                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                   WENDI CLECKNER, Plaintiff/Appellant,

                                         v.

 ARIZONA DEPARTMENT OF HEALTH SERVICES, Defendant/Appellee.

                              No. 1 CA-CV 17-0229
                                FILED 5-10-2018


            Appeal from the Superior Court in Maricopa County
                         No. LC2016-000185-001
                  The Honorable Patricia A. Starr, Judge

                                   AFFIRMED


                                    COUNSEL

Law Office of Julie Gunnigle, PLLC, Scottsdale
By Julie R. Gunnigle
Counsel for Plaintiff/Appellant

Arizona Attorney General’s Office, Phoenix
By Patricia C. LaMagna, Jo-Ann Handy, Aubrey Joy Corcoran
Counsel for Defendant/Appellee
                           CLECKNER v. ADHS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Jennifer B. Campbell
joined.


M c M U R D I E, Judge:

¶1            Wendi Lee Cleckner appeals from the superior court’s
decision to affirm the Department of Health Services’ suspension of her
license to practice midwifery for one year and to assess a $100 civil penalty.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Cleckner is a midwife licensed by the Arizona Department of
Health Services (“Department”) and, at the time of these proceedings, was
the president of the Arizona Association of Midwives. 1 In July 2015, the
Department alleged Cleckner violated administrative rules and statutes
regulating her professional practice when she failed to schedule a required
syphilis test for her client (“Client 1”), and when she continued providing
services to a client who developed “[a] postpartum hemorrhage of greater
than 500 milliliters in the current pregnancy” (“Client 2”).

¶3            On April 18, 2013, Client 1 declined, for religious and
monetary reasons, to complete a standard prenatal panel of blood tests,
including a test for syphilis. Client 1 declined lab testing in writing on a
form created by Cleckner, which stated “[y]ou may choose to decline these
labs,” including the test for syphilis. The Department’s standard published
form would not have allowed a client to waive syphilis testing. Cleckner


1      A midwife is “a person who delivers a baby or provides health care
related to pregnancy, labor, delivery and postpartum care of the mother
and her infant.” Ariz. Rev. Stat. (“A.R.S.”) § 36-751(3). “[N]o person may act
as a midwife without being licensed,” with statutorily defined exceptions.
A.R.S. § 36-752(A); see also A.R.S. § 36-754. A midwife is required to have at
least a high school diploma or a equivalency diploma, basic training in
adult and neonatal cardiopulmonary resuscitation, and certification as a
professional midwife by the North American Registry of Midwives. See
A.R.S. § 36-755; Ariz. Admin. Code (“A.A.C.”) R9-16-102(A)(4)–(6).



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                            Decision of the Court

submitted the signed form to the Department as part of her Midwife Report
for Client 1. No syphilis test was performed within Client 1’s 28-week
gestation, or otherwise.

¶4            Cleckner testified she explained to Client 1 the risks syphilis
infection posed to the infant, and the importance of knowing one’s STD
status, but that she did not discuss that the syphilis test is a non-waivable
requirement for Client 1 to remain in Cleckner’s care. Cleckner accepted
Client 1’s rejection of the test and believed the rules enabled a client to
refuse syphilis testing. Thomas Salow, a branch chief of the Department’s
Bureau of Special Licensing, testified that syphilis testing was never
waivable, even under the midwifery rules in effect prior to July 2013.

¶5             Client 2 experienced a postpartum hemorrhage of greater
than 500 milliliters (Cleckner’s notes indicate 750 milliliters of blood loss)
during the delivery of her child, for which Cleckner administered “1ml of
Pitocin” and called Emergency Medical Services (“EMS”). 2 By the time EMS
arrived, Client 2 had stopped bleeding and exhibited stable vital signs.
Alexander Myers, a paramedic with EMS, testified upon arrival his team
was advised the bleeding “had resided” and that Client 2 “asked not to be
transported or evaluated at that time.” EMS never evaluated Client 2 or
created a refusal form because a “medical emergency didn’t seem to exist.”
Cleckner, Client 2, and Mona Ziems, Cleckner’s apprentice assisting during
Client 2’s delivery, testified that EMS assessed vital signs. Client 2 could not
remember, however, whether she refused transportation directly to EMS,
but she testified she did “not want[] to transfer . . . after the bleeding had
stopped.” Cleckner provided Client 2 with Cleckner’s own Transfer of Care
Refusal Form, which Client 2 signed. Cleckner testified she did not discuss
with Client 2 the requirement for a midwife to transfer care to a different
provider after a hemorrhage over 500 milliliters occurs in a pregnancy
because it would be “borderline coercion to put that in that perceptive [sic]
because they still have bodily autonomy.” Client 2’s testimony
demonstrated that Cleckner failed to explain to her the dangers associated
with such a hemorrhage.

¶6            Hugh Miller, M.D., a board-certified obstetrician gynecologist
with additional specialization in maternal fetal medicine and a high-risk
obstetrical practice, testified that Pitocin, the antihemorrhagic Cleckner

2      Cleckner testified she called EMS because the rules prescribe so after
Pitocin is administered, not because her client suffered 750 milliliters of
blood loss.



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                            Decision of the Court

administered, has a short half-life and can wear off, risking another bleed.
In his opinion, postpartum hemorrhage is dangerous because “you don’t
know what your end game is. I mean you don’t know when it’s going to
stop. . . . [T]he amount of blood that a woman can lose can be massive. It
can happen very quickly.”

¶7              Cleckner continued providing midwifery services to Client 2
after the client refused to be transferred. Sarita Bennett, D.O., an osteopathic
physician and a home-birth midwife practicing in West Virginia, testified
on behalf of Cleckner that, although Cleckner attempted to transfer care,
Client 2 did not qualify for an emergency transfer, so it was a “good idea”
for Cleckner to remain with Client 2 for at least three or four hours after
stabilization. 3 However, Bennett admitted she was not familiar with
Arizona laws and regulations regarding transferring care.

¶8            Two hearings were conducted before an administrative law
judge (“ALJ”), who issued a decision on January 27, 2016, suspending
Cleckner’s license to practice midwifery for one year, and accessing a civil
penalty of $100. Cleckner appealed the ALJ’s decision to the Department’s
Director, who affirmed the decision on February 18, 2016. The superior
court affirmed the Director’s decision on February 8, 2017, finding the
Director did not abuse her discretion by sanctioning Cleckner. The court
also ruled Cleckner lacked standing to assert the constitutional claims of
her clients. Cleckner timely appealed. We have jurisdiction pursuant to
Arizona     Revised     Statutes  (“A.R.S.”)    sections    12-120.21(A)(1)
and -2101(A)(1).

                               DISCUSSION

¶9            Cleckner argues the superior court erred by affirming the
administrative agency decision because: (1) she has standing to assert the
constitutional claims of her clients; (2) the requirement for midwives to
ensure their clients have been tested for syphilis, Arizona Administrative
Code (“A.A.C.”) R9-16-108(I)(3), is unconstitutional when the client
provides informed consent opting out of such testing; (3) the Department’s
interpretation of A.A.C. R9-16-111(B)(25) conflicts with A.R.S.
§ 36-756(A)(3), creating an unreasonable and absurd construction of the




3     Client 2’s medical condition remained stable, and she did not
experience any further bleeding.



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                           CLECKNER v. ADHS
                           Decision of the Court

law; and (4) the superior court applied an incorrect standard of review of
Cleckner’s license suspension.

¶10           In reviewing the superior court’s decision affirming an
administrative order, “[w]e engage in the same process as the superior
court,” which is to assess “whether the agency’s action was arbitrary,
capricious, or an abuse of discretion.” Gaveck v. Ariz. State Bd. of Podiatry
Exam’rs, 222 Ariz. 433, 436, ¶¶ 11–12 (App. 2009); see A.R.S. § 12-910(E)
(“The court shall affirm the agency action unless the court concludes that
the agency’s action is contrary to law, is not supported by substantial
evidence, is arbitrary and capricious or is an abuse of discretion.”). “We are
not bound by an agency’s or the superior court’s legal conclusions,” Gaveck,
222 Ariz. at 436, ¶ 12, and whether substantial evidence supported the
agency’s decision “is a question of law for our independent determination.”
Id. We must, however, “defer to the agency’s factual findings and affirm
them if supported by substantial evidence.” Id. at ¶ 11.

¶11           We also defer to “agencies’ interpretations of legislation they
are charged with implementing,” but remain “the final authority on critical
questions of statutory construction.” Robbins v. ADES, 232 Ariz. 21, 23, ¶ 7
(App. 2013) (quoting U.S. Parking Sys. v. City of Phoenix, 160 Ariz. 210, 211
(App. 1989)). We refuse to give weight to an agency’s interpretation of a
statute within its expertise when the legislature has explicitly addressed the
matter. Stambaugh v. Killian, 242 Ariz. 508, 512, ¶ 21 (2017). Clear and
unambiguous statutory language does not require us to resort to other
methods of statutory interpretation. Haag v. Steinle, 227 Ariz. 212, 214, ¶ 9
(App. 2011). “Rules and statutes should be harmonized wherever possible
and read in conjunction with each other.” State v. Hansen, 215 Ariz. 287, 289,
¶ 7 (2007) (quotation omitted).

A.     The Department Did Not Abuse Its Discretion by Suspending
       Cleckner’s License to Practice Midwifery for One Year.

¶12            Cleckner argues she did not fail to transfer care for Client 2
because Client 2 “no longer had a postpartum hemorrhage” and she “was
entitled to resume care” under A.A.C. R9-16-111(B)(25). She further argues
the Department’s interpretation of A.A.C. R9-16-111(B)(25) conflicts with
A.R.S. § 36-756(A)(3) because the Department’s interpretation “require[s] a
midwife to unilaterally suspend all care upon the occurrence of a
postpartum hemorrhage of greater than 500 ml, [which] cause[s] the
midwife to engage in conduct detrimental to the [health or safety of the]
mother and child,” an unreasonable and absurd construction of the law.
Cleckner further argues a midwife only needs to “initiate” a transfer of care,


                                      5
                            CLECKNER v. ADHS
                            Decision of the Court

invoking A.A.C. R9-16-111(E)(2), but that the transfer does not need to be
completed.

¶13           Licensed midwives are required to comply with the
midwifery licensing and regulation statutes, A.R.S. §§ 36-751 to -760, and
the Department’s rules of occupational licensing of midwifery, A.A.C.
§§ R9-16-101 to -117 (“midwifery rules”). According to § 36-756, “[t]he
director may deny, suspend or revoke the license of any midwife who . . .
[i]ndulges in conduct or a practice detrimental to the health or safety of the
mother and child.” A.R.S. § 36-756(A)(3) (emphasis added). The midwifery
rules proscribe that “[a] midwife shall not . . . continue midwifery services
for a client who has or develops . . . [a] postpartum hemorrhage of greater
than 500 milliliters in the current pregnancy[.]” A.A.C. R9-16-111(B)(25)
(emphasis added). 4 Upon the occurrence of such a hemorrhage, a midwife
is required to transfer care, which the regulations define as an “assum[ption
of] responsibility for the direct care of the client” by “an emergency medical
services provider, a certified nurse midwife, a hospital, or a physician.”
A.A.C. R9-16-101(47). 5

¶14                On July 20, 2014, Cleckner determined Client 2 lost
approximately 750 milliliters of blood during the home delivery of her
child. When a hemorrhage of that magnitude happened, Cleckner was
obligated to transfer care and not “continue” providing midwifery services
to Client 2, regardless of the client’s wishes or her seemingly improved
condition. See A.A.C. R9-16-111(B)(25). The language of the rule is
unambiguous. Upon a postpartum hemorrhage of greater than 500
milliliters, a midwife “shall not . . . continue” providing midwifery services.
See A.A.C. R9-16-111(B)(25); Haag, 227 Ariz. at 214, ¶ 9. Cleckner was
required to pre-arrange a plan with another provider should a
care-preventing situation develop. See A.A.C. R9-16-111(E)(2) (if a client has
a postpartum hemorrhage of greater than 500 milliliters, “a midwife shall
. . . [i]nitiate transfer of care”). Although Cleckner argues “initiate” does not
include the completion of transfer, the midwifery rules, when read

4      The rule effective prior to October 1, 2013, encompassed the same
requirement, including the necessity to “immediately transfer care.” See 19
Ariz. Admin. Reg. 1800, 1832 (eff. Oct. 1, 2013) (R9-16-108(A)(20)).

5      The rule effective prior to October 1, 2013, stated “’[t]ransfer of care’
means that the midwife refers the care of the client to a medical facility or
physician who then assumes responsibility for the direct care of the client.”
19 Ariz. Admin. Reg. 1800, 1809 (eff. Oct. 1, 2013) (R9-16-101(41)).



                                       6
                           CLECKNER v. ADHS
                           Decision of the Court

together, see Hansen, 215 Ariz. at 289, ¶ 7, do not provide for an alternative
construction because “transfer of care” is also a defined term requiring a
midwife to refer the care of a client to one of the enumerated providers
“who then assumes responsibility for the direct care of the client.” A.A.C
R9-16-101(47) (emphasis added); see also Gutierrez v. Indus. Comm’n, 226
Ariz. 395, 396–97, ¶¶ 6–9 (2011) (interpretation should give a statute a fair
and sensible meaning).

¶15            Cleckner failed to transfer care of Client 2 because, as she
argues, Client 2 refused transfer to EMS, rendering a contingency plan an
“abstract solution,” and Cleckner did not contact any other provider
pursuant to A.A.C. R9-16-101(47). Cleckner not only failed to explain to
Client 2 that the midwifery rules required Cleckner to transfer care once the
hemorrhage occurred, she also failed to explain the risks associated with
the hemorrhage and Pitocin’s short half-life for Client 2’s fully informed
decision to remain at home. Cleckner, thus, endangered Client 2’s health or
safety. See A.R.S. § 36-756(A)(3). 6

¶16            Because substantial evidence supports the ALJ’s decision
adopted by the Director, and affirmed by the superior court, we hold the
Department did not abuse its discretion by suspending Cleckner’s license
for one year. See A.R.S. § 12-910(E); Gaveck, 222 Ariz. at 436, ¶¶ 11–12; see
also A.R.S. § 36-756(A)(1) and (3), (C) (once the Director finds grounds for
suspension, he or she may suspend a license “for any period of time he [or
she] deems appropriate”).




6      Cleckner argues she could have resumed care upon EMS’s departure
because Client 2 “no longer had a postpartum hemorrhage” and because
EMS accepted care of Client 2. Cleckner’s own testimony, however, belies
her argument EMS accepted care for any period of time. Dr. Miller’s
testimony refuted Cleckner’s assessment the hemorrhage subsided when
he described the indeterminate nature of postpartum hemorrhage’s finality.
See Ortega v. Indus. Comm’n, 121 Ariz. 554, 557 (App. 1979) (“[I]t is the
hearing officer’s obligation to resolve conflicting medical evidence, and his
resolution will not be disturbed unless it is wholly unreasonable.”). Most
importantly, the midwifery rules do not allow a midwife to resume care
once the hemorrhage had occurred, and mandate the necessity of
transferring care. See A.R.S. § 36-756(A)(3); A.A.C. R9-16-111(B)(25); A.A.C
R9-16-101(47).



                                      7
                            CLECKNER v. ADHS
                            Decision of the Court

B.     The Department Did Not Abuse Its Discretion by Imposing a $100
       Civil Penalty.

¶17          Cleckner argues the requirement for midwives to ensure their
clients have been tested for syphilis is unconstitutional when the client
provides informed consent to opt-out of such testing.

¶18            Any person “permitted by law to attend pregnant women but
not permitted to take blood samples shall cause a sample of the blood of
each pregnant woman attended by him [or her] to be taken . . . [and] shall
have the sample submitted to an approved laboratory for a standard
serological test for syphilis.” A.R.S. § 36-693(B) (emphasis added). By
statute, all pregnant women attended to by a health care provider, see
§ 36-693, are required to be tested for syphilis, a requirement also
recognized by the Department’s regulations of midwifery. See A.A.C.
R9-16-108(I)(1)(f) (during the prenatal period, the midwife shall schedule or
arrange a client to be tested for “[s]yphilis as required in A.R.S. § 36-693”). 7
The regulation of midwifery further proscribes that “[d]uring the prenatal
period, the midwife shall: . . . except as provided in R9-16-110, ensure that the
tests in section (I)(1) are completed by the client within 28 weeks gestation.”
A.A.C. R9-16-108(I)(3) (emphasis added). The midwifery rule, A.A.C.
R9-16-110 (assertion to decline required tests), which prescribes a
procedure for a client to decline testing, specifically excludes A.A.C.
R9-16-108(I)(1)(f) (statutory requirement for a syphilis test) from any
waiver.

¶19            Cleckner, however, created her own form that stated “[y]ou
may choose to decline these labs,” including the test for syphilis, which
Client 1 signed. Cleckner’s form was non-compliant with state law as
Cleckner was required to inform Client 1 the syphilis testing was
mandatory. See A.R.S. § 36-693(B); A.A.C. R9-16-108(I)(1)(f). Cleckner
testified she discussed testing with Client 1, but not the necessity for the
syphilis test. Cleckner also accepted Client 1’s rejection of that test and
believed the rules, then in effect, enabled her clients to refuse syphilis




7      The rule effective prior to October 1, 2013, included the same
requirement. See 19 Ariz. Admin. Reg. 1800, 1826 (eff. Oct. 1, 2013)
(R9-16-106(E)(1)(d)).



                                       8
                            CLECKNER v. ADHS
                            Decision of the Court

testing. 8 Salow testified for the Department that syphilis testing was never
waivable, even under the midwifery rules in effect prior to July 2013.

¶20            Cleckner argues Client 1 had a constitutionally guaranteed
“bodily autonomy” and an “ability to make informed choices about her
health care or refuse care altogether.” Assuming, without deciding, that
Client 1 had such a right, see Rasmussen by Mitchell v. Fleming, 154 Ariz. 207,
214–15 (1987) (“[t]he right to refuse medical treatment is a personal right
sufficiently ‘fundamental’ or ‘implicit in the concept of ordered liberty’”
under the United States Constitution and “the Arizona Constitution also
provides for a right to refuse medical treatment”) (quoting Paul v. Davis,
424 U.S. 693, 713 (1976)), that right does not determine the scope of a
midwife’s practice; the midwifery rules do. See A.R.S. §§ 36-751 to -760;
A.A.C. §§ R9-16-101 to -117. 9 We thus reject Cleckner’s argument the
Department unconstitutionally limited the scope of midwifery only to
clients who have tested for syphilis. See Lange-Kessler v. Dep’t of Educ. of N.Y.,
109 F.3d 137, 141–42 (2d Cir. 1997) (no constitutional right to choose a
direct-entry midwife to assist with childbirth); Sammon v. N.J. Bd. of Med.

8     Cleckner justified Client 1’s declination for monetary and religious
reasons. Syphilis testing, however, “shall be made by the state laboratory
without charge.” A.R.S. § 36-693(C). Financial concerns were not at issue,
and no religious freedom arguments were advanced by either party.

9       Cleckner argues she has standing to assert the rights of Clients 1 and
2 to refuse treatment or testing because otherwise she “must violate her
client’s rights in order to avoid being fined.” We do not, however, reach the
issue of Cleckner’s standing to raise the applicable statutes’ and rules’
constitutionality because we first review a sanction’s reasonableness before
we reach constitutional grounds as “[i]t is sound judicial policy to avoid
deciding a case on constitutional grounds if there are nonconstitutional
grounds” available. See Stoddard v. Donahoe, 224 Ariz. 152, 157, ¶ 23 (App.
2010) (alteration in original) (quoting Goodman v. Samaritan Health Sys., 195
Ariz. 502, 505, ¶ 11 (App. 1999) (because the applicability of an immunity
statute, which could have resolved the case on nonconstitutional grounds,
was not before the Goodman court, the court addressed constitutional
arguments)). Here, the Department acted within its discretion when it
sanctioned Cleckner as she was not free to act outside of the scope of her
license, even if requested to do so by a client. Moreover, assuming, without
deciding, Cleckner had standing to raise her Clients’ rights, as discussed
above neither Clients’ decision to reject treatment or testing was fully
informed.



                                        9
                           CLECKNER v. ADHS
                           Decision of the Court

Exam’rs, 66 F.3d 639, 647 (3d Cir. 1995) (“[P]arents have no constitutional
right to their choice of a health care provider who does not meet quality
control standards that a legislator might reasonably conceive to be
desirable.”).

¶21            Even assuming a client has the “right” to decline testing for
syphilis, Cleckner could not continue care of that individual without
violating the scope of midwifery practice controlled by state statute and
regulations. See A.R.S. § 36-693(B); A.A.C. R9-16-108(I)(3). Therefore, we
affirm the superior court’s ruling because Cleckner failed to practice within
the scope of her license and the Department was authorized to assess a $100
civil penalty against her. See A.R.S. 36-756(D) (“[T]he director may assess a
civil penalty of not more than one hundred dollars for each violation of this
article or a rule adopted pursuant to this article . . . . Each day that a
violation continues constitutes a separate offense.”).

C.    The Superior Court’s Application of the Incorrect Standard of
      Review is Harmless in this Case because We Review the Record
      De Novo.

¶22           Cleckner argues the superior court applied an incorrect
standard of review to Cleckner’s license suspension. We agree.

¶23           In its decision, the superior court applied the
shock-one’s-sense-of-fairness standard of review of the Director’s
discretionary decision, citing to Schillerstrom v. State, 180 Ariz. 468, 471
(App. 1994) (“[A]n administrative penalty is excessive only if it is so
disproportionate to the offense as to shock one’s sense of fairness.”). We
have previously determined “the ‘shocking’ inquiry is an imprecise attempt
to define the ‘arbitrary and capricious’ or ‘abuse of discretion’ standard in
§ 12-910(E).” Coplan v. Ariz. State Bd. of Appraisal, 222 Ariz. 599, 602, ¶ 8
(App. 2009) (quoting A.R.S. § 12-910(E)). Our supreme court has expressly
departed from applying the “shocking” standard for administrative agency
reviews. See Maricopa County Sheriff’s Office v. Maricopa County Emp. Merit
Sys. Comm’n, 211 Ariz. 219, 223, ¶¶ 20–21 (2005).

¶24           Having determined that the superior court applied an
insufficiently deferential standard of review, we now proceed to
independently review the Director’s decision. See Coplan, 222 Ariz. at 602,
¶ 9. In reviewing an appeal from the superior court affirming an
administrative decision, “[w]e engage in the same process as the superior
court,” to evaluate agency’s discretionary rulings. Gaveck, 222 Ariz. at 436,
¶¶ 11–12; see A.R.S. § 12-910(E). Based on our independent review, we have



                                     10
                            CLECKNER v. ADHS
                            Decision of the Court

determined the Department’s decision was supported by substantial
evidence, and the sanctions imposed were consistent with the Department’s
statutory authority. See A.R.S. § 36-756(A)(1) and (3), (C). The Department’s
decision was not contrary to law, arbitrary or capricious, or an abuse of
discretion. See Coplan, 222 Ariz. at 603, ¶ 12; see also Taylor v. Ariz. Law Enf’t
Merit Sys. Council, 152 Ariz. 200, 207 (App. 1986) (“The determination of the
penalty imposed by an administrative body will not be disturbed unless
there has been a clear abuse of discretion.”). Accordingly, we affirm the
Department’s decision.

II.           Attorney’s Fees on Appeal.

¶25           Cleckner requested we award her attorney’s fees pursuant to
A.R.S § 12-348(A)(2) and Arizona Rule of Civil Appellate Procedure 21.
Section 12-348 authorizes an award of costs, fees, and other expenses to a
party, other than this state, that prevails by an adjudication on the merits in
“[a] court proceeding to review a state agency decision pursuant to . . . [a]
statute authorizing judicial review of agency . . . decisions.” A.R.S
§ 12-348(A)(2). Because Cleckner did not prevail on the merits, we decline
to award her costs, fees, and other expenses.

                                CONCLUSION

¶26           For the reasons stated above, we affirm the superior court’s
ruling affirming the Department’s decision to suspend Cleckner’s license
for one year and assess a $100 civil penalty. The stay of that suspension,
previously entered by the court, is lifted.




                           AMY M. WOOD • Clerk of the Court
                            FILED: AA




                                         11
