Nadeau v. Maine Bd. of Dental Exam'rs

STATE OF MAINE SUPERIOR COURT

KENNEBEC, 55. CIVIL ACTION

DOCKET NO. AP-09-18

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DENISE NADEAU, DDS.,

Petitioner

v. ORDER

MAINE BOARD OF DENTAL EXAMINERS,

Respondent

Before the court is petitioner Denise Nadeau, DDS.'s petition for review of a

final agency action of March 6, 2009, pursuant to 5 M.R.S.A. § 11001 and M.R. Civ. P.

soc.

In a decision dated July 13, 2007, the Maine Board of Dental Examiners found

that the petitioner violated certain provisions of the Maine Dental Practice Act and

imposed sanctions on the petitioner. In addition to the five-year probationary period

and sanctions, the Board assessed costs of $18,447.43. A petition for judicial review was

brought by Dr. Nadeau, see KENSC-AP-2007-55 (Me. Super. Ct., Ken. Cty., June 24,

2008) (Jabar, J.)). In the Superior Court decision, the Board's decision was partially

affirmed but the matter was remanded to the Board to, among other things, "hold a

hearing on costs, exercising its discretion with regard to reasonable costs based on

petitioner's ability to pay." [d.

The Board held hearings on August 15, 2008, and February 6, 2009, on the

matters remanded by the court. At the August meeting, the Board approved an offer of

employment extended to petitioner by Dr. Desjardins-King of Twin City Dental in

Bangor. The Board concluded that the total cost of the proceedings was $31,581.97.

That figure was then reduced to $24,751.06 to account for the fees incurred by the

Board's investigator, the transcription fees of the hearings, and costs incurred by the

Board members for time, travel, and lodging. The Board then voted to further reduce

the costs to $18,699.21, voting to split the transcription costs with petitioner. The Board

then voted to defer making a decision regarding petitioner's ability to pay until further

information could be obtained regarding her income with Dr. Desjardins-King.

At the February meeting, the Board took evidence regarding petitioner's ability

to pay. The Board heard evidence that petitioner owes her creditors approximately

$246,647.38. The Board's decision outlined four areas of concern. First, the Board heard

testimony that petitioner had sold two dental chairs which she was leasing to Dr.

Desjardins-King and that an attorney was currently attempting to recover the chairs.

Petitioner had not indicated to Dr. Desjardins-King that she was only leasing the chairs

at the time of the sale. Second, the Board heard testimony that petitioner is paying

$1225 in rent and utility payments on behalf of her adult son, which they claim could

have been applied to the debt with the Board. Third, petitioner had not listed her debt

to the Board on her list of debts, which, "demonstrated to the Board that Dr. Nadeau

holds the Board in low esteem and does not intend to place any priority to repayment of

her ordered costs to the Board and thereby burdening other licensees." (Board

Decision, March 6, 2009 at 4). Fourth, that petitioner's income could reasonably be

expected to increase following completion of her probation.

The Board then voted to assess costs of $18,699.21, payable at a rate of 1% ($187)

per month for the next twelve months at which time the Board would revisit the

payment plan and review updated information. Petitioner has filed for review,

requesting that this court vacate the decision of the Board and order that no costs be

imposed against petitioner.

2

When the decision of an administrative agency is appealed pursuant to M.R. Civ.

P. 80C the court reviews the agency's decision directly for abuse of discretion, errors of

law, or findings not supported by the evidence. Centamore v. Dep't of Human Servs.,

664 A.2d 369, 370 (Me. 1995). "An administrative decision will be sustained if, on the

basis of the entire record before it, the agency could have fairly and reasonably found

the facts as it did." Seider v. Bd. of Exam'rs of Psychologists, 2000 ME 206, <]I 9, 762 A.2d

551, 555 (citing CWCO, Inc. v. Superintendent of Ins., 1997 ME 226, <]I 6, 703 A.2d 1258,

1261). The court will "not attempt to second-guess the agency on matters falling within

its realm of expertise" and judicial review is limited to "determining whether the

agency's conclusions are unreasonable, unjust or unlawful in light of the record."

Imagineering, Inc. v. Superintendent of Ins., 593 A.2d 1050, 1053 (Me. 1991). "Inconsistent

evidence will not render an agency decision unsupported." Seider, 2000 ME 206, <]I 9,

762 A.2d at 555. "The finding of fact is clearly erroneous if no record evidence exists to

support it or if it is based on 'a clear misapprehension of the meaning of the evidence."'

Street v. Bd. of Licensing of Auctioneers, 2006 ME 6, <]I 8, 889 A.2d 319, 321 (quoting White

v. Zela, 1997 ME 8, <]I 3, 687 A.2d 645, 646). The burden of proof rests with the party

seeking to overturn the agency's decision, and that party must prove that no competent

evidence supports the Board's decision. Bischoff v. Bd. of Trs., 661 A.2d 167, 170

(Me. 1995).

Petitioner challenges the Board's decision on three grounds: (1) that the costs

assessed by the Board are unreasonable, (2) that the Board did not adequately consider

the financial hardship which will be imposed on petitioner, and (3) that the Board

exhibited bias against petitioner.

The first issue is whether the costs themsel ves are reasonable. The Board is

permitted by statute to assess actual expenses against a licensee upon finding a

3

violation. 10 M.R.S.A. § 8003-D. The statute further provides that '/[a]ctual expenses'

include, but are not limited to, travel expenses and the proportionate part of the salaries

and other expenses of investigators or inspectors, hourI y costs of hearing officers, costs

associated with record retrieval and the costs of transcribing or reproducing the

administrative record." Id. Petitioner claims the actual costs assessed here are

unreasonable because the court reporting and transcription fees were excessive,! the

cost of the Board's expert, Dr. Seigel, was excessive, and that Board has never assessed

costs approaching $18,000 in similar matters. 2

First are the transcription costs. Petitioner's argument is that the fees themselves

are excessive because the Board did not put its court reporting and transcription

requirements to bid. These costs totaled $11,704.13. Of these costs, the Board assumed

50%, leaving petitioner responsible for $5,852.06. Id. The record reflects that the Board

gave discussion to the reasonableness of the transcription costs and to what extent those

should be passed on to the petitioner. The Board found that because the petitioner had

no say in going to an adjudicatory hearing, the Board should assume at least some of

those costs. Additionally, the record reflects that the Board had received three quotes

regarding transcription. Considering these facts in conjunction with § 8003-D's plain

language authorizing transcription costs, petitioner's allegation that the transcription

costs are unreasonable is unsupported.

Next are the costs of the Board's expert, Dr. Siegel. Petitioner claims that

imposing a cost of $930 was unreasonable because Dr. Seigel did not need to be present

while lay witnesses testified. The Board, however, represented that it believed it was

1 Petitioner also pointed out that the Board failed to make any adjusbnent for the costs stemming from

an endodontics issue, as required by the court order, but did not raise that issue at either hearing.

Z This issue was not raised at either hearing.

4

appropriate to have Dr. Siegel listen to the lay witnesses because "[the Board] did

require additional consultation of the Board's choosing." Petitioner further suggested

that "[i]t is not clear that the statute permits the assessment of this fee[.]" This

argument seems baseless considering that the language states that actual expenses

"include, but are not limited to" the costs enumerated in the statutes. 10 M.R.S.A.

§ 8003-D (emphasis added). The Board's analysis is reasonable.

Finally is the fact that the Board has never assessed costs approaching $18,000.

As respondent points out, this issue was not raised at the hearing, and therefore is not

considered by the court. See New England Whitewater Ctr., Inc. v. Dep't of Inland Fisheries

& Wildlife, 550 A.2d 56 (Me. 1998) (holding that an issue not objected to at the

administrative level is not properly preserved for review by the courts).

The second issue is whether the Board gave adequate consideration to the

financial hardship that will be placed on petitioner by its decision. There are multiple

arguments here, but the key issue is whether the Board was required to determine

petitioner's ability to pay the entire amount based on her financial situation, or whether

it was permitted to consider her future ability to pay and set a payment plan.

Respondent argues that it exercised discretion in making its determination

because it heard evidence regarding petitioner's ability to pay and ordered petitioner to

pay costs at a rate of 1% per month in light of that evidence with petitioner's financial

situation to be reviewed one year hence. Petitioner then argues that the Board had

improperly considered factors such as the Board's sources of income, the "area's of

concern," outlined above, and the Board failed to explain how any of these factors along

with petitioner's financial situation supported its determination that petitioner must

pay the assessed costs, albeit in installments for the first twelve months.

5

The key case in this area is Zegel v. Bd. of Social Worker Licensure, 2004 ME 31, 843

A.2d 18. The petitioner in Zegel appealed from a decision that imposed costs without

regard to her ability to repay those debts. [d. at <j[ 19, 843 A.2d at 23. The Court stated

that I/[w]e conclude, on these facts, that the Board exceeded the bounds of its discretion

when it imposed the additional costs without making any inquiry into Zegel's ability to

pay and declined to address her ability to pay ...." [d. In a separate part of that

opinion, which discussed whether the Board adequately addressed why it chose the

sanctions that it did, the court stated "[b]oth statute and case law require the Board to

set out findings that justify its decision; we may not hypothesize about the Board's

reasoning." [d. (citing 5 M.R.S.A. § 9061).

Here, the Superior Court ordered the Board to "[exercise] its discretion with

regard to reasonable costs based on petitioner's ability to pay." (emphasis added.) The

Board then continued to discuss, in addition to petitioner's financial difficulties, that the

payment of the Board's costs would help it continue to provide services, that it was

troubled by the sale of the chairs, the support of petitioner's son, the fact that the Board

was not listed as a creditor, and that petitioner's income was likely to increase.

Inasmuch as the burden of proof rests on the petitioner to overturn the agency's

decision, the credibility of the petitioner and the evidence that she presented is clearly

at issue before the Board. Evidence of the sale of leased chairs, in which she did not

enjoy title, is relevant as to her honesty and credibility. The fact that the list of debts

presented by the petitioner to the Board did not include the payment of costs as

previously assessed by the Board clearly demonstrated an attitude by the petitioner

toward the agency responsible for determining her authority to practice dental

medicine in the future. Most important, the analysis by the Board of the income

producing potential of the petitioner is extremely important in light of its sanction

6

order, that is, that she was to be given a one-year period of minimum payments at the

conclusion of which the Board would consider her financial situation at that time

keeping in mind the Board's expertise in the area of economic circumstances of

successful practicing dentists in the State of Maine. The Board comments with respect

to its finding would reflect the burden on the Board to be conservative in its allowance

to reduce the assessment of costs inasmuch as it is funded by the very profession which

it regulates.

In examining the Board's decision to order the petitioner to pay the amount of

$18,699.21 in payments of $187 (1/%) per month for a year the court examines the

financial information presented to the Board for its consideration. The fundamental

issue is whether or not it was reasonable for the Board to find an expectation by the

petitioner to have disposable earning to meet the minimum sanction as imposed.

Among other items of information, the Board was presented information that in the

previous six months petitioner had paid $2600 as repayment to relatives and $1200 to

"Nicholas." For monthly expenses she indicates that she pays $1225 a month for rent

for an apartment that she has in Tampa, Florida, for a son, who is twenty-one years old,

goes to college, and has a part-time job.3 This amount is based upon $875 per month for

rent for the son's apartment and $350 per month for his utilities. The apartment lease

expired in December of 2008; the petitioner admitted that she voluntarily extended the

lease so that her son could live there. It is not unreasonable for the Board to have

considered the petitioner's displacement of priorities in suggesting that, rather than

comply with the law requiring payment of costs to a licensing Board responsible for her

ability to practice as a dentist in the State of Maine, she was instead paying the living

expenses of a twenty-one year old adult son. Under such circumstances, the Board

There is no evidence that the son is mentally or physically limited in any way.

7

clearly was satisfied that the amount of $187 per month was available from existing

spendable income notwithstanding substantial debt.

As to the future earnings, it was noted that between the dates of August 5, 2008,

and January 31, 2009, the petitioner's income was $44,346. The Board also deferred a

final decision with respect to the method of payment of the cost for one year as she

attempted to complete her probation and re-enter the full practice of dentistry, not an

unreasonable method of considering the financial circumstances of Dr. Nadeau.

The third issue is whether petitioner was afforded a fair hearing. This issue does

not appear to be properly preserved, because counsel did not object on the grounds of

bias in this case. See New England Whitewater, 550 A.2d 56 (Me. 1998). The record does

not reflect any objection that would put the Board on notice of a potential bias issue. In

fact, at the conclusion of the proceedings, petitioner's counsel was asked whether he

had "[a]ny concerns about this discussion[,]" and he replied that he would rest on what

he had already stated.

Petitioner points the Court to York Hosp. v. Dep't of Human Services, 2005 ME 41,

<JI 20, 869 A.2d 729, 753, for the proposition that allegations of bias do not always need to

be raised at the administrative level because bias is not always apparent until the

agency issues its decision. Petitioner states that the decision, as a whole, reflects that

bias unfairly tainted the Board's analysis. However, the "bias" petitioner points to in

the decision would also have been present at the hearing. Accordingly, this argument is

not properly preserved.

8

For the reasons herein stated the entry will be:

The decision of the Maine Board of Dental Examiners

in re Denise Nadeau, D.S.S. complaint number 06-20,

07-10, and 07-126 dated March 6,2009 is AFFIRMED.

?~

DATED: / -z, - ~<I- e;, 9

Donald H. Marden

Justice, Superior Court

9

Date Filed 4/15/09 Kennebec Docket No. AP-09-18

County

Action Petition For Review

80C

J.JABAR

Denise Nadeau, D.D.S. VS.

Maine Board of Dental Examiners

Plaintiff's Attorney Defendant's Attorney

Mark V. Franco, Esq. Dennis Smith, AAG

PO Box 4630 6 State House Station

Portland, ME 04112 Augusta Maine 04333-0006

Date of

Entry

4/16/09 Petition For Review Of Final Agency Action, filed 4/15/09. s/Franco, Esq.

4/16/09 Copy of Petition; Exhibit A, filed. s/Franco, Esq.

4/21/09 Appearance and Statement of Position Pursuant to 5 M.R.S.A §11005,

filed. s/Smith, AAG

5/11/09 Certification of Administrative Record, filed. s/Smith, AAG (in vaul~)

NOTICE AND BRIEFING SCHEDULE ISSUED

Copies mailed to attys. of record.

6/19/09 Bri~f of th~ P~tition~r, fil~d. s/Franco, Esq.

7/10/09 Bri~f of R~spond~nt, fil~d. s/Smith, AAG

7/24/09 R~ply Bri~f of th~ P~tition~r, fil~d. s/Franco, Esq.

_! . '3LJ

Notice of setbng tOt' '5 / ~1 t _

sent to attomey! ofrecort('".,~

9/15/09 Hearing held with the Hon. Justice Donald Marden, presiding.

Mark Franco, Esq. for the Petitioner and Dennis Smith, AAG for the

Respondent.

Oral arguments made to the court. Court to take matter under advisement.

12/24/09 ORDER, Marden, J. (12/24/09)

The decision of the Maine Board of Dental Examiners in re Denise Nadeau,

D.S.S. complaint number 06-20, 07-10, and 07-126 dated March 6, 2009 is

AFFIRMED.

Copies to attys. of record.

Copies to repositories