Gorayeb v. Maine Board of Licensure in Medicine

STATE OF MAINE SUPERIOR COURT

KENNEBEC, ss. CIVIL ACTION

Docket No. AP-19-32

MARC GORAYEB MD,

Petitioner,

DECISION AND ORDER

v. (M.R. CIV. P. SOC)

MAINE BOARD OF LICENSURE IN

MEDICINE et al.,

Respondent.

INTRODUCTION

Petitioner Marc Gorayeb is a New Hampshire attorney who also held a

medical license in Maine. In 2019, Respondent Maine Board of Licensure in

Medicine ("the Board") denied Petitioner's license renewal application after

applying 02-373 C.M.R. ch. 1, § 9 ("the Competency Rule")-a then-new

licensure rule governing physicians who had not recently engaged in the active

practice of clinical medicine. In this rule BOC appeal, Petitioner challenges the

facial validity of the Competency Rule as well as the Board's adjudicatory

decision to deny the renewal of his medical license. Petitioner is representing

himself prose and the Board is represented by Attorney Jonathan R. Bolton.

The matter is now fully briefed and will be decided without oral argument

pursuant to M.R. Civ. P. 7(b)(7) and 80C{l).

BACKGROUND

The Competency Rule.

The Competency Rule was added to the Board's rules in 2017 as part of a

larger rul~making pro~ess that repealed and replaced the entirety of Chapter 1

(the chapter governing physician licensure). A.R. 379-81, 385,424.

In its original version, the proposed Competency Rule would have

required- as a condition of renewing a medical license- that a physician

participate "in the active clinical practice of medicine for at least three (3)

months of the twelve (12) months prior to filing the renewal application." A.R.

406. After notice and comment, the rule was revised, partly in response to a

comment submitted by the Maine Medical Association (MMA). A.R. 459-60,

479.

MMA expressed opposition to the requirement on the grounds that it was

overly restrictive and did not account for circumstances in which a physician

was unable to practice for several months due to illness or other reasons. A.R.

459-60. MMA recognized, however, "that physicians who have been out of

practice for years should have to meet additional standards before getting back

into practice" and suggested alternatives, such as increased monitoring and

supervision. A.R. 460.

The Board accepted MMA's comment in part and articulated its reasons

for imposing the requirement:

The Board included this requirement in the proposed rule to ensure

that physician applicants who have not been actively practicing

clinical medicine are identified and, when necessary, are required to

obtain updated education and/ or training. The Board understands

that clinical skills rapidly decline following a break from clinical

medicine, which poses a risk to the safety of the public should an

applicant or a licensee seek to return to clinical practice after an

extended period and/ or without remedial education and training.

The Board also understands that there are many physicians with

"active" medical licenses who renew their licenses every two years

and have not practiced clinical medicine for many years, which also

poses a risk to the public.

A.R. 460.

While the Board continued to support the rule, it agreed that some

revisions were warranted. It thus amended the proposed rule to allow for a

"case by case" evaluation of the competency of licensees ·who have not engaged

in clinical. practice .du~h'1g the 24 months immediately preceding the filing of a

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license renewal application. A.R. 460-61.

Due to the substantive nature of the amendments, the Competency Rule

underwent an additional round of public comment. A.R. 4 79. The Board

published the revised rule on its website on August 29, 2017. A.R. 479. It sent

notice through its mailing list to interested persons on August 30, 2017. A.R.

479. The Secretary of State published the rulemaking notice in its rulemaking

bulletin and in five Maine newspapers on August 30, 2017. A.R. 418, 479. And

Public comment was reopened until September 29, 2017. A.R. 479.

The Board received one public comment, which criticized the

Competency Rule on the grounds that it was vague and gave the Board too

much discretion to determine competency. A.R. 464. The Board rejected the

comment and adopted the rule on October 10, 2017. A.R. 424-25. The rule

went into effect on December 23, 2017. A.R. 424, 481.

In Chapter 1, Section 8(3) of the final rule, the Board sets forth criteria

for renewing an active license, including a demonstrad.on of "continuing clinical

competency as required by this rule." 02-373 C.M.R. ch. 1, § 8(3)(A)(4). Section

9 then states as follows:

SECTION 9. CONTINUING CLINICAL COMPETENCY

REQUIREMENTS

1. Requirements

A. General

If an applicant has not engaged in the active practice

of clinical medicine during the 24 months immediately

preceding the filing of the application, the Board may

determine on a case by case basis in its discretion

whether the applicant has adequately demonstrated

continued competency to practice clinical medicine.

B. Demonstrating Current Competency

The Board may require an applicant to submit to any

competency assessment(s) or evaluation(s) conducted

by a program approved by the Board. If the

assessment/ evaluation identifies gaps ·or..deficiencies,

the applicant must complete an educational/ remedial

program to address them. The Board retains the

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discretion regarding the method of determining

continued competency based upon the applicant's

specific circumstances. The methodology may include

but is not limited to successful passage of

examination(s), completion of additional training, and

successful completion of a formal re-entry to practice

program approved by the Board.

C. If the Board determines that an applicant requires a period

of supervised practice and/ or the completion of an

educational or training program, the Board may at its

discretion issue the applicant a probationary license

pursuant to a consent agreement or issue an applicant a

temporary license in conjunction with a return to practice

plan.

D. All expenses resulting from the assessment and/or any

training requirements are the sole responsibility of the

applicant and not of the Board.

02-373 C.M.R. ch. 1, § 9.

Proceedings Before the Board

At the time of the Board proceedings, Petitioner was a patent attorney

employed by a medical device company in New Hampshire. A.R. 3, 75.

Petitioner, also a physician, was issued a Maine medical license in April 2010.

A.R. 3. On April 12, 2018, Petitioner filed an application to renew his Maine

medical license. A.R. 4. He indicated on his application that he had not

practiced clinical medicine in the past 24 months. A.R. 75.

The Board concluded that Petitioner did not meet the requirements for

an active license due to his lack of recent clinical practice. A.R. 76-79. In lieu of

an active license, the Board offered Petitioner an administrative license or an

emeritus license, both of which Petitioner declined. A.R. 85.

On May 29, 2018, the Board issued a formal "preliminary denial" of

Petitioner's renewal application. A.R. 1, 87-88. In the denial notice, the Board

noted Petitioner's lack of recent practice experience and cited two statutory

grounds for denying his renewal request. Specifically, the Board stated: ·

[1] Pursuant to 32 M.R.S. § 3282-A(2)(E), the Board may deny or

refuse to renew a license, or impose other discipline for engaging 1n

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conduct that evidences a lack of ability or fitness to discharge the

duty owed by the licensee to patient or the general public or that

evidences a lack of knowledge or inability to apply principles or

skills to carry out the practice for which the licensee is licensed. [2]

Pursuant to 32 M.R.S. § 3282-A(2)(H), the Board may deny or

refuse to renew a license, or impose other discipline for [a] violation

of a Board rule. Board Rules Chapter I,§ 8(3)(A)(4) requires an

applicant seeking renewal of an active license [to] demonstrate

continuing clinical competency as required by Chapter 1. You have

not adequately demonstrated continued competency to practice

medicine.

A.R. 87.

Petitioner filed a timely intra-agency appeal, A.R. 89-93, and the Board

issued a notice outlining the issues to be considered at the upcoming

adjudicatory hearing. A.R. 153-54. In a pre-hearing order, the Hearing Officer

Rebekah Smith, Esq., determined that Petitioner's challenges to the validity of

the Competency Rule were "outside the scope of the present hearing" and "a

matter for court determination." A.R. 178. The Hearing Officer subsequently

issued an Evidentiary Order, dated May 5, 2019, excluding certain witnesses

and exhibits proposed by Petitioner on relevance and other grounds. A.R. 314­

16.

A hearing was held on May 14, 2019. For witnesses, Petitioner called the

Board's investigative secretary, its licensure specialist, and its executive

director. The State meanwhile called Petitioner as its sole witness. Following

hearing, the Board issued findings of fact and conclusions of law.

Specifically, the Board found that: Beginning in 2008, Petitioner went to

work as a patent attorney at a medical devices company in New Hampshire.

A.R. 3. During his first few years of employment at the company, Petitioner

engaged in part-time emergency room practice on weekends. Id. He eventually

ceased part-time emergency room work, though he could not recall precisely

when. A.R. 4. Moreover, at the time of the hearing, Petitioner did not hold staff

privileges at any hospital or otherwise maintain any hospital affiliations. Id.

Petitioner could not recail the last time he saw a patient in aclinical setting. Id.

The Bo~d further found that Petitioner, by his own admission, had not

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engaged in clinical medical practice in the previous 24 months and would not

meet the requirements for reinstatement of his license. A.R. 5. Additionally, the

Board emphasized that Petitioner was unwilling to perform the activities

specified in the Board's reentry to practice guidelines, such as taking a special

purpose examination or participating in a mini-residence or mentorship

arrangement. Id.

Based on these findings of fact, the Board determined that nonrenewal

was warranted under 32 M.R.S. § 3282-A(2)(H), which allows the Board to

refuse to renew a license where the licensee is in "violation of . . . a rule

adopted by the board." 32 M.R.S. § 3282-A(2)(H); A.R. 7. Specifically, the

Board concluded that Petitioner failed to comply with the Competency Rule,

see 02-373 C.M.R. ch. 1, §§ 8(3)(A)(4) & 9, because he "had not been engaged

in active clinical medicine during the 24 months preceding his application and

did not otherwise demonstrate continuing clinical competency." A.R. 7. The

Board, however, found in Petitioner's favor with respect to the other alleged

statutory ground for nonrenewal, concluding that Petitioner did not exhibit

incompetence as defined in 32 M.R.S. § 3282-A(2)(E). A.R. 7.

The Board thus affirmed the preliminary denial of Petitioner's renewal

application. A.R. 7. It also voted to require Petitioner to pay $1,672.50 in costs

associated with the investigation and hearing. A.R. 8; see also 10 M.R.S. §

8003-D.

Procedural History

On July 8, 2019, Petitioner appealed the Board's decision to this court.

In addition to his Rule BOC appeal, Petitioner filed numerous independent

claims against the Board and several other defendants. On motion by

Defendants/Respondents, the Court dismissed all of Petitioner's independent

claims, leaving only the Rule BOC appeal. See Order dated January 10, 2020.

Petitioner then filed a series of procedural motions, including: (1) a motion to

report questions.of law to the Law Court, (2) a motion to reconsider the

di~missal .of the independent claims, (3) a motion for leave to file a second

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amended complaint, (4) a motion to order the Board to renew Petitioner's

license, (5) a motion for leave to take additional evidence and discovery, and

(6) a motion to order pre-trial procedure and the taking of testimony. The Court

denied all these motions. Briefing on the merits of Petitioner's Rule BOC appeal

followed.

STANDARD OF REVIEW

In this appeal, Petitioner asks the court to strike down the Competency

Rule as facially invalid. Judicial review of an agency rule is governed by 5

M.R.S. § 8058-the standards of which are discussed in greater detail below.

Additionally, Petitioner challenges various aspects of the Board's

proceedings and decision. The Law Court has frequently reaffirmed the

principle that judicial review of administrative agency decisions is "deferential

and limited." Passadumkeag Mountain Friends v. Bd. of Envtl. Prot., 2014 ME

116, ,r 12, 102 A.3d 1181 (quoting Friends of Lincoln Lakes v. Bd. ofEnvtl.

Prot., 2010 ME 18, ,r 12, 989 A.2d 1128). The court is not permitted to overturn

an agency's decision "unless it: violates the Constitution or statutes; exceeds

the agency's authority; is procedurally unlawful; is arbitrary or capricious;

constitutes an abuse of discretion; is affected by bias or error of law; or is

unsupported by the evidence in the record." Kroger v. Dep't ofEnvtl. Prot., 2005

ME 50, ,r 7, 870 A.2d 566. The party seeking to vacate a state agency decision

has the burden of persuasion on appeal. Anderson v. Me. Pub. Emp. Ret. Sys.,

2009 ME 134, ,r 3, 985 A.2d 501.

DISCUSSION

I. Petitioner's Challenges to the Competency Rule

As noted, the court's review of the Competency Rule is governed by 5

M.R.S. § 8058, which divides rule-based challenges into two categories:

procedural and substantive. Both types of challenges are at issue here, and the

court addresses-them separately below.

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A. Procedural Challenges

Under section 8058, the court may declare a rule procedurally invalid in

three circumstances. First the court "shall declare the rule invalid" if "the court

finds that a rule exceeds the rule-making authority of the agency." 5 M.R.S. §

8058(1). Second, a rule is void per se if the agency fails to comply with certain

provisions governing the rulemaking process. 5 M.R.S. §§ 8058(1), 8057(1)-(2).

The violations rendering a rule per se invalid are enumerated in 5 M.R.S. §

8057(1)-(2) and "principally involve a denial of public participation." Fulkerson

v. Comm'r, Me. Dep't ofHuman Servs., 628 A.2d 661, 664 (Me. 1993).

Third, "the court may invalidate the rule" based on "any other procedural

error alleged," provided "the court finds the error to be substantial and related

to matters of such central relevance to the rule that there is a substantial

likelihood that the rule would have been significantly changed if the error had

not occurred." 5 M.R.S. § 8058(1). Thus, errors in the rulemaking process­

with the exception of the violations specified in 5 M.R.S. § 8057-are subject to

"a harmless error standard similar to that employed in ordinary civil litigation."

Fulkerson, 628 A.2d at 663.

Here, Petitioner urges the court to invalidate the Competency Rule on

numerous procedural grounds. His first challenge involves the Board's

compliance with the notice provisions set forth in 5 M.R.S. § 8053(1}, which

describes the persons to whom "the agency shall deliver ... notice" of proposed

rulemaking. Among those entitled to notice is "[a]ny person specified by the

statute authorizing the rulemaking." 5 M.R.S. § 8053(1)(A).

Petitioner reasons that because the Board is authorized to adopt rules

governing the licensing of physicians, it must individually notify all licensed

physicians of proposed rulemaking. The court, however, finds no requirement

that notice be individually delivered to all physicians, either in section 8053 or

the applicable enabling statute. While licensed physicians may be the proper

subjects· of the Board's rulemaking authority, they are not "specified" as

persons entitled to notice of proposed rulemaking. Indeed, 32 M.R.S. § 3269­

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the enabling statute that vests the Board with rulemaking power-is silent

regarding the issue of notice. Thus, the Board had no statutory obligation to

individually notify all licensed physicians as they are not "person[ s[ specified by

the statute authorizing the rulemaking." 5 M.R.S. § 8053(l)(A); 32 M.R.S. §

3269.

Petitioner next faults the Board for failing to comply with the citation

requirements of 5 M.R.S. §§ 8057-A and 8063-B. See 5 M.R.S. § 8057-A(4) ("At

the time of adoption of any rule, the agency shall file with the Secretary of State

... citations for up to 3 primary sources of information relied upon by the

agency in adopting the rule"); 5 M.R.S. § 8063-B ("For every rule proposed by

an agency ... the agency shall file with the Secretary of State citations for up

to 3 primary sources of information relied upon by the agency in developing the

proposed rule"). Petitioner cannot prevail on this claim, even assuming the

issue is reviewable.1 The alleged citation error is not a procedural deficiency

that renders a rule automatically void. 5 M.R.S. §§ 8057(1)-(2), 8058. Thus, to·

prevail, Petitioner must demonstrate that the error is "substantial and related

to matters of such central relevance to the rule that there is a substantial

likelihood that the rule would have been significantly changed if the error had

not occurred." 5 M.R.S. § 8058(1). Petitioner has not made such a showing. The

court has no basis to believe that the rule would have been different but for the

Board's failure to file primary source information with the Secretary of State.

As such, the court finds Petitioner's procedural challenges unconvincing.

B. Substantive challenges.

Under section 8058, the court's "substantive review of [a] rule shall be to

determine whether the rule is arbitrary, capricious, an abuse of discretion or

otherwise not in accordance with law." 5 M.R.S. § 8058. Here, Petitioner

challenges the substantive validity of the Competency Rule, asking the court to

find it facially unconstitutional. Among other arguments, Petitioner contends

1

The parties dispute whether the alleged citation deficiencies are subject to

judicial review.

9

that the Competency Rule is void for vagueness and violates the Equal

Protection Clause.

Vagueness. First, Petitioner argues that the rule gives the Board

unfettered discretion to decide whether to renew the licenses of applicants who

have not engaged in the active practice of clinical medicine in the last two

years. Moreover, Petitioner contends that the rule fails to provide any guidance

regarding how an applicant may demonstrate continuing clinical competency.

These arguments are rooted in the void for vagueness doctrine.

"A 'void for vagueness' claim is based on the due process protections set

forth in the United States and Maine Constitutions and focuses on the need for

adequate notice." Doane v. HHS, 2021 ME 28, 1 17, 250 A.3d 1101. "[T]hose

subject to sanction by law [must] be given fair notice of the standard of conduct

to which they can be held accountable." Town ofBaldwin v. Carter, 2002 ME

52, 1 10, 794 A.2d 62 (quotation marks omitted). A provision is

· unconstitutionally vague "when its language either forbids or requires the

doing of an act in terms so vague that people of common intelligence must

guess at its meaning, or if it authorizes or encourages arbitrary and

discriminatory'' decision-making. Id. (citations and quotations omitted).

In this case, Petitioner has not convinced the court that the Competency

Rule is unconstitutionally vague. The Competency Rule provides fair notice

that the Board will engage in case-by-case scrutiny of licensees who have not

actively practiced in the last two years. It also provides specific examples of the

ways in which an applicant may demonstrate continuing clinical competency,

including "successful passage of examination(s), completion of additional

training, and successful completion of a formal re-entry to practice program

approved by the Board." 02-373 C.M.R. ch. 1, § 9(1)(B). The Competency Rule

therefore conveys a sufficiently accurate concept of the types of actions

required to demonstrate continuing clinical competency to the Board.

Additionally, _a lthough the rule gives the Board considerably discretion, .

that discretion is guided by the examples set forth in sectiqn 9(1)(B). The court

also notes that some latitude on the part of the Board is warranted and that

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overly precise standards would be unworkable in this context. See Doane, 2021

ME 28, ,r 27, 250 A.3d 1101. Indeed, a licensee's circumstances and

educational needs are likely to vary significantly, requiring a discretionary

approach to the determination of continuing clinical competency. And to the

extent Petitioner raises concerns regarding the arbitrary exercise of that

discretion, those fears are mitigated by the procedural safeguards provided by

the Administrative Procedures Act ("APA"), including judicial review of the

Board's decisions. See id. ,r 22 (explaining that the APA's safeguards assuaged

void for vagueness concerns regarding the possibility of arbitrary

administrative decision-making).

Equal Protection. Petitioner further argues that the rule violates the

Equal Protection Clause because other health care providers-including

osteopathic physicians, nurses, and dentists-are not subject to the

requirements of the Competency Rule. The Equal Protection Clause "prohibits

any state from denying to any person within its jurisdiction the equal

protection of the laws, and requires, generally, that persons similarly situated

be treated alike." MSAD 6 Bd. ofDirs. v. Town of Frye Island, 2020 ME 45, ,r 41,

229 A.3d 514. Where, as here, "'the government action does not implicate

either a fundamental right or a suspect class, the different treatment accorded

to similarly situated persons need only be rationally related to a legitimate state

interest."' Id.

"Under this standard of review, government action 'bears a strong

presumption of validity."' Id. ,r 42. It is generally presumed that governmental

actors '"have acted within their constitutional power despite the fact that, in

practice, their laws result in some inequality."' Id. "The party challenging the

government action must show 'that there exists no fairly conceivable set of

facts that could ground a rational relationship between the challenged

classification and the government's legitimate goals."' Id.

Petitioner cannot satisfy such a showing. It is undeniable that .the State

has a legitimate interest in ensuring that physicians licensed to practice in

Maine are competent. Moreover, as the Board found during the rulemaking

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process: "[C]linical skills rapidly decline following a break from clinical

medicine, which poses a risk to the safety of the public should an applicant or

a licensee seek to return to clinical practice after an extended period and/ or

without remedial education and training." A.R. 460. The Competency Rule's

requirement that an applicant make an affirmative showing of competency after

two years or more of non-practice is plainly rationally related to the legitimate

state interest in safeguarding the public from incompetent physicians.

That the Competency Rule applies only to physicians (and not

osteopathic physicians, nurses, and dentists) does not make the rule

constitutionally infirm. Petitioner's contentions to the contrary are disposed of

by Semler v. Oregon State Bd. of Dental Examiners, 294 US 608, 610 (1935).

There, the Supreme Court held that the plaintiff, a dentist, lacked

any ground for objection because the particular regulation is

limited to dentists and is not extended to other professional

classes. The State was not bound to deal alike with all these

classes, or to strike at all evils at the same time or in the same

way. It could deal with the different professions according to the

needs of the public in relation to each."

Id.; Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955).

Thus, under the lenient rational basis standard, physicians may be

regulated differently than other classes of healthcare professionals without

running afoul of the Equal Protection Clause. See Beaulieu v. Lewiston, 440

A.2d 334, 339 (Me. 1982) ('"the Equal Protection Clause does not require that a

State must choose between attacking every aspect of a problem or not

attacking the problem at all"'). Petitioner's attacks on the Competency Rule fail.

II. Petitioner's Challenges to the Board Proceedings and Nonrenewal

Decision.

Petitioner next argues that even if the Competency Rule is facially valid,

relief is still warranted because the Board committed multiple errors during the

agency proceedings below. The court concludes that the Boar~ acted lawfully

and appropriately. Contrary to Petitioner's suggestions, the Board did not

employ an unconstitutional presumption or apply the Competency Rule in an

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unlawfully retroactive manner. Nor did it err when it limited the scope of the

hearing and refused to entertain Petitioner's facial challenges to the

Competency Rule.

Unconstitutional Presumption. Petitioner argues that the procedure

followed by the Board violated his due process rights because it created a

"presumption of incompetence" that he was required to rebut. According to

Petitioner, the State should bear the burden of affirmatively proving that a

licensee is incompetent if it wishes to deny a renewal application.

"Laws establishing presumptions have been held to violate the due

process clause of the United States Constitution where the presumption is

irrebuttable and not necessarily true in fact and the State has reasonable

alternatives in making the determination." Vlandis v. Kline, 412 U.S. 441,451

(1973). That is not the case here. To the extent the Board applied the

Competency Rule so as to create a presumption of nonrenewal for licensees out

of practice for more than two years, that presumption was expressly rebuttable.

See 02-373 C.M.R. ch. 1, § 9(1)(A) (requiring licensees subject to the

competency rule to "adequately demonstrate[]" continued competency to the

Board). Moreover, while Petitioner may have been required to produce some

evidence of continuing clinical competency, the ultimate burden of proof

remained with the State to demonstrate one of the statutory grounds for

nonrenewal set forth in 32 M.R.S. § 3282-A(2); see also In re Child ofRyan F.,

2020 ME 21, iJ 26, 224 A.3d 1051.

Petitioner suggests that it was "impossible" for him to rebut the

presumption and demonstrate his competency at the hearing before the Board.

The court observes, however, that Petitioner made little, if any, effort to make

such a showing. And when asked by a Board member whether he would be

willing to undergo an independent assessment of his clinical knowledge,

Petitioner answered in the negative, describing the proposal as "absolutely

ridiculous." A.R. 18-19. Given these circumstances, the court is not convinced

that a due process violation occurred.

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Retroactivity. Next, Petitioner argues that the Board retroactively applied

the Competency Rule to his renewal application in violation of his

constitutional rights. While it is true that the government has "no

constitutional power to enact retrospective laws which impair vested rights,"

NECEC Transmission LLC v. Bureau ofParks & Lands, 2022 ME 48, ,r 39, 281

A.3d 618, the court concludes that Petitioner's constitutional rights were not

violated here.

The Board acted properly by applying the Competency Rule as a

condition for issuing Petitioner his renewed license and relying on the laws in

effect at the time Petitioner submitted his renewal application. Petitioner does

not hold a legitimate claim of entitlement to the continued re-issuance of his

license under the regulations in existence at the time he received his initial

license. There is no statutory suggestion that licensing criteria will remain

static. To the contrary, medical licenses expire and must be renewed every two

years, thereby subjecting licem,ees to biennial scrutiny under the laws then­

existing. 32 M.R.S. § 3280-A.

Furthermore, as the Board points out, courts elsewhere have rejected

similar challenges to laws that have changed professional licensure

requirements. E.g., Ficarra v. Dep't ofRegulatory Agencies, Div. ofIns., 849 P.2d

6, 19-22 (Colo. 1993); Brown v. McGarr, 774 F.2d 777, 782-85 (7th Cir. 1985).

These cases recognize that private interests in a professional license will

sometimes yield to licensure laws-like the Competency Rule-that are

rationally related to protecting public health and safety. Ficarra, 849 P.2d at

21-22; Brown, 774 F.2d at 782-85.

Scope of the Hearing. Petitioner further takes issue with the Hearing

Officer's determination that his procedural and substantive challenges to the

Competency Rule were beyond the scope of the Board hearing. The court

rejects this argument as the Board lacked the authority to strike the rule down

as facially invalid. The Board is a creation of statute, and its jurisdiction is

limited. See 32 M.R.S. § 3269. The APA, meanwhile, expressly sets forth the

avenue by which an aggrieved person may challenge the facial validity of a rule:

14

.

Judicial review pursuant to section 8058. See 5 M.R.S. § 8058 (allowing

aggrieved persons to bring pre- and post-enforcement challenges to agency

rules); see also Conservation Law Found. v. Dep't ofEnvtl. Prat., 2003 ME 62, ,r

20, 823 A.2d 551.

Moreover, many of Petitioner's challenges to the rule are constitutional

in nature. And as the Supreme Court has observed: "Constitutional questions

obviously are unsuited to resolution in administrative hearing procedures."

Califano v. Sanders, 430 U.S. 99, 109 (1977); accord Colo. Dep't of Pub. Health

& Env't v. Bethell, 60 P.3d 779, 785 (Colo. App. 2002) ("administrative agencies

lack jurisdiction to decide the constitutionality of statutes or regulations").

Thus, the agency appropriately declined to entertain Petitioner's facial

challenges to the rule.

Finally, the court notes that Petitioner has raised numerous additional

challenges to the Competency Rule and the Board proceedings. The court has

considered these arguments and finds them unpersuasive. The court sees no

basis for invalidating the rule or disturbing the decision of the Board.

CONCLUSION

The entry is: The Competency Rule, see 02-373 C.M.R. ch. 1, § 9, is valid

and the Board's decision denying Petitioner's license renewal application is

affirmed.

Dated: January 25, 2023

Deborah P. Cashman

Justice, Maine Superior Court

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