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Angle v. Board of Dentistry

Court of Appeals of Oregon

October 17, 2018

Darrell L. ANGLE, D.D.S., Petitioner,
v.
BOARD OF DENTISTRY, Respondent.

          Argued and submitted February 5, 2018

          Oregon Board of Dentistry 20110184, 20120031, 20120147, 20120172, 20130035, 20140081

          Margaret H. Leek Leiberan argued the cause for petitioner. Also on the briefs was Jensen & Leiberan.

          Keith L. Kutler, Assistant Attorney General, argued the cause for respondent. Also on the brief were Frederick M. Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Petitioner seeks judicial review of an order of the Board of Dentistry suspending petitioner's license. Petitioner asserts that the board erred when it ruled on summary determination that petitioner had violated ORS 679.170(6) by failing to respond to two information requests from the board. Petitioner argues that he responded to the board's September request-by sending a letter asserting that he had already responded-and that the board's October letter did not require a response. The board maintains that petitioner's letter in reply to the board's September request was not a response within the meaning of ORS 679.170(6) and that petitioner did need to respond to the October request. Held: The board erred in deciding the matter on summary determination. ORS 679.170(6) requires a responsive response. However, on this summary determination record, the board failed to establish that petitioner's September letter was nonresponsive and failed to establish that the board's October letter required a response.

         Reversed and remanded.

         [294 Or.App. 471] AOYAGI, J.

         The Board of Dentistry suspended petitioner's license to practice dentistry after concluding that he violated ORS 679.170(6) by failing to respond to two information requests from the board. Petitioner seeks judicial review of the board's order. In his first assignment of error, petitioner argues that he did not "fail to respond" within the meaning of ORS 679.170(6). In his second assignment of error, he asserts that, if the order stands as to the violations, then the board abused its discretion by imposing an excessive sanction. For the reasons that follow, we conclude that the board erred in deciding on summary determination that petitioner violated ORS 679.170(6). Accordingly, we reverse and remand. Because of our disposition of the first assignment of error, we do not reach the second assignment of error.

         STANDARD OF REVIEW

         The board based its final order on a grant of summary determination. In contested case proceedings before the Board of Dentistry, an administrative law judge (ALJ) "shall grant" a motion for summary determination if, considering "all evidence in a manner most favorable to the non-moving party," there is "no genuine issue as to any material fact that is relevant to resolution of the legal issue as to which a decision is sought" and the moving party "is entitled to a favorable ruling as a matter of law." OAR 137-003-0580 (model rule); OAR 818-001-0005 (Board of Dentistry's adoption of model rule). We state the facts in accordance with that standard, and we review for legal error. Wolff v. Board of Psychologist Examiners, 284 Or.App. 792, 800, 395 P.3d 44 (2017).

         FACTS

         Petitioner is an orthodontist licensed by the board to practice dentistry in Oregon. In October 2014, petitioner and the board entered into a consent order in conjunction with a disciplinary settlement. Among other things, the consent order required petitioner to submit his next 20 completed cases to an approved reviewer before removing the patients' orthodontic bands: "At the completion of treatment [294 Or.App. 472] for the next 20 active patients, but prior to debanding, Licensee shall submit the cases for evaluation to a reviewer, preapproved by the Board and Licensee * * *." In the event that petitioner violated any terms of the consent order, the order allowed the board, "after notice and hearing, [to] enter further disciplinary orders including license revocation."

         On July 22, 2015, Wilcox, a reviewer who had been approved by the board, notified the board that petitioner had not contacted him to review any cases during the nine months since entry of the consent order. The board sent a letter to petitioner on the same day, requesting information:

"By your Consent Order, dated 10/17/14, you agreed to submit 20 orthodontic cases for review prior to debanding. Please submit to the Oregon Board of Dentistry a list of those patients for whom you have removed bands since 10/17/14 and identify the dentist(s) who reviewed those cases.
"If you have not removed bands from any patient since 10/17/14, provide a written narrative explaining why that has not happened.
"Oregon law requires that you respond to this written request within ten days. Failure to respond within ten days may constitute a violation of the Dental Practice Act. Please contact the Board as soon as possible if you need an extension of time."

During August 2015, the board twice contacted the law firm that represented petitioner and was told that a response to the board's letter was forthcoming. The board also called petitioner's office and learned from his staff that petitioner was accepting new patients and was booked into October.

         On September 21, 2015, the board sent another letter to petitioner, repeating its prior information request and adding a new one:

"By letter dated 7/22/15, copy enclosed, the Oregon Board of Dentistry requested information regarding the review of orthodontic cases per your Consent Order, dated 10/17/14. The Board has no record that you responded to that request.
[294 Or.App. 473] "Please respond to the Board's 7/22/15 request. Additionally, provide a written narrative why you did not respond to the Board's ...

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