.]
Dr. Estes maintains that KRS 313.130(3) is unconstitutional
because it does not give sufficient notice of the type of
behavior proscribed.
We disagree.
“A statute is impermissibly vague when a person
disposed to obey the law cannot determine with reasonable
certainty what conduct is prohibited.”
Craig v. Kentucky State
Board for Elementary and Secondary Education, Ky. App., 902
S.W.2d 264, 268 (1995).
However, “not all statutes which a
reviewing court determines could have been drafted with greater
precision are void-for-vagueness if the law provides sufficient
warning to persons about what conduct is prohibited.”
Caretenders, Inc. v. Commonwealth, Ky., 821 S.W.2d 83, 87 (1991).
Caretenders also recognized that it is not necessary for a
statute to describe every way a violation could conceivably occur
in order to withstand a challenge for vagueness.
Caretenders,
821 S.W.2d at 88.
Dr. Estes’ argument in this regard is similar to the
argument made in Auxier v. Commonwealth, Board of Embalmers &
Funeral Directors, Ky. App., 553 S.W.2d 286 (1977).
In Auxier,
the statute at issue provided that a funeral director’s license
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could be revoked for offering “any service which is not a normal
function of a licensed funeral director or embalmer in a regular
service.”
Auxier, 553 S.W.2d at 287.
The appellant argued that
the statute was overbroad because no definition was given for
“normal function” and “regular service.”
In upholding the
statute, the Court held:
It is true that the words “normal” and
“regular”, standing alone, have very little
meaning. However they are not standing
alone; they are an integral part of the
provision. Kentucky courts have long taken
the position that the courts will “draw all
inferences and implications from the act as a
whole and thereby, if possible, sustain the
validity of the act.” Folks v. Barren
County, 313 Ky. 515, 232 S.W.2d 1010, 1013
(1950). Id. at 1013, the court stated:
“Where the lawmaking body, in framing the
law, has not expressed its intent
intelligibly, or in language that the people
upon whom it is designed to operate or whom
it affects can understand...the statute will
be declared to be inoperative and void.”
[Emphasis ours.] There can be no doubt that
the licensed embalmers and funeral directors
are well aware of what constitutes the normal
functions and regular services of their
profession. Appellant even admits his action
was not normal or regular. We, therefore,
find that KRS 316.150(2) is not
unconstitutionally vague or overbroad.
Id. at 335.336.
Like Auxier, we believe that there can be no
doubt that licensed dentists are well aware of what constitutes
unprofessional conduct, gross negligence, or inefficiency in the
profession.
Furthermore, as the Commonwealth points out, similar
statutes governing other professions have been upheld.
See
Nicholson v. Judicial Retirement & Removal Commission, Ky., 562
S.W.2d 306 (1978) (holding that “good cause” is not overbroad);
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Kentucky Bar Association v. Kramer, Ky., 555 S.W.2d 245 (1977);
Kentucky Bar Association v. Ricketts, Ky., 599 S.W.2d 454 (1980).
Having considered the parties’ arguments on appeal, the
order of the Jefferson Circuit Court is affirmed.
DYCHE, JUDGE, CONCURS.
McANULTY, JUDGE, DISSENTS AND FURNISHES SEPARATE
OPINION.
McANULTY, JUDGE, DISSENTING: Respectfully, I dissent.
The trial court believed that appellant placed too much emphasis
on the word “process.”
It is abundantly clear that the word
process must be read together with the word preceding it,
“hearing”.
Certainly, the indirect participation by the
“recused” board members is exactly what the regulation sought to
prohibit.
By permitting the “recused” board members to do
indirectly what they could not do directly eviscerates the
regulation.
I would remand the matter to
the Board with instructions to appoint special board members, if
necessary, thereby affording appellant a fair hearing in
compliance with 201 KAR 8:400, § 5.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Frank R. Recker
Cincinnati, OH
A. B. Chandler, III
Attorney General
Thomas A. Klausing
Louisville, KY
Mark Brengelman
Assistant Attorney General
Frankfort, KY
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