stating that “[n]othing precludes the board from relying on its own knowledge of its prior deci- sions without placing those prior decisions in the eviden- tiary record”
How later courts described this case
- stating that “[n]othing precludes the board from relying on its own knowledge of its prior deci- sions without placing those prior decisions in the eviden- tiary record”
Written by the judges who cited it.
The opinion
372
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted June 10; determination of costs reversed and remanded, otherwise
affirmed August 10, 2022
Thomas L. HAYMORE, D. M. D.,
Petitioner,
v.
BOARD OF DENTISTRY,
Respondent.
Oregon Board of Dentistry
20150056, 20150200, 20150222, 20150223;
A170689
James C. Brown filed the briefs for petitioner.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the briefs for Respondent.
Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
Determination of costs reversed and remanded; other-
wise affirmed.
Nonprecedential Memo Op: 321 Or App 372 (2022) 373
SHORR, P. J.
Thomas Haymore, D. M. D., petitions for judicial
review of a final order issued by respondent, the Board of
Dentistry (“the Board”). That order concluded that Haymore
violated a statute and related administrative rules governing
licensed dentists. The order reprimanded Haymore, assessed
significant civil penalties and costs against him, required
additional continuing education classes, and provided for
a probationary period during which certain of Haymore’s
records were subject to the Board’s review. Haymore raises
six assignments of error to various legal conclusions by the
Board that ultimately led to its discipline. We reject each of
the assignments of error save one. In his fifth assignment of
error, Haymore contends that the Board erred in assessing
costs against him. The Board disputes most of that conten-
tion but concedes that the Board plainly erred to the extent
that the Board intended to assess 30 percent of the costs of
the proceeding against Haymore but mistakenly assessed
33 percent of those costs. We accept that concession, exercise
our discretion to correct the Board’s plain error, and reverse
and remand for the Board to correct its computational error.
We otherwise affirm.
A detailed recitation of the allegations, defenses,
and evidence presented to the Board would be of little ben-
efit to state agencies, the bar, or the general public. In sum,
Haymore is a licensed dentist who practices sedation or sleep
dentistry. The Board alleged that Haymore violated ORS
679.140(1)(d) and (e) and the administrative rules that gov-
ern licensed dentists. The Board concluded that Haymore
violated ORS 679.140(1)(d) and (e) and a number of admin-
istrative rules governing dentists when Haymore, among
other things, treated a five-year-old child with Versed, a
benzodiazepine, without an appropriate permit; failed to
ensure that two different patients who had undergone min-
imal sedation were discharged to the care of a responsible
party; and failed to document medication and treatment pro-
vided to patients. Based on those violations and Haymore’s
past disciplinary history with the Board, the Board disci-
plined him as generally summarized at the beginning of
this opinion.
374 Haymore v. Board of Dentistry
As noted, Haymore raises six assignments of error.
We summarily address each below.
In his first assignment of error, Haymore con-
tends that the Board erred when it initiated a 2008 pro-
ceeding against him without adopting a motion or receiving
a complaint against him, and that, as a result, the Board
lacked subject matter jurisdiction of this separate matter.
Haymore’s argument attacks the Board’s commencement
of a different 2008 proceeding that was resolved by a con-
sent order and was not appealed. We agree with the Board
that that matter is not before us and provides no basis for
Haymore to attack the Board’s subject matter jurisdiction in
this matter. For similar reasons, we reject Haymore’s fourth
assignment of error, which contends that the Board erred
in failing to deliver the consent order, which resolved that
separate 2008 proceeding, to Haymore’s counsel of record.
In his second assignment of error, Haymore con-
tends that the Board erred in not allowing him to present
oral argument after he submitted exceptions to the Board’s
January 14, 2019, Amended Proposed Order.1 Haymore
contends that he was entitled to oral argument under ORS
183.460 and OAR 137-003-0650(1). Having reviewed both,
each provides an adversely affected party with the right
to “file exceptions and present argument” to the agency
regarding an adverse proposed order, which Haymore did
below. But neither the statute nor the rule provides for a
right to oral argument to contest a proposed order.
In his third assignment of error, Haymore contends
that the Board erred when it made substantial modifications
to the administrative law judge’s (ALJ’s) Proposed Order
without identifying and explaining those modifications.
Haymore contends that that claimed error violated ORS
183.650(2), OAR 137-003-0665(3), and state and federal con-
stitutional provisions. Having reviewed the relevant orders,
we disagree that the Board failed to identify or explain any
substantial modifications as required by ORS 183.650(2)
and the applicable administrative rule. We reject Haymore’s
1
Haymore also raises an entirely unrelated argument in that assignment of
error that he does not even attempt to demonstrate is preserved. We reject that
argument because it is not preserved.
Nonprecedential Memo Op: 321 Or App 372 (2022) 375
constitutional arguments because he never develops those
arguments in a way that allows us to assess their merits.
In his fifth assignment of error, Haymore contends
that the Board erred in assessing costs against him because,
he maintains, those costs violated the Oregon Department of
Justice billing guidelines and “thereby deprived” Haymore
of various statutory and constitutional rights. We agree with
the Board that Haymore does not identify where he pre-
served that argument before the agency. Indeed, Haymore
contends that he preserved the argument by raising the
Board’s obligation to identify and explain substantial modi-
fications to the ALJ’s order, which presents a different issue.
We therefore reject that argument as unpreserved.
To the extent that Haymore is raising an indepen-
dent argument that the Board’s imposition of costs was
improperly guided by the Board’s prior decisions assessing
costs, which decisions were not in the evidentiary record, we
reject that argument on the merits. See Gustafson v. Board
of Accountancy, 270 Or App 447, 457, 348 P3d 343, rev den,
358 Or 374 (2015) (stating that “[n]othing precludes the
board from relying on its own knowledge of its prior deci-
sions without placing those prior decisions in the eviden-
tiary record”).
We also reject Haymore’s contention that the Board
abused its discretion in assessing costs. ORS 679.140(5)(j)
provides the Board with specific authority to impose “the
costs of the disciplinary proceedings as a civil penalty.”
Here, the Board acted within its discretion in awarding only
a portion of those costs.
As we noted at the outset, however, the Board erred
in assessing 33 percent of the total costs when it intended to
set Haymore’s share at 30 percent of those costs. The state
contends that that error was not preserved but concedes
that the Board plainly erred in that computational error.
We accept the state’s concession and exercise our discretion
to correct that plain error.
Thus, with one exception, we reject all of the argu-
ments presented in Haymore’s fifth assignment of error
either on preservation grounds or on the merits. As to that
376 Haymore v. Board of Dentistry
one exception, we remand the order to the Board solely to
correct its computational error that resulted in an improper
assessment of 33 percent rather than 30 percent of the costs
of the proceeding.
Haymore’s final and sixth assignment of error
claims that the Board violated his “rights under provisions
of the Oregon Revised Statutes, the Oregon Constitution,
and the due process clause of the Fourteenth Amendment
[to] the [United States] Constitution,” because the Board
allowed Paul Kleinstub to present himself as a dentist
and then act as the Board’s investigator and testify when
Kleinstub was not currently licensed as a dentist. We reject
Haymore’s argument that Kleinstub was practicing den-
tistry by participating in this matter as an investigator or
that he was required to be a currently-licensed dentist to
provide his testimony.
In sum, we reject all of Haymore’s arguments except
for his argument that the Board made a computational error
in assessing costs, and we remand solely for the Board to
correct that computational error.
Determination of costs reversed and remanded; other-
wise affirmed.