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                                                                 New Mexico Compilation
                                                               Commission, Santa Fe, NM
                                                              '00'04- 13:59:39 2013.03.13

       IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

Opinion Number: 2013-NMCA-040

Filing Date: January 24, 2013

Docket No. 30,748

NEW MEXICO BOARD OF
DENTAL HEALTH CARE,

       Petitioner-Appellee,

v.

LILLIAN P. JAIME, D.M.D.,

       Respondent-Appellant.

APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
C. Shannon Bacon, District Judge

Gary K. King, Attorney General
Santa Fe, NM
Mary H. Smith, Assistant Attorney General
Albuquerque, NM

for Appellee

Paul Kennedy & Associates
Paul J. Kennedy
Arne R. Leonard
Albuquerque, NM

for Appellant

                                        OPINION

KENNEDY, Chief Judge.

{1}     Petitioner New Mexico Board of Dental Health Care (Board) petitioned this Court
for a writ of certiorari to the district court, arguing that the district court erred when it
overturned the Board’s decision to discipline Respondent Lillian Jaime, D.M.D. We granted
the petition to review the question of whether the district court’s decision was contrary to

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the Uniform Licensing Act (ULA), NMSA 1978, Sections 61-1-1 through -33 (1957, as
amended through 2003), insofar as the district court determined that the Board was required
to give deference to the report issued by the Board’s hearing officer. See Rule 12-
505(D)(2)(d)(ii) NMRA (providing that this Court may grant a petition for a writ of
certiorari if, among other reasons, the district court’s decision conflicts with a statute). As
we conclude that the district court’s decision was contrary to the terms of the ULA, we
reverse.

I.     BACKGROUND

{2}     After a patient of Jaime’s filed a complaint against her, the Board appointed a hearing
officer to take evidence on the complaint. The hearing officer issued a report to the Board,
finding no unprofessional conduct by Jaime and recommending that no disciplinary action
be taken. The Board reviewed the report and the evidence presented during the hearing and
reached the conclusion that the evidence did in fact demonstrate unprofessional conduct.
The Board ordered Jaime to pay a fine, complete three hours of continuing education in
ethics, and pay the costs of the administrative hearing. Jaime appealed to the district court,
and the district court set aside the Board’s decision. It concluded that the Board’s decision
was arbitrary and capricious in that it was improperly dismissive of the hearing officer’s
report. This conclusion had two bases. First, because the hearing officer was the one to take
testimony, it was the hearing officer who was in the best position to make determinations
involving the weight and credibility of the evidence. Second, to the degree that the evidence
gave rise to any conflicting inferences, it was the hearing officer who was in the best position
to resolve those inferences. The district court relied on In re Bristol, 2006-NMSC-041, 140
N.M. 317, 142 P.3d 905, and Atlixco Coalition v. Maggiore, 1998-NMCA-134, 125 N.M.
786, 965 P.2d 370, both of which involved administrative procedures not governed by the
ULA in reaching its conclusions. The Board petitioned this Court for discretionary review,
and we granted the petition.

II.    DISCUSSION

{3}     We review the question of whether the district court erred in its appellate capacity
by conducting the same review of the administrative order as did the district court. See Rio
Grande Chapter of Sierra Club v. N.M. Mining Comm’n, 2003-NMSC-005, ¶ 16, 133 N.M.
97, 61 P.3d 806 (stating that an appellate court reviewing a district court’s decision in its
appellate capacity will “conduct the same review of [the] administrative order as the district
court sitting in its appellate capacity, while at the same time determining whether the district
court erred in the first appeal”). That standard of review requires us to consider whether the
Board’s decision was arbitrary and capricious, not supported by substantial evidence, or
otherwise not in accordance with law. See § 61-1-17 (providing that a person entitled to a
hearing under the ULA may obtain review of an adverse board decision pursuant to NMSA
1978, Section 39-3-1.1 (1999), which grants district courts appellate jurisdiction to review
agency decisions); see also § 39-3-1.1(D) (stating that a district court may set aside, reverse,
or remand a board’s final order if it determines that “(1) the agency acted fraudulently,

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arbitrarily[,] or capriciously; (2) the final decision was not supported by substantial
evidence; or (3) the agency did not act in accordance with law”). In determining whether
there was substantial evidence to support the agency’s determination, we apply a whole
record review. Bass Enters. Prod. Co. v. Mosaic Potash Carlsbad Inc., 2010-NMCA-065,
¶ 28, 148 N.M. 516, 238 P.3d 885. “Under whole record review, evidence is viewed in a
light most favorable to upholding the agency’s determination, but favorable evidence is not
viewed in a vacuum that disregards contravening evidence.” Id. We do not defer to the
agency’s or the district court’s conclusions of law, which are reviewed de novo. See Rio
Grande Chapter of Sierra Club, 2003-NMSC-005, ¶ 17.

{4}      The ULA provides the procedures that a professional licensing board must follow
when initiating actions against a licensee. Hearings are conducted “either by the board or,
at the election of the board, by a hearing officer who may be a member or employee of the
board or any other person designated by the board in its discretion.” Section 61-1-7(A).
When a board appoints a hearing officer to preside over a hearing, the ULA specifies that
the hearing officer is required to submit a report to the board containing findings of fact. Id.
(providing that “[a] hearing officer shall, within thirty days after any hearing, submit to the
board a report setting forth his findings of fact”). There is no statutory basis for a hearing
officer to provide conclusions of law or to make a recommendation regarding discipline. A
board is not required to give deference to the hearing officer’s factual findings since, after
the hearing officer’s report is submitted to the board, it is the board that is charged with the
task of rendering a decision and providing the findings of fact and conclusions of law
underlying that decision. See § 61-1-13(A) (“After a hearing has been completed, the
members of the board shall proceed to consider the case and as soon as practicable shall
render their decision . . . . In cases in which the hearing is conducted by a hearing officer,
all members who were not present throughout the hearing shall familiarize themselves with
the record, including the hearing officer’s report, before participating in the decision.”); see
also § 61-1-16 (“The decision of the board shall contain findings of fact made by the board;
conclusions of law reached by the board; the order of the board based upon these findings
of fact and conclusions of law; and a statement informing the applicant or licensee of his
right to judicial review and the time within which such review must be sought.” (emphasis
added)). Thus, under the language of the ULA, it is clear that a board, and not any hearing
officer it appoints, is responsible for all findings and conclusions, as well as for the ultimate
decision regarding disciplinary action.

{5}     Our review of the ULA demonstrates that the district court erred in concluding that
the Board acted arbitrarily and capriciously when it failed to defer to the hearing officer’s
determination that Jaime’s conduct was not unprofessional and his recommendation that she
should not be disciplined. The Board followed all procedures required by the ULA. The
Board’s decision states that it reviewed the testimony, evidence, and exhibits presented to
the hearing officer. It then made factual findings that included citations to the portions of
the hearing transcript and the exhibits that supported those findings. A review of the hearing
transcript, when properly considered in the light most favorable to the Board’s decision,
provides substantial evidence to support these findings.

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{6}      Nothing in the ULA suggests that the Board was limited in its ability to reach a
different conclusion than did the hearing officer about whether or not the facts presented at
the hearing constituted unprofessional conduct. The ULA places the responsibility for
making both findings of fact with the Board as a whole, not with an individual hearing
officer. See § 61-1-13(A) (stating that it is a quorum of the board that renders a decision in
the case); § 61-1-16 (stating that the board’s decision must be based on its findings of fact).
Furthermore, the hearing officer is not permitted to make conclusions of law or
recommendations regarding disciplinary action. See § 61-1-7(A) (calling upon a hearing
officer only to make findings of fact). The board is a panel composed primarily of experts
in the field of dentistry. See NMSA 1978, § 61-5A-8(A) (2003).

       The board shall consist of five dentists, two dental hygienists[,] and two
       public members. The dentists shall be actively practicing and have been
       licensed practitioners and residents of New Mexico for a period of five years
       preceding the date of appointment. The dental hygienist members shall be
       members of the committee and shall be elected annually to sit on the board
       by those sitting on the committee. The appointed public members shall be
       residents of New Mexico and shall have no financial interest, direct or
       indirect, in the professions regulated in the Dental Health Care Act.

Id. The ULA expressly permits board members to use their “experience, technical
competence[,] and specialized knowledge” in evaluating the evidence before them. Section
61-1-11(C); see also Weiss v. N.M. Bd. of Dentistry, 110 N.M. 574, 583, 798 P.2d 175, 184
(1990) (stating that expert testimony is not required to support charges of a dentist’s
unprofessional conduct where the board itself is composed primarily of experts who are
qualified to make a judgment about a dentist’s adherence to the standards of professional
conduct). In conducting that evaluation, the statutory scheme entrusts board members as a
group to call upon their collective knowledge and expertise to make findings and conclusions
and to determine what, if any, disciplinary action is appropriate. This is particularly
important where, as here, there is no evidence that the individual selected to serve as the
hearing officer, who is a retired judge and practicing attorney, had any particular knowledge
of dentistry. The Board was entitled to reach its own conclusion about whether Jaime’s
conduct was unprofessional, regardless of the hearing officer’s assessment of this issue.

{7}     Here, the Board concluded that a preponderance of the evidence supported the
determination that Jaime violated Regulation 16.5.16.10(B)(5) (06/14/2012) of the
Administrative Code, which provides that a dentist commits unprofessional conduct when
she fails “to advise the patient in simple understandable terms of the proposed treatment, the
anticipated fee, the expectations of success, and any reasonable alternatives[.]” The factual
findings on which this determination was based included the following:

               6.       At [the patient’s] June 20, 2007 appointment to finish his root
       scaling, and while he had been anesthetized and was sitting in the dentist’s
       chair for that procedure, [Jaime] told [the patient] that he needed the fillings

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       replaced on [T]eeth [N]umbers 12 and 15. Although [the patient] objected,
       saying that he did not have the time before he had to return to work, [Jaime]
       told him it would only take [thirty] minutes, and [the patient] agreed to have
       the fillings replaced.

               7.      During this June 20, 2007 appointment, [Jaime] removed the
       fillings on [the patient’s T]eeth [N]umbers 12 and 15 by drilling out the
       decay . . . and grinding down both teeth so she could replace the fillings,
       [then] showed him pictures of these teeth, suggested that they be crowned[,]
       and explained that replacing the fillings as he had agreed that morning was
       not the best treatment.

               8.      [Jaime] did not tell [the patient] before she removed his two
       fillings from [T]eeth [N]umbers 12 and 15 that he might need crowns on
       those teeth instead of the replacement fillings he expected.

                9.     While [the patient] was anesthetized and sitting in the
       dentist’s chair during his June 20, 2007 appointment, and after [Jaime] had
       drilled the decay . . . and ground down [T]eeth [N]umbers 12 and 15 so she
       could replace his fillings, [Jaime] presented a Consent Form and a Treatment
       Plan to [the patient] for the temporary crowns she would place that day.

                 10.    [The patient] signed the June 20, 2007 Consent Form
       indicating “Changes in Treatment Plan” and “Crowns, Bridges and Caps”
       and . . . signed a Treatment Plan estimating the cost of the two crowns, after
       he had been anesthetized and was sitting in the dentist’s chair . . . and after
       his teeth were already ground down to remove his old fillings.

               11.     At [the patient’s] June 20, 2007 appointment to finish his root
       scaling, [he] had no opportunity to refuse having temporary crowns placed
       that particular day on [T]eeth [N]umbers 12 and 15 until it was too late and
       his teeth had already been ground down.

We find nothing arbitrary or capricious in the Board’s expert conclusion that Jaime’s failure
to discuss the possibility that her patient might need crowns rather than fillings or to inform
him of the cost of the crowns prior to grinding his teeth down was a violation of Regulation
16.5.16.10(B)(5).

{8}     Although nothing in the ULA suggests that the Board is required to defer to the
hearing officer’s findings of fact, and nothing in the ULA permits the hearing officer to
reach conclusions of law or to make disciplinary recommendations, Jaime argues that the
cases relied upon by the district court, involving other administrative procedures, indicate
that deference to the hearing officer’s report was required in this case. However, the
administrative procedures in those cases differ in significant respects from the procedures

                                              5
set forth in the ULA. For instance, In re Bristol involved a scheme for disciplining attorneys
that required a hearing committee to take evidence and to issue not only findings of fact, but
also conclusions of law and recommendations for discipline. 2006-NMSC-041, ¶¶ 2, 15-16;
see In re Oppenheim, 2007-NMSC-022, ¶¶ 26-27, 141 N.M. 596, 159 P.3d 245 (relying on
In re Bristol in a case involving bar admission). Similarly, Atlixco Coalition involved a
regulatory scheme that required a hearing officer to take evidence and then make a
recommended decision. 1998-NMCA-134, ¶ 15. Regulations provided that the Secretary
of the New Mexico Environment Department could modify or reject the recommended
decision, but required the Secretary’s final order to set forth any reasons for taking such
action. Id. In contrast to the procedures at issue in In re Bristol and Atlixco Coalition, where
the hearing committee or officer was required to undertake a role similar to that of a district
court—taking evidence, making findings of fact and conclusions of law, and then providing
a remedy—the ULA creates a much more limited role for a hearing officer. Under the ULA,
the hearing officer is only permitted to make findings, and even those findings need not be
given deference by the board, as they are simply there to aid the board in making its own
findings. See § 61-1-7(A) (requiring the hearing officer to make only findings of fact); § 61-
1-13(A) (stating that it is a quorum of the board that renders a decision in the case); § 61-1-
16 (stating that the board’s decision must be based on its findings of fact). Because the
administrative procedures in In re Bristol and Atlixco Coalition differ from those set forth
in the ULA, those cases are inapplicable.

III.   CONCLUSION

{9}     The district court erred by concluding that the Board acted arbitrarily and
capriciously when it failed to defer to the hearing officer’s report. As this conclusion was
contrary to the ULA, we reverse the district court.

{10}   IT IS SO ORDERED.

                                               ____________________________________
                                               RODERICK T. KENNEDY, Chief Judge

WE CONCUR:

____________________________________
JAMES J. WECHSLER, Judge

____________________________________
LINDA M. VANZI, Judge

Topic Index for N.M. Bd. of Dental Health Care v. Jaime, No. 30,748

ADMINISTRATIVE LAW AND PROCEDURE
Administrative Appeal

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Arbitrary and Capricious Actions
Hearings
Standard of Review

GOVERNMENT
Licensing

TORTS
Licensees




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