Opinion
AP-19-43
04-21-2020
MARINA NAROWETZ, D.D.S, Petitioner, v. STATE OF MAINE BOARD OF DENTAL PRACTICE, Respondent
ORDER ON PENDING MOTIONS
William R. Stokes Justice, Superior Court
INTRODUCTION
Before the court are the following matters: (1) Motion to Specify Future Course of Proceedings, (2) Motion to Stay Sanctions, and; (3) Motion to Take Additional evidence, filed by Petitioner Marina Narowetz. Also, before the court is a Motion to Dismiss Petitioner's Independent Claims filed by the Respondent Board of Dental Practice.
BACKGROUND
Dr. Marina Narowetz (Dr. Narowetz) became licensed to practice dentistry in Maine in March 2011, and purchased a dental practice in Old Orchard Beach that June. The practice was located in a condominium building, of which Dr. Narowetz owned half. King Weinstein, or his LLC, owned the other half of the condominium building. Sometime in 2014, an ownership dispute between the two of them arose, resulting in protracted, costly and active litigation.
On September 17, 2018, Dr. Narowetz provided a free initial dental consultation for a patient described in the record only as "Charlie." Dr. Narowetz recalled that Charlie was relatively quiet, and she did not hear from or communicate with him again. Shortly thereafter, Dr. Narowetz received an envelope from Neil Weinstein, an attorney and King's brother. Assuming that the envelope related to the contentious litigation between her and King, Narowetz refused to open the letter, and instructed her staff to refuse any mail from the Weinsteins. As a result, when Neil hand-delivered the same mail (in what the Board described as a tense situation, with Neil raising his voice), Dr. Narowetz wrote "Refused" on the envelope, and gave it to a member of her staff with instructions to give it to the mail carrier and return it to the sender.
On October 29, 2018, Dr. Narowetz received correspondence from the Board of Dental Practice ("the Board"), forwarding a complaint Neil Weinstein had filed with the Board a few days earlier. It was only then that Dr. Narowetz realized that the correspondence from Attorney Weinstein she had earlier refused, concerned a request for dental records regarding her patient Charlie. Weinstein's complaint, however, stated that he mentioned that it was a request for records when he hand-delivered it to Dr. Narowetz. Dr. Narowetz did not try to contact either Weinstein or Charlie, claiming that she was not sure as to its veracity because it was unsigned, and further claiming it would have been inappropriate to contact Charlie because he was represented by counsel. Eventually, Dr. Narowetz provided Charlie's records to the Board. Shortly thereafter, the Board's attorneys released the records to Attorney Weinstein. On January 3, 2019, Dr. Narowetz received a signed release from Charlie authorizing her to release the dental records, which she did the following day.
The Board, following up on its complaint, voted to bring disciplinary charges against Dr. Narowetz on January 11, 2019, for her failure to surrender records to her patient in violation of Board Rules Chapter 9, § II(K), in violation of 32 M.R.S. § 18325(1)(E). The Board also voted a that time to offer Dr. Narowetz a consent agreement to resolve the charges. Pursuant to 5 M.R.S. § 10003, Dr. Narowetz requested a hearing to have the merits of the complaint decided by the Board. Both before and during the hearing, Dr. Narowetz filed motions to dismiss, arguing, among other things, that her due process rights were being violated, and that there was bias on the part of two of the Board's investigatory attorneys. Both motions were denied, and after the hearing was held on June 14, 2019, the Board found by a preponderance of the evidence that Dr. Narowetz had engaged in unprofessional conduct as established by Board Rules Chapter 9, § II(K), in violation of 32 M.R.S. § 18325(1)(E). After the Board's finding that Dr. Narowetz had committed a violation of its rules, Hearing Officer advised the Board that it could take into consideration Dr. Narowetz's "dishonesty" and "misrepresentations" in fashioning an appropriate sanction. The Board imposed the following:
A REPRIMAND; completion of continuing education courses of three (3) hours in ethics, and three (3) hours in record keeping, to be pre-approved by the Board's Complaint Officer and to be completed within ninety (90) days of the date of this decision and order, and not to be applied toward the biennial continuing education requirement; a civil penalty of $ 1, 500, plus the cost of hearing not to exceed $ 3, 000, both to be paid within ninety (90) days of the date of this decision and order; and a period of probation of five (5) years with the condition that the Licensee refrain from violation of the Dental Practice Act.
Following its decision and pursuant to the federal Health Care Quality Improvement Act, 42 U.S.C. § 11101-11111 and 45 C.F.R. § 60.1, 60.9, the Board made a report to the National Practitioner Data Bank (NPDB) and posted the Board's findings on its website. Dr. Narowetz filed a Rule 80C appeal, and at the same time, brought three additional counts: Count II seeking a declaratory judgment that the Board had acted in violation of both constitutional and statutory provisions; Count III seeking injunctive relief to enjoin the Board from publishing its findings on its website and on the NPDB; and Count IV seeking a stay of the sanctions against her.
The pending motions were originally scheduled for oral argument on February 3, 2020. That did not occur, however, because the justice assigned to this matter recused herself and the undersigned justice assumed responsibility for this case. In light of the outbreak of the coronavirus, and in accordance with the "Revised Emergency Order" of the Supreme Judicial Court and M.R.Civ.P. 7(b)(C)(7), the pending motions will be decided without oral argument.
STANDARD OF REVIEW
When reviewing a motion to dismiss under Rule 12(b)(6), courts "consider the facts in the complaint as if they were admitted." Bonney v. Stephens Mem. Hosp., 2011 ME 46, ¶ 16, 17 A.3d 123. The Court views the complaint "in the light most favorable to the plaintiff to determine whether it sets forth elements of a cause of action or alleges facts that would entitle the plaintiff to relief pursuant to some legal theory." Id. "A dismissal should only occur when it appears 'beyond doubt that a plaintiff is entitled to no relief under any set of facts that he might prove in support of his claim." McAfee v. Cole, 637 A.2d 463, 465 (Me. 1994) (internal quotations omitted). The general rule is that only facts alleged in the plaintiff's complaint may be considered by the Court during a motion to dismiss, and that if the Court does consider materials outside the pleadings, the motion is treated as one for summary judgment. Moody v. State Liquor & Lottery Comm'n, 2004 ME 20, ¶ 8, 843 A.2d 43. The Moody Court, however, recognized three exceptions to this rule, holding that a court may consider official public documents, documents that are central to the plaintiff's claim, and documents referred to in the complaint, without converting the motion to dismiss into a motion for summary judgment, when the authenticity of such documents is not challenged. Id. ¶¶ 9 - 11. In considering the Board's motion to dismiss, the court may review the Board's decision and the documents related to the hearing, including Dr. Narowetz' motions to dismiss filed at the agency level.
DISCUSSION
The court will first address the Board's motion to dismiss and will then consider Dr. Narowetz's motions.
The Board's Motion to Dismiss
The Board argues that, even though the complaint characterizes the additional claims as an "independent action," Counts II, III, and IV of Dr. Narowetz's complaint are, in fact, duplicative of the Rule 80C appeal and must be dismissed. The Law Court has long recognized the principle that "when a legislative body has made provision, by the terms of a statute or an ordinance, for a direct means by which the decision of an administrative body can be reviewed in a manner to afford adequate remedy, such direct avenue is intended to be exclusive." Fisher v. Dame, 433 A.2d 366, 372 (Me. 1981). "Resort to the courts by alternative routes will not be tolerated, subject only to an exception for those circumstances in which the course of 'direct appeal' review by a court is inadequate and court action restricting a party to it will cause that party irreparable injury." Id. The Law Court has commonly applied this principle in the realm of 80B and 80C appeals. See, e.g., Antler's Inn & Restaurant, LLC v. Dep't of Pub. Safety, 2012 ME 143, ¶ 14, 60 A.3d 1248 (affirming dismissal of plaintiff's § 1983 claims because they could be adequately reviewed in a 80C appeal); Gorham v. Androscoggin Cnty., 2011 ME 63, ¶ 22, 21 A.3d 115 ("With respect to independent claims that are not subject to Rule 80B, we have held that when direct review is available pursuant to Rule 80B, it provides the exclusive process for judicial review unless it is inadequate."); see also Kane v. Comm'r of the Dep't of Health & Human Servs., 2008 ME 185, ¶¶ 30-32, 960 A.2d 1196 (concluding that dismissal of § 1983 claim was not an abuse of discretion where claims of exclusion of evidence, failure to conduct meaningful review, and application of improper standard were duplicative of a Rule 80C appeal).
The Board is correct that all three counts are duplicative of the Rule 80C appeal process and should be dismissed. Counts II and IV both request duplicative relief available to Dr. Narowetz in the Rule 80C appeal process, with Count IV being particularly obvious, since it asks for a stay of the sanctions the Board levied. As the Board points out and as conceded by Dr. Narowetz, a request for a stay is not actually a cause of action at all, but is, instead, sought by way of a motion. That Dr. Narowetz also separately brings such a motion lends further support to the Board's position. With respect to Count III, the Board maintains that it must be dismissed because the federal law that governs sending information to the NPDB, 42 U.S.C. § 11101-11111 and 45 C.F.R. § 60.1, 60.9, is controlling and preemptive. The court agrees. Because Counts II, III and IV of Dr. Narowetz's complaint ask for relief that is already available to her in her Rule 80C appeal, they are not truly "independent" claims, and must be dismissed.
In light of the court's ruling on the Board's motion to dismiss, Dr. Narowetz's Motion to Specify Future Course of Proceedings is moot.
Dr. Narowetz's Motion to Stay Sanctions
The Maine Administrative Procedure Act sets outs the procedure by which a petitioner appealing an agency's final decision may seek a stay. Title 5 M.R.S. § 11004 provides in relevant part:
Application for a stay of an agency decision shall ordinarily be made first to the agency, which may issue a stay upon a showing of irreparable injury to the petitioner, a strong likelihood of success on the merits, and no substantial harm to adverse parties or the general public. A motion for such relief may be made to the Superior Court, but the motion shall show that application to the agency for the relief sought is not practicable, or that application has been made to the agency and denied, with the reasons given by it for denial, or that the action of the agency did not afford the relief which the petitioner had requested. In addition, the motion shall show the reasons for the relief requested and the facts relied upon, which facts, if subject to dispute, shall be supported by affidavits. Reasonable notice of the motion shall be given to all parties to the agency proceeding.
In order to prevail on her motion, Dr. Narowetz must establish the three elements noted above: irreparable injury, strong likelihood of success on the merits, and no substantial harm to adverse parties or to the general public. See Bangor Historic Track, Inc. v. Dep't of Agriculture, 2003 ME 140, ¶ 10, 837 A.2d 129 (quoting M.R. Civ. P. 65(a)) ("A temporary restraining order may be granted only if it 'clearly appears from specific facts shown by affidavit or by the verified complaint that immediate and irreparable injury, loss, or damage will result to the applicant.'"). Indeed, "[t]he writ of injunction is declared to be an extraordinary remedy only to be granted with utmost caution when justice urgently demands it and the remedies at law fail to meet the requirements of the case." Lisbon School Committee v. Lisbon Educ. Ass'n, 438 A.2d 239, 246 (Me. 1981) (internal quotations omitted).
Dr. Narowetz claims that she will suffer irreparable injury as a result of two sanctions in particular; the imposition of the monetary payment and the probation. Irreparable injury is defined as an "injury for which there is no adequate remedy at law." Id. (quoting Bar Harbor Banking & Trust Co. v. Alexander, 411 A.2d 74, 79 (Me. 1980)); see also Canadian Nat'l Ry. Co. v. Montreal, Me. & Atl. Ry., 786 F.Supp.2d 398, 432 (D. Me. 2011) ("Generally, the moving party satisfies the burden by proving inadequacy of legal remedies.") (internal citations omitted). The Board contends that Dr. Narowetz has not identified any irreparable harm as a result of the monetary penalty. The Board also argues that her assertion that the probation is being used as a mechanism to suspend or revoke her license for conduct for which she was already penalized, is unsupported by evidence.
Although the monetary penalties themselves clearly do not rise to the level of irreparable injury, see Canadian Nat'l Ry., 786 F.Supp.2d at 432 ("economic harm in an of itself is not sufficient to constitute irreparable injury.") (internal citations omitted), the probation, especially since it is for a rather lengthy period of five years, makes this a closer argument, see id. (citing Ross-Simons of Warwick, Inc. v. Baccarat, Inc., 102 F.3d 12, 18 (1st Cir. 1996) ("the moving party need not go so far as to 'demonstrate that the denial of injunctive relief will be fatal to its business.'"). Ultimately, however, this still falls short of being an "irreparable injury," since the probation does not prevent Dr. Narowetz from seeing patients or continuing her dental practice. Had the Board truly suspended or revoked her license (as she claims they are attempting to do) or in some other way greatly limited her business, Dr. Narowetz may have been able to prove irreparable injury. That is not the case here, however, and since it is only a probationary period her claim falls short of establishing that her legal remedies are insufficient.
Furthermore, Dr. Narowetz faces an additional up-hill battle in proving a strong likelihood of success on the merits. As the Board points out, in order to prevail, Dr. Narowetz needs to establish that the Board's choice of penalty was an abuse of discretion. Dyer v. Superintendent of Ins., 2013 ME 61, ¶ 19, 69A.3d416. Given that the sanctions the Board imposed are squarely within the permissible parameters delineated in 10 M.R.S. § 8005(A-1), Dr. Narowetz would likely have difficulty prevailing, especially given the exacting standard of review that comes with a Rule 80C appeal. See Sager v. Town of Bowdoinham, 2004 ME 40, ¶ 11, 845 A.2d 567 ("It is not sufficient to demonstrate that, on the facts of the case, the decisionmaker could have made choices more acceptable to the appellant or even to a reviewing court."). As a result, Dr. Narowetz has failed to meet her burden of establishing the three elements necessary to grant her motion to stay the Board's sanctions.
Dr. Narowetz's Motion to Take Additional Evidence
Dr. Narowetz's Motion to Take Additional Evidence asserts that many of the Board members were biased against her, and were unable to impartially decide the facts and merits of her case. She claims that one Board member was a prior or concurrent client of Dr. Narowetz's attorney at the time of the hearing, that another was a direct competitor, that another believed he had previously received a threatening letter from Dr. Narowetz, and that a fourth member disclosed during the hearing that she had a relative who was a former employee of Dr. Narowetz's. In order to more fully develop her bias argument, Dr. Narowetz seeks to depose the Board members to establish any and all biases they may have held against her.
The Maine Administrative Procedure Act (5 M.R.S. § 11006(1)(B)) sets out the requirements for taking additional evidence:
The reviewing court may order the taking of additional evidence before the agency if it finds that additional evidence, including evidence concerning alleged unconstitutional takings of property, is necessary to deciding the petition for review; or if application is made to the reviewing court for leave to present additional evidence, and it is shown that the additional evidence is material to the issues presented in the review, and could not have been presented or was erroneously disallowed in proceedings before the agency. After taking the additional evidence, the agency may modify its findings and decisions, and shall file with the court, to become part of the record for review, the additional evidence and any new findings or decision.(emphasis added). Whether or not to grant a motion to take additional evidence is within the court's discretion. See York Hosp v. Dep't of Human Servs., 2005 ME 41, ¶ 22, 869 A.2d 729.
As an initial matter, Dr. Narowetz failed to raise the issue of bias of Board members before the Board itself. She did file a motions to dismiss the agency action arguing that two of the investigatory attorneys were biased against her, but her motions failed to mention any potential bias on the part of Board members. Additionally, the alleged biases on which Dr. Narowetz now relies were not hidden or undiscoverable during the hearing; quite the contrary, Dr. Narowetz knew of these issues at the time of the hearing.
Parties are required to raise objections before the agency in order to preserve them on for appeal. Seider v. Bd. of Exam'rs of Psychologists, 2000 ME 206, ¶ 39, 762 A.2d 551. This rule is based on "simple fairness to those who are engaged in the tasks of administration, and to litigants, ... and ensures that the agency and not the courts has the first opportunity to pass on the claims of the litigants." Id. (quoting New England Whitewater Ctr. Dep't of Inland Fisheries and Wildlife, 550 A.2d 56, 58 (Me. 1988)). As a result, "issues not raised at the administrative level are deemed unpreserved for appellate review." Id. (quoting New England Whitewater Ctr., 550 A.2d at 58); see also Capitol Transport, Inc. v. United States, 612 F.2d 1312, 1325 (1st Cir. 1979) ("Contentions of bias should be raised as soon as practicable after a party has reasonable cause to believe that grounds for disqualification exist."). Because Dr. Narowetz failed to raise these issues at the hearing before the Board, she should not be allowed to raise them now.
CONCLUSION
The entry is:
Respondent's Motion to Dismiss Independent Claims (Counts II, III and IV) is GRANTED.
Petitioner's Motion to Specify Future Course of Proceedings is MOOT.
Petitioner's Motion to Stay Sanctions is DENIED.
Petitioner's Motion to Take Additional Evidence is DENIED.
The Clerk is directed to issue a briefing schedule.
The clerk is directed to enter this Order on the docket for this case by incorporating it by reference. M.R. Civ. P. 79(a).