# Denier v. State Board of Medicine, Bureau of Professional & Occupational Affairs

> Commonwealth Court of Pennsylvania · October 17, 1996 · 683 A.2d 949

URL: https://www.frixlaw.com/law-library/cases/4953209

## Case

- **Full name:** James M. DENIER, M.D. v. STATE BOARD OF MEDICINE, BUREAU OF PROFESSIONAL AND OCCUPATIONAL AFFAIRS
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** October 17, 1996
- **Citations:** 683 A.2d 949; 1996 Pa. Commw. LEXIS 434
- **Precedential status:** Published
- **Opinion:** Dissent by Friedman
- **Judges:** Colins, Doyle, Flaherty, Friedman, Kelley, Pellegrini, Smith
- **Cited by:** 10 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4953209

## How later opinions describe it (automated extraction)

- holding that, where the board was aware of the licensee’s court- martial conviction when it ministerially renewed his license, the renewal did not estop it from later instituting proceedings to suspend or revoke his license eight months later
- holding, in the context of an automatic license suspension, “[a]n evidentiary hearing is not required by due process when no facts are at issue”

## Opinion text

FRIEDMAN, Judge,
dissenting.
I respectfully dissent. Because I believe that a person convicted of wrongful distribution of cocaine under section 112a of the Uniform Code of Military Justice (UCMJ) 1 could be convicted in this Commonwealth under either section 13(a)(13) or section 13(a)(14) of The Controlled Substance, Drug, Device and Cosmetic Act (Drug Act), 2 and because I believe that the State Board of Medicine, Bureau of Professional and Occupational Affairs (Board) erred in failing to hold a hearing to determine whether Denier’s conviction for wrongful distribution of cocaine would be a felony under section 13(a)(14) of the Drug Act if he had committed the offense in this Commonwealth, I would reverse. 3
In affirming the Board’s decision to automatically suspend Denier’s professional license under section 40(b) of the Medical Practice Act (MPA) without a hearing, the Majority states that “the Board was not required to look any further” than “the facts as apparent from the court-martial conviction itself.” (Majority op. at 954.) However, it is obvious here that, in making its decision, the Board never considered any facts from the courtmartial conviction. 4 The Board simply *956 compared the language of section 112a of the UCMJ and section 13(a)(14) of the Drug Act and concluded that, if Denier had committed his offense in this Commonwealth, he would have been convicted of a felony. (Board’s Notice and Order of Automatic Suspension; R.R. at 9a-12a.)
Moreover, because the Board did not hold a hearing to take evidence or even consider Denier’s statements to the Board in his license renewal application, the Board never made any findings of fact. 5 To the extent that the Majority has reviewed the augmented record before this court, has resolved conflicts in Denier’s statements and has made credibility determinations, the Majority has improperly assumed the role of factfin-der. 6
Absent findings of fact from the Board which we can apply to sections 13 (a) (13) and 13(a)(14) of the Drug Act to determine which corresponds with Denier’s conviction under section 112a of the UCMJ, I believe that the only approach this court can take in reviewing the decision of the Board is to compare the elements of section 112a of the UCMJ with those of sections 13(a)(13) and 13(a)(14) of the Drug Act. Such an analysis shows that Denier’s conviction for wrongful distribution of cocaine under section 112a of the UCMJ could have been a conviction in this Commonwealth under either section 13(a)(13) or section 13(a)(14) of the Drug Act. Thus, the Board erred in automatically suspending Denier’s professional license under section 40(b) of the MPA.
Section 112a of the UCMJ provides: (1) a person subject to the UCMJ may not (2) wrongfully (3) distribute (4) cocaine (5) to any person. With respect to the first element. of the offense, those subject to the UCMJ are members of the military, including medical practitioners like Denier. See 10 U.S.C. § 802 . The third, fourth and fifth elements of the offense, taken together, forbid the delivery or transfer of cocaine to the possession of another person. Para. 37c(3) of the Manual for Courts-Martial (MCM), United States, 1984. Such a transfer is wrongful, the second element of the offense, unless: (1) done in conjunction with law enforcement activities; (2) done by authorized personnel in the performance of medical duties; or (3) done without knowledge of the contraband nature of the substance. Para. 37c(5) of the MCM.
Section 13(a)(14) of the Drug Act provides: 7 (1) a practitioner may not (2) wrong *957 fully (3) deliver (4) cocaine (5) to any person. With respect to the first element of the offense, a practitioner is anyone licensed to dispense or distribute a controlled substance. See 35 P.S. § 780-102. The third, fourth and fifth elements of the offense, taken together, forbid delivery or transfer of cocaine to the possession of another person. Such a transfer is wrongful, the second element of the offense, unless: (1) done in good faith; (2) in the course of one’s professional practice; (3) within the scope of the patient relationship; and (4) in accordance with treatment principles accepted by a responsible segment of the medical profession. It is apparent to me that each of these elements is either identical to, or included in, an element of section 112a: members of the military include physicians; the “distribution” of cocaine to a person is a type of “delivery;” and such delivery is wrongful unless done in the performance of medical duties, i.e., in the good faith treatment of patients according to accepted treatment principles. Thus, the offense for which Denier was convicted under section 112a of the UCMJ could be a conviction under section 13(a)(14) of the Drug Act.
Section 13(a)(13) of the Drug Act provides: (1) a practitioner may not (2) wrongfully (3) distribute (4) cocaine (5) to any person whom the practitioner knows, or has reason to know, is a drug dependent person. Distribution under section 13(a)(13) is wrongful unless done: (1) for the cure or treatment of some malady other than drug dependency; (2) at an approved clinic for the treatment of drag dependency; or (3) for up to fourteen days pending confirmed admission of the patient to a hospital or rehabilitation center. Once again, these elements are either identical to, or included in, an element of section 112a: members of the military include practitioners; the distribution of cocaine to any person includes distribution of cocaine to a person whom the practitioner knows, or has reason to know, is a drag dependent person; and such distribution is wrongful unless done in the performance of medical duties, i.e., in the treatment of drag dependency or some other malady. Thus, the offense for which Denier was convicted under section 112a of the UCMJ could also constitute a conviction under section 13(a)(13) of the Drag Act.
The critical distinction between the felony and misdemeanor sections of the Drag Act, as it relates to a conviction under section 112a of the UCMJ, is whether the practitioner knew, or had reason to know, that the recipient of the cocaine was a drag dependent person. 8 Here, if the recipient was a drag dependent person and Denier had knowledge of that fact, at worst, a jury could only properly convict Denier of violating section 13(a)(13) of the Drag Act, which is a misdemeanor. Unfortunately, the Board assumed that such facts were irrelevant and, thus, concluded that Denier committed a felony. I would not permit the Board to make such an assumption; it amounts to nothing more than guesswork.
*958 The Board can automatically suspend a license under section 40(b) of the MPA only for an offense which would be a felony if committed in Pennsylvania. Because the Board held no hearing and, thus, failed to consider evidence which, if believed, would support only a misdemeanor conviction under the Drug Act, the Board lacked substantial evidence here that Denier’s conviction under section 112a of the UCMJ would be a de facto felony if committed in Pennsylvania; thus, the Board exceeded its statutory authority in this case and erred as a matter of law in automatically suspending Denier’s license to practice medicine in Pennsylvania.
In doing so, the Board also deprived Denier, without due process, of a property interest in the renewal of his professional license and of a fundamental right to his reputation. Lyness v. State Board of Medicine, 529 Pa. 535 , 605 A.2d 1204 (1992); Pennsylvania Bar Association v. Commonwealth, 147 Pa.Cmwlth. 351 , 607 A.2d 850 (1992). The government, even in its efforts to protect the public, through the regulation of licensed professionals, may not trammel the fundamental rights of its citizens without appropriate attention to constitutional protections.
Accordingly, I would reverse.
COLINS, P.J., and KELLEY, J., join in this dissent.
. Section 112a of the UCMJ, 10 U.S.C. § 912a, provides in pertinent part as follows:
(a) Any person subject to this chapter who wrongfully uses, possesses, manufactures, distributes, imports ..., exports ..., or introduces into an installation ... a substance described in subsection (b) shall be punished as a court-martial may direct.
(b) The substances referred to in subsection (a) [include cocaine.]
The phrase "any person subject to this chapter” refers to persons subject to the UCMJ, i.e., military personnel. See 10 U.S.C. § 802 .
The Manual for Courts-Martial (MCM), United States, 1984, Part IV, para. 37c(3), states that the word "distribute” in section 112a of the UCMJ means "to deliver to the possession of another,” and the word "deliver” means "the actual, constructive, or attempted transfer of an item, whether or not there exists an agency relationship.”
The MCM, Part IV, para. 37c(5), provides that distribution of a controlled substance is not wrongful if: (1) done pursuant to legitimate law enforcement activities: (2) done by authorized personnel in the performance of medical duties; or (3) done without knowledge of the contraband nature of the substance.
. Section 13(a)(13) of the Drug Act, Act of April 14, 1972, P.L. 233, as amended, 35 P.S. § 780-113(a)(13), states that the following is prohibited:
(13) The sale, dispensing, distribution, prescription or gift by any practitioner otherwise authorized by law so to do of any controlled substance to any person known to such practitioner to be or whom such practitioner has reason to know is a drug dependent person, unless said drug is prescribed, administered, dispensed or given, for the cure or treatment of some malady other than drug dependency.... This clause shall not prohibit any practitioner from prescribing, distributing or dispensing any controlled substance for a period of time not to exceed fourteen days pending confirmed admission of the patient to a hospital or rehabilitation center.
Section 13(b) of the Drug Act, 35 P.S. § 780-113(b), provides that any person who violates any of the provisions of clause (13) of subsection (a) shall be guilty of a misdemeanor.
Section 13(a)(14) of the Drug Act, 35 P.S. § 780-113(a)(14), states that the following is prohibited:
(14) The administration, dispensing, delivery, gift or prescription of any controlled substance by any practitioner ... unless done (i) in good faith in the course of his professional practice;
(ii) within the scope of the patient relationship;
(iii) in accordance with treatment principles accepted by a responsible segment of the medical profession.
Section 13(f)(1) of the Drug Act, 35 P.S. § 780-113(f)(1), provides that any person who violates clause (14) of subsection (a) with respect to a Schedule I or II controlled substance, see 35 P.S. § 780-104, is guilty of a felony.
. Section 40(b) of the Medical Practice Act (MPA), 63 P.S. § 422.40(b) (emphasis added), states in pertinent part:
A license ... issued under this act shall automatically be suspended upon ... conviction of a felony under ... The Controlled Substance, Drug, Device and Cosmetic Act, or conviction of an offense under the laws of another jurisdiction, which, if committed in this Commonwealth, would be a felony under The Controlled Substance, Drug, Device and Cosmetic Act.
. When the Board certified to this court the entire record upon which the Board based its decision, that record included only the following: (1) the Board’s Petition for Automatic Suspen *956 sion, (2) the Charge Sheet, (3) the Report of Trial Result and (4) the Board's Notice and Order of Automatic Suspension. (Board’s letter of October 20, 1995.) Neither the Charge Sheet nor the Report of Trial Result, the only documents pertaining to Denier's court-martial, contain findings of fact with respect to those proceedings. (R.R. at 6a-8a.)
. After the Board certified the record to this court, Denier sought to augment the record. The Board did not object to inclusion of Denier's license renewal application and the attachments thereto pertaining to Denier’s court-martial conviction. (Stipulation to Augment Record, filed November 21, 1995).
. The Majority refers to portions of the augmented record to demonstrate that Denier did not know that the woman involved here was a drug dependent person. (Majority op. at 954.) However, the Majority may not choose which parts of the augmented record to accept or reject; that is the role of the factfinder, which, in this case, is the Board. Barran v. State Board of Medicine, 670 A.2d 765 (Pa.Cmwlth.1996). After a hearing, the Board might believe that Denier knew at the August 13, 1992 rendezvous that the woman was a drug dependent person. (R.R. at 22a-23a.)
.Section 102 of the Drug Act, 35 P.S. § 780-102 (emphasis added), defines the following relevant terms:
“Deliver” or “delivery” means the actual, constructive, or attempted transfer from one person to another of a controlled substance, other drug, device or cosmetic whether or not there is an agency relationship.
"Distribute” means to deliver other than by administering or dispensing a controlled substance, other drug, device or cosmetic.
“Drug dependent person” means a person who is using a drug, controlled substance or alcohol, and who is in a state of psychic or physical dependence, or both, arising from administration of that drug, controlled substance or alcohol on a continuing basis.
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"Practitioner” means: (i) a physician, osteopath, dentist, veterinarian, pharmacist, podiatrist, nurse, scientific investigator, or other person licensed, registered or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance, other drug or device in the course of *957 professional practice or research in the Commonwealth of Pennsylvania; (ii) a pharmacy, hospital, clinic or other institution licensed, registered, or otherwise permitted to distribute, dispense, conduct research with respect to or to administer a controlled substance, other drug or device in the course of professional practice or research in the Commonwealth of Pennsylvania.
. As noted, section 13(a)(14) generally prohibits practitioners from distributing cocaine to any person; a practitioner who violates section 13(a)(14) is subject to conviction for a felony offense. Section 13(a)(13), on the other hand, is more specific in prohibiting practitioners from distributing cocaine where the practitioners know, or have reason to know, that the recipient is a drug dependent person; a practitioner violating section 13(a)(13) is subject only to conviction of a misdemeanor. See Sections 1932 and 1933 of the Statutory Construction Act of 1972, 1 Pa.C.S. §§ 1932 and 1933.
I have reviewed the legislative history to try to understand the reasoning of the legislature in its grading of these offenses. I note that, prior to the 1974 amendments to the Drug Act, both sections 13(a)(13) and 13(a)(14) were classified as misdemeanors. It is apparent to me that, in 1974, the legislature elevated section 13(a)(14) to a felony out of concern for the harm that drug pushers bring to young people and their families by causing the "innocent” to become drug addicts. Moreover, the legislature recognized that drug dependent persons experience discomfort without drugs, 35 P.S. § 780-102, and, in fact, are driven to desperate measures by their addiction. Thus, practitioners who deliver drugs to such individuals are guilty only of a misdemean- or. See Legislative Journal, House, vol. 1 3960-65, 3974 (1974).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4953209. Public record. Not legal advice.