Opinion
19-P-344
06-11-2020
MOHAMED H. BUTT v. BOARD OF REGISTRATION IN DENTISTRY.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Mohamed H. Butt, D.M.D., appeals from a Superior Court judgment upholding the final decision of the Board of Registration in Dentistry (board) imposing disciplinary sanctions on Dr. Butt for employing an unlicensed individual to practice dentistry in Dr. Butt's private dental practice. On appeal, Dr. Butt argues that he was improperly denied an adjudicatory hearing prior to the board issuing its final decision. We affirm.
Background. Dr. Butt has been a licensed dentist since 1992, and by 2010, had offices in Marshfield, Somerville, and South Yarmouth. In the fall of 2010, under the impression that Karthik Ravikumar (Ravikumar or Kumar) held a limited license to practice dentistry, Dr. Butt hired Ravikumar to revive his South Yarmouth office. Ravikumar, however, misrepresented his professional status and, in fact, never held any license from the board.
Ravikumar is also referred to as "Mr. Kumar" in the record.
On November 23, 2015, the board issued Dr. Butt an order to show cause why it should not take disciplinary action against his dental license based on allegations that he had employed an unlicensed individual to practice dentistry. In his answer to the order, Dr. Butt admitted that he had "allowed Mr. Kumar to practice dentistry at the South Yarmouth office [under a compensation agreement] based on Mr. Kumar's representation that he held a limited license." In October 2016, the parties filed a stipulation of facts, which included that between September 2010 and May 2013, Ravikumar was employed as a dentist at a private dental practice located in South Yarmouth that was owned and operated by Dr. Butt; Ravikumar was so employed with Dr. Butt's knowledge and consent; and during this time, Ravikumar did not possess a valid license issued by the board to engage in the practice of dentistry in any capacity.
The order also alleged that Dr. Butt was subject to discipline for failing to comply with certain continuing education requirements. However, the board dismissed those allegations, and they are not at issue here.
In December 2016, prosecuting counsel for the board and Dr. Butt each moved for summary decision under 801 Code Mass. Regs. § 1.01(7)(h) (1998). Dr. Butt agreed that the material facts were not in dispute, but claimed that because there was no evidence that he knew, or should have known, that Ravikumar was not licensed, he should be granted summary decision. Prosecuting counsel argued that Dr. Butt's state of mind was irrelevant under the statutes and regulations cited in the show cause order and Dr. Butt was thus liable under the undisputed fact that he allowed an unlicensed individual to practice dentistry in his South Yarmouth office.
In January 2017, the chief administrative magistrate for the Department of Public Health (magistrate) recommended that the board grant prosecuting counsel's motion based on a finding that no genuine issue of material fact existed and that, as a matter of law, Dr. Butt's conduct warranted discipline. As pertinent here, the magistrate found that there was no genuine dispute that:
"Between approximately November 2010 and May 2013 [Dr. Butt] owned and operated a private dental practice in South Yarmouth, Massachusetts. . . . With [Dr. Butt's] knowledge and consent, Ravikumar was employed as a dentist at the Office during that period. During that period, Ravikumar did not have a dental license."The magistrate concluded that Dr. Butt should be subject to discipline under G. L. c. 112, § 61, because Dr. Butt's conduct in employing Ravikumar (1) undermined public confidence in the dentistry profession's integrity, in violation of 234 Code Mass. Regs. § 9.05(1) and the common law, and (2) placed the public health, safety, and welfare at risk, in violation of 234 Code Mass. Regs. § 9.05(8); and Dr. Butt had entered into an agreement with an unlicensed person under which that person had final decision-making authority over a patient's course of treatment and had professional practice decision-making, in violation of 234 Code Mass. Regs. §§ 5.20(3) and 9.05(2). The magistrate further noted that "[a] hearing is not necessary because it would not assist this officer's understanding."
The magistrate declined to find certain additional grounds for discipline that were sought by prosecuting counsel because they required a showing that Dr. Butt knew that Ravikumar was not licensed, which was absent.
In March 2017, the board issued a ruling on the motions for summary decision adopting the magistrate's recommended ruling, and offered Dr. Butt a sanctions hearing "to address the Board and provide the Board with information related to its determination of ordering a sanction based on the conduct and violations contained in the Board's [r]uling." Dr. Butt initially responded to the board with a request for a "full hearing," and later, through counsel, requested a sanctions hearing, which was held on June 7, 2017. Dr. Butt appeared at the hearing represented by counsel, who presented argument and mitigating factors on his behalf.
On July 10, 2017, the board issued its final decision placing Dr. Butt's dental license on probation for one year and imposing enumerated conditions. Dr. Butt moved for reconsideration, which the board denied.
Shortly thereafter, Dr. Butt filed a complaint in Superior Court seeking judicial review of the board's final decision under G. L. c. 30A, § 14. Dr. Butt also requested a preliminary injunction to stay his probation pending the court's review, but his request was denied. In August 2018, Dr. Butt filed a motion for judgment on the pleadings. The board then cross-moved for judgment on the pleadings. After a hearing, a judge denied Dr. Butt's motion, granted the board's motion, and affirmed the board's final decision. Judgment entered and this timely appeal followed.
According to the docket, after Dr. Butt filed his notice of appeal, his motion for reconsideration of the judgment was denied and he did not file another notice of appeal.
Standard of review. Our review of the board's final decision is circumscribed by statute and case law. We may not set aside an agency decision unless we determine that the board's decision was unlawful. See G. L. c. 30A, § 14 (7). Here, Dr. Butt has the burden to establish the invalidity of the board's decision. See Gauthier v. Director of the Office of Medicaid, 80 Mass. App. Ct. 777, 783 (2011). We may only interfere with the board's exercise of its broad discretion on a showing that Dr. Butt's substantial rights may have been prejudiced because the decision violates constitutional provisions; exceeds the board's statutory authority or jurisdiction; is based on an error of law or unlawful procedure; is unsupported by substantial evidence; is unwarranted by facts in the record; or is arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with the law. See G. L. c. 30A, § 14 (7); Lawless v. Board of Registration in Pharmacy, 466 Mass. 1010, 1011 (2013).
Discussion. Dr. Butt argues that the board violated his statutory and due process rights by not affording him an adjudicatory hearing before relying on the magistrate's summary decision. We disagree.
While G. L. c. 112, § 61, and due process required that Dr. Butt be given a hearing, "neither the statute nor due process required the board to hold a hearing to take evidence concerning undisputed facts. Such a hearing would be a meaningless exercise." Kobrin v. Board of Registration in Med., 444 Mass. 837, 846 (2005).
Here, Dr. Butt stipulated that he employed an unlicensed dental practitioner, and he contested only whether the facts were legally sufficient to expose him to liability and raised other legal defenses. Because the stipulated facts could properly be relied on as proof that Dr. Butt violated the relevant regulations and law, there was no issue of material fact for which a hearing was required. See Kobrin, 444 Mass. at 848. The board, therefore, properly resolved Dr. Butt's liability on the charged misconduct through a summary decision without an evidentiary hearing and properly relied on the resulting ruling in its decision. As such, due process only required the board to grant Dr. Butt a hearing to present evidence relevant to its determination of an appropriate sanction, which the board did. See id. at 846; Veksler v. Board of Registration in Dentistry, 429 Mass. 650, 652 (1999). Accordingly, the board's decision was based on proper procedures and did not result in a violation of Dr. Butt's statutory or constitutional rights.
At oral argument, Dr. Butt argued that there remained a factual dispute regarding the circumstances under which Ravikumar practiced dentistry at the South Yarmouth office. As this argument does not otherwise appear in the record, it is waived. See Carey v. New England Organ Bank, 446 Mass. 270, 285 (2006).
To the extent that Dr. Butt contested that prosecuting counsel failed to establish that Dr. Butt knew or should have known Ravikumar's licensure status, the magistrate properly noted that none of the recommended grounds for disciplining Dr. Butt required proving an element of knowledge. In any event, such a question is a matter of law, and Dr. Butt has failed to demonstrate error in the board's application of its regulations. See Hotchkiss v. State Racing Comm'n, 45 Mass. App. Ct. 684, 691-692 (1998).
Judgment affirmed.
By the Court (Milkey, Lemire & McDonough, JJ.),
The panelists are listed in order of seniority.
/s/
Clerk Entered: June 11, 2020.