ALJDEC

00F-200135-DEN · Board of Dental Examiners · 2001-04-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 14, 2001. The record closed on April 2, 2001. APPEARANCES: Respondent James R. Foutz, D.D.S. appeared on his own behalf. Assistant Attorney General Marc Harris represented the Arizona State Board of Dental Examiners. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The question presented by this case is whether Respondent James R. Foutz, D.D.S. has engaged in unprofessional conduct under A.R.S. § 32- 1201(18)(w), and, if so, whether he is subject to disciplinary action pursuant to A.R.S. § 32-1263 and 32-1263.01. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT Respondent James R. Foutz, D.D.S. is the holder of License No. 2078 for the practice of dentistry in the State of Arizona. Dr. Foutz has practiced dentistry since 1975. The Arizona State Board of Dental Examiners (the “Board”) is the duly constituted authority for licensing and regulating the practice of dentistry in the State of Arizona.

On January 3, 2000, Dr. Foutz entered into a Stipulation Agreement with the Board in Case No. 99308 to resolve issues pertaining to Dr. Foutz’s addiction to controlled substances. As part of that Stipulation Agreement, Dr. Foutz consented to the entry by the Board of an Order (the “99308 Order”) that, among other things, (i) placed Dr. Foutz’s license to practice dentistry on probation for a period of five years, (ii) required Dr. Foutz to successfully participate in the Board’s Monitored Aftercare Treatment Program for substance abuse, and (iii) required Dr. Foutz to comply with “all statutes, rules and regularly and properly issued orders of the Board.” The 99308 Order ((18) specifically advised Dr. Foutz that failure to comply with the terms of the order could result in the imposition of disciplinary action, up to and including the revocation of his license to practice dentistry. On January 12, 2000, in Case No. 99097, the Board found that Dr. Foutz had engaged in unprofessional conduct in connection with dental treatment rendered to one of his patients. The Board entered an order (the “99097 Order”) that, among other things, (i) censured Dr. Foutz, (ii) required Dr. Foutz to pay restitution in the amount of $1,400.00, and (iii) required Dr. Foutz to attend 12 hours of continuing education in the area of Crown and Bridge. On January 19, 2000, the Board mailed a copy of the 99097 Order to Dr. Foutz by certified mail, return receipt requested. Dr. Foutz personally accepted receipt of the 99097 Order on January 21, 2000. The 99097 Order advised Dr. Foutz of his right to petition for a rehearing or review, and advised Dr. Foutz that upon the expiration of the time to exercise that right, the order would become final. Dr. Foutz did avail himself of his right to request rehearing or further review of the 99097 Order. The 99097 Order became final in February 2000. Dr. Foutz did not comply with either the restitution or continuing education requirements of the 99097 Order. At its March 31, 2000 meeting, the Board voted to open a complaint against Dr. Foutz for his noncompliance with the 99097 Order. The Board’s complaint against Dr. Foutz was referred for informal hearing. Dr. Foutz attended that hearing and acknowledged his noncompliance. Thereafter, on August 30, 2000, the Board entered an Order in Case No. 200135 (the “200135 Order”) that, among other things, (i) reiterated the Board’s previous orders that Dr. Foutz pay restitution and attend continuing education, (ii) required Dr. Foutz to complete 12 hours of community service, and (iii) assessed a $500.00 administrative penalty against Dr. Foutz. The Board mailed a copy of the 200135 Order to Dr. Foutz by certified mail, return receipt requested. An agent of Dr. Foutz’s accepted receipt of the 200135 Order on September 2, 2000. Dr. Foutz did not seek rehearing or review of the 200135 Order, which became final in October 2000. Dr. Foutz paid the $500.00 administrative penalty, but did not comply with the restitution, continuing education or community service requirements of the Board’s orders. Dr. Foutz’s continuing noncompliance led the Board to issue, on February 9, 2001, the complaint that gave rise to the instant hearing. To date, Dr. Foutz still has not complied with the restitution, continuing education or community service requirements of the Board’s orders. Based on Dr. Foutz’s pattern of noncompliance with the Board’s orders as detailed above, the Board requested that Dr. Foutz’s license be revoked. At hearing, Dr. Foutz did not dispute the issuance of the Board’s orders, or his failure to have complied with those orders. Dr. Foutz asserted that he defied the Board’s orders as a matter of principle in protest of what he felt had been inappropriate (but unspecified) action by the Board in connection with its investigation of the complaint that led to the entry of the 99097 Order. Dr. Foutz contended that he did not present a threat to the health, safety or welfare of the citizens of this State, and that revocation was therefore too harsh a penalty. CONCLUSIONS OF LAW In this proceeding, the Board bears the burden to prove, by a preponderance of the evidence, that Dr. Foutz engaged in unprofessional conduct pursuant to A.R.S. § 32-1201(18)(w), and that he is subject to disciplinary action pursuant to A.R.S. § 32-1263 and 32-1263.01. See A.A.C. R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes, on the evidence presented, that the Board sustained its burden of proof. Under A.R.S. § 32-1201(18)(w), a dentist engages in unprofessional conduct when he or she “[f]ail[s] to comply with a final board order, including an order of censure or probation.” The undisputed evidence demonstrated that Dr. Foutz failed to comply with two final orders issued by the Board, specifically, the 99097 Order and the 200135 Order. Such noncompliance constitutes unprofessional conduct under A.R.S. § 32-1201(18)(w). The Administrative Law Judge concludes that Dr. Foutz’s noncompliance is aggravated by the fact that both of the Board orders with which he failed to comply were, in part, reiterations of the terms of the 99308 Order. A.R.S. § 32-1263 provides, in pertinent part: The Board may invoke disciplinary action against any person licensed under this chapter for any of the following reasons:

1. Unprofessional conduct, as defined in section 32-1201.

Under the foregoing statute, Dr. Foutz is subject to disciplinary action because he engaged in unprofessional conduct under A.R.S. § 32- 1201(18)(w). A.R.S. § 32-1263.01 provides, in pertinent part: A. The Board may take any one or a combination of the following disciplinary actions against any person licensed under this chapter:

1. Revocation of license to practice.

The Administrative Law Judge concludes, upon consideration of the evidence, that disciplinary action is warranted and that license revocation, the discipline requested by the Board, is reasonable and should be adopted. The Administrative Law Judge concludes that license revocation is warranted because of Dr. Foutz’s pattern of repeated non-compliance with final Board orders. As part of the 99308 Order, Dr. Foutz specifically agreed to comply with “all statutes, rules and regularly and properly issued orders of the Board.” Dr. Foutz knew that failure to do so could result in the revocation of his license. Yet, following the entry of the 99308 Order, Dr. Foutz disregarded not one, but two Board orders. Dr. Foutz claimed that he disregarded the Board’s orders as a matter of principle. Even if this assertion is true, it is not a valid defense. If Dr. Foutz felt he had been treated unfairly by the Board, he should have directed his concerns to an impartial tribunal. Instead, he chose non- compliance, with the attendant consequences of which he was aware by virtue of the terms of the 99308 Order. Dr. Foutz asserted that revocation is too harsh a penalty because he does not pose any threat to the health, safety or welfare of the citizens of this State. The Administrative Law Judge disagrees. The statutes governing the practice of dentistry in the State of Arizona specifically identify a number of grounds upon which the Board is authorized to take disciplinary action against a practitioner’s license, including unprofessional conduct. The inclusion of unprofessional conduct as a ground for discipline indicates a legislative determination that persons who engage in unprofessional conduct pose a threat to the health, safety and welfare of the citizens of this State. By his actions, Dr. Foutz has demonstrated that he is either unable or unwilling to submit to regulation by the Board. Under these circumstances, the Administrative Law Judge concludes that Dr. Foutz’s license to practice dentistry should be revoked. RECOMMENDED ORDER The Administrative Law Judge recommends that the Executive Director of the Board enter an order revoking Dr. James R. Foutz’s license for the practice of dentistry in the State of Arizona.

Done this day, April 24, 2001.

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Julie Chapko, Executive Director Board of Dental Examiners ATTN: Kim Stern 5060 North 19th Avenue, Suite 406 Phoenix, AZ 85015

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826