            IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mohamed Ali Hammad, V.M.D.,              :
                                         : No. 120 C.D. 2015
                         Petitioner      : Submitted: August 28, 2015
                                         :
                   v.                    :
                                         :
Bureau of Professional and               :
Occupational Affairs, State              :
Board of Veterinary Medicine,            :
                                         :
                         Respondent      :



BEFORE:     HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE P. KEVIN BROBSON, Judge
            HONORABLE ROCHELLE S. FRIEDMAN, Senior Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY SENIOR JUDGE FRIEDMAN                            FILED: November 17, 2015


            Mohamed Ali Hammad, V.M.D. petitions for review, pro se, of the
January 13, 2015, final order (2015 Final Order) of the State Board of Veterinary
Medicine (Board) that revoked Hammad’s license to practice veterinary medicine and
directed him to remit a $20,000 civil penalty. We affirm in part, reverse in part, and
modify the 2015 Final Order, reducing Hammad’s civil penalty to $15,000.


            Hammad is licensed to practice veterinary medicine in Pennsylvania.
On February 28, 2013, a hearing examiner issued a proposed adjudication and order
imposing a $5,000 civil penalty on Hammad and suspending his veterinary license for
two years, with six months of the suspension active and the remainder stayed, subject
to a like period of probation with specified terms and conditions. The stay, however,
was conditioned on Hammad remitting the civil penalty.


              On May 29, 2013, the Board issued its final order (2013 Final Order),
adopting the hearing examiner’s proposed adjudication and order.1 The Board served
the 2013 Final Order on Hammad by mail. Hammad failed to remit the civil penalty,
and, on July 19, 2013, the Department of State (Department) requested that Hammad
immediately return his veterinary license, wall certificate, and wallet card to the
Board.


              In August 2013, Francis Peirce, a professional conduct investigator
employed by the Department’s Bureau of Enforcement and Investigation,2 was
assigned to investigate Hammad.           Peirce was instructed to serve Hammad with
another copy of the 2013 Final Order, retrieve his licensure documents, and
determine if he was still practicing veterinary medicine.


              On October 25, 2013, Peirce went to Hammad’s office and found it open
for business with posted office hours of 8:00 a.m. to 5:00 p.m., Tuesday through
Saturday. The door to Hammad’s office was unlocked, and, when Peirce walked in,

       1
         The Board determined that Hammad violated the Veterinary Medicine Practice Act (Act),
Act of December 27, 1974, P.L. 995, No. 326, as amended, 63 P.S. §§485.1-485.33, and the
Board’s regulations. Specifically, the Board found that Hammad violated recordkeeping and
professional conduct regulations.

       2
        As a professional conduct investigator supervisor, Peirce is responsible for investigating
complaints filed with various licensing boards, including the Board.


                                                2
he saw Hammad standing at the reception counter. Peirce gave Hammad his name
and card and explained that he was there to serve Hammad with the 2013 Final Order,
collect Hammad’s licensure documents, and inspect his records.


            Hammad informed Peirce that he was still practicing veterinary
medicine. Peirce explained to Hammad that Hammad’s license was suspended and
he was not permitted to practice, to which Hammad replied that he had filed an
appeal and a complaint with the Pennsylvania Human Relations Commission.
Hammad provided Peirce with copies of the appeal and the complaint.           Peirce
requested that Hammad turn over his licensure documents, and Hammad refused.
Peirce provided Hammad with a copy of the Board’s 2013 Final Order.


            Thereafter, Peirce asked to see Hammad’s appointment book and
records. Hammad stated that he had no records, opened an appointment book to an
undated page containing handwritten appointment times, showed it to Peirce, and told
Peirce he had no appointments.      Hammad did not permit Peirce to inspect the
appointment book or to make copies of it. Before leaving, Peirce again told Hammad
that he could not practice veterinary medicine because his license was suspended.
Hammad responded that he was going to continue to practice. Peirce left the office.


            In November 2013, Peirce investigated a complaint of incompetence
filed against Hammad by Joe Humeas, the owner of a cat named Cambria. Humeas
alleged that on August 19, 2013, he took Cambria to Hammad’s office after Cambria
swallowed some rope. At the visit, Hammad examined the cat, gave her some Nutri-
Cal gel, and administered a shot.     Hammad then dispensed some pills and the


                                         3
remaining Nutri-Cal to Humeas. Hammad told Humeas that the rope would pass
through and that Cambria would be okay. Hammad charged Humeas $148 for the
visit. That same evening, Cambria’s condition worsened and Humeas, fearing the cat
would die, took Cambria to an emergency veterinary clinic for treatment.


            On February 20, 2014, Peirce sent Hammad a letter informing him that
Peirce was investigating a complaint against him. Peirce asked Hammad to contact
him to set an appointment for an interview.       On February 25, 2014, Hammad
acknowledged receipt of the letter and requested a formal copy of the complaint and
all information about the veterinarian who was supporting the complaint so that he
could file a complaint with the trial court. (Peirce Letter, 2/25/14, at 1.) Hammad
stated that he would set up a meeting with Peirce after he received the requested
information. (Id.)


            On April 4, 2014, the Department issued an order to show cause before
the Board alleging three counts: (1) Hammad refused to permit the Board, or its duly
authorized representative, to inspect his business premises; (2) Hammad failed and/or
refused to permit a duly authorized Board representative to inspect and/or copy his
appointment book and veterinary medical records; and (3) Hammad violated a lawful
disciplinary Board order.


            On May 2, 2014, Hammad filed an answer and requested a formal
hearing before the Board. On May 12, 2014, the Board delegated the case to a
hearing examiner, who scheduled a hearing for August 6, 2014.




                                         4
               In May 2014, Peirce went to Hammad’s office to talk to him. Peirce
noted that the same office hours were posted, the office was open, and the practice
appeared to be operational. Peirce was greeted by a young man who went into the
back office when Peirce asked if Hammad was there. Upon returning, the young man
informed Peirce that Hammad had stepped out. Peirce left his card and directed the
young man to ask Hammad to call him.            On another date, Peirce returned to
Hammad’s office around 1:00 p.m. The office was locked and new business hours
were posted.


               On May 23, 2014, Peirce telephoned Hammad and spoke with him,
explaining that he needed Hammad’s records. Hammad stated that unless Peirce
gave him a copy of the complaint, the name of the complainant, and the names of any
veterinarians involved, Hammad would not meet or talk to Peirce.


               On May 27, 2014, Hammad filed objections to the delegation of the case
to a hearing examiner and requested a Board hearing. On June 2, 2014, the Board
denied Hammad’s objections and request.          On June 11, 2014, Hammad filed
objections to the denial of his request.


               Subsequently, the hearing examiner held the scheduled hearing, at which
Hammad did not appear.        The Department presented testimony and evidence in
support of the three allegations. After the hearing, the record was closed.


               On September 15, 2014, the hearing examiner issued a proposed order
and adjudication. On January 13, 2015, the Board issued the 2015 Final Order. The


                                           5
Board found that: the 2013 Final Order was dated May 29, 2013; the 30-day appeal
period expired on June 28, 2013; there was no evidence that Hammad obtained a stay
or supersedeas of the suspension imposed by the 2013 Final Order or of Hammad’s
successful appeal of the 2013 Final Order; Hammad’s license remained suspended;
Hammad had received all pleadings, notices, and orders; and Hammad had filed an
answer and was given the opportunity to appear at a hearing, but failed to do so.


               The Board concluded that Hammad: (1) refused to permit the Board’s
duly authorized representative, Peirce, to inspect Hammad’s business premises,
subjecting him to disciplinary action under section 21(9) of the Act, 63 P.S.
§485.21(9);3      (2) refused to permit Peirce to inspect and/or copy Hammad’s
appointment book and veterinary medical records in violation of section 27.1(b)(1) of
the Act, 63 P.S. §485.27a(b)(1),4 subjecting him to disciplinary action under section

       3
          Section 21(9) of the Act provides that a veterinarian’s license shall be revoked or
suspended, or the veterinarian disciplined for “[r]efusing to permit the board, or duly authorized
representatives of the board, to inspect the business premises of the licensee.” 63 P.S. §485.21(9).

       4
         Section 27.1(b)(1) of the Act, added by Section 2 of the Act of December 9, 2002, P.L.
1370, provides that a veterinarian shall, upon request, immediately provide “[c]opies of all records
required to be kept by a veterinarian under this section, including, but not limited to, records
pertaining to diagnosis and treatment of animals and records pertaining to drugs or devices for use
on animals” to the Board. Further:

               [t]he records shall also be open to inspection by the board or its
               authorized representatives during an inspection as part of an
               inspection program adopted by the board or during an investigation
               initiated in response to a complaint that a licensee has violated any
               law or regulation that constitutes grounds for disciplinary action by
               the board.

63 P.S. §485.27a(b)(1).



                                                 6
21(1) of the Act, 63 P.S. §485.21(1)5; and (3) violated the Board’s 2013 Final Order,
subjecting him to disciplinary action under section 5(b)(1) of the Act of July 2, 1993,
P.L. 345, No. 48 (Act 48), as amended, 63 P.S. §2205(b)(1).6


               By order dated January 13, 2015, the Board revoked Hammad’s license
to practice veterinary medicine, effective February 12, 2015, and ordered Hammad to
remit a $20,000 civil penalty. Hammad appealed to this court.7


               Initially, Hammad contends that his case was never heard despite his
filing of formal requests before the Board. Specifically, Hammad asserts that he
requested a hearing before the Board, not before a hearing examiner.


               “The Act does not require the Board to provide a licensed veterinarian
with a hearing in which the licensed veterinarian may directly address the full Board
prior to the imposition of sanctions. Sections 24 and 25 of the Act, 63 P.S. §§485.24
(“Disciplinary action authorized”) and 485.25 (“Procedure in disciplinary actions”).”




       5
           Section 21(1) of the Act provides that a veterinarian’s license shall be revoked or
suspended, or the veterinarian disciplined for “[w]ilful or repeated violations of any provisions of
this act or any of the rules or regulations of the board.” 63 P.S. §485.21(1).

       6
            Section 5(b)(1) of Act 48 provides authority for the Board “[t]o impose discipline,
including, but not limited to, a civil penalty of up to $10,000 per violation on any licensee . . . who
violates a lawful disciplinary order of the board.” 63 P.S. §2205(b)(1).

       7
         Our review is limited to determining whether constitutional rights were violated, whether
an error of law was committed, or whether the necessary findings of fact are supported by
substantial evidence. Section 704 of the Administrative Agency Law, 2 Pa. C.S. §704.


                                                  7
Hammad v. Bureau of Professional and Occupational Affairs, __ A.3d at __, __ (Pa.
Cmwlth., No. 2421 C.D. 2014, filed September 10, 2015), slip op. at 6.8

                      Under the Act, when the Department takes
               disciplinary action against a veterinarian’s license by
               issuing an order to show cause, the procedure that it follows
               is governed by the Administrative Agency Law [Act of
               April 28, 1978, P.L. 202, No. 53, as amended, 2 Pa. C.S.
               §§501-508] and the General Rules of Administrative
               Practice and Procedure [1 Pa. Code §§ 31.1-35.251]. The
               General Rules of Administrative Practice and Procedure . . .
               permit the Board to preside over a disciplinary hearing or to
               designate a presiding officer to hold the hearing and to issue
               a proposed report for the Board’s review. The ultimate
               decision on what, if any, action to take lies with the Board.

Id. (footnotes omitted). Thus, the Board did not err in designating a hearing officer to
conduct Hammad’s hearing.


               Due process requires that a petitioner “be given notice and an
opportunity to be heard, as well as the opportunity to confront and cross-examine . . .
witnesses.” Id. at __, slip op. at 4 n.4. Here, the record reveals that a hearing notice
was mailed to Hammad on May 15, 2014, scheduling a hearing before a hearing
examiner at 9:30 a.m. on August 6, 2014.                  Hammad was informed of the
Department’s allegations and that he had a right to an attorney, a right to present
evidence, a right to challenge any evidence, and a right to cross-examine witnesses at
the hearing.


       8
          In Hammad, this court affirmed the Board’s 2013 Final Order, determining that Hammad
was afforded due process of law and that the Board had followed the proper procedure in
adjudicating the matter and assessing Hammad a civil penalty of $5,000. Id. at __, slip op. at 1.


                                               8
               Hammad failed to appear at the August 6, 2014, hearing. Hammad’s
failure to appear and “engage in the process he was due does not amount to an error
in that process or to a violation of [Hammad’s] rights.” Id. at __, slip op. at 7.
Hammad was given notice and an opportunity to be heard, but chose not to be heard.
The Board did not violate Hammad’s due process rights.9


               Next, Hammad asserts that the 2015 Final Order was never authorized,
consented to, or acknowledged by the Board members.10 Hammad asserts that there
were no Board meetings in January or February 2015, and, therefore, the Board could
not have signed the 2015 Final Order.


               The Board sets forth that a quorum of the Board met on October 17,
2014, and reviewed Hammad’s entire record. At the meeting, the Board determined
that the hearing examiner’s findings were supported by the evidence, that the sanction
was appropriate, and that the hearing examiner’s proposed report should be adopted.
In a public session, the Board voted unanimously to direct its counsel to draft the
2015 Final Order, consistent with the Board’s discussion in the executive session.
The Board met again on December 19, 2014, and considered the draft 2015 Final
Order.      The Board voted unanimously, in public session, to accept the draft as


       9
         Hammad also contends that he filed a motion to discontinue the case on September 20,
2012, but the Board did not consider the filing until January 16, 2013, and never responded to the
motion. However, this action began with the order to show cause filed on April 4, 2014. The 2013
Final Order is not presently before this court. Therefore, we will not address this issue.

       10
          We note that Hammad also argues the same about the 2013 Final Order. However, as
previously stated, the validity of the 2013 Final Order is not before this court and, therefore, we will
not address it.


                                                   9
written. The 2015 Final Order, which is included in the certified record, was issued
on January 13, 2015, and was signed by David R. Wolfgang, V.M.D., chairperson of
the Board and Ian J. Harlow, acting commissioner for the Bureau of Professional and
Occupational Affairs.        Therefore, contrary to Hammad’s assertion, the Board
authorized the 2015 Final Order.11


              Finally, Hammad essentially argues that the penalties assessed in the
Board’s 2015 Final Order were excessive. We agree in part.


              Section 28(c) of the Act, 63 P.S. §485.28(c),12 as amended by section
5(b) of Act 48, authorizes the Board:

                     (1) To impose discipline, including, but not limited
              to, a civil penalty of up to $10,000 per violation on any
              licensee . . . who violates a lawful disciplinary order of the
              board.

                                               ***

                     (4) To levy a civil penalty of not more than $10,000
              per violation on any licensee . . . who violates any provision
              of the applicable licensing act or board regulation.



       11
          We note that the Board attached to its brief the minutes from the Board’s December 19,
2014, public meeting, in which the Board noted that it deliberated the Hammad matter, moved to
adopt the proposed final adjudication and order, and noted that the motion carried unanimously.
(Board minutes, 12/19/14, at 59.) The Board’s regulation at 1 Pa. Code §33.3 allows an agency to
incorporate by reference any documents on file with that agency into a subsequently filed pleading,
submittal, or document.

       12
          Section 28(c) of the Act, 63 P.S. §485.28(c), was repealed insofar as it was inconsistent
with section 5 of Act 48, 63 P.S. §2205.


                                                10
63 P.S. §2205(b)(1) and (4).


             Here, the Board assessed Hammad a $10,000 civil penalty for violating
the Board’s 2013 Final Order by continuing to practice veterinary medicine after his
license was suspended.       The Board also assessed a $5,000 civil penalty for
Hammad’s failure to permit Peirce to inspect his veterinary medical records, and a
second $5,000 civil penalty for Hammad’s failure to permit Peirce to inspect his
business premises.


             This court is not permitted to substitute its “‘judgment for that of the
Board and, absent a flagrant abuse of discretion, will not interfere in discretionary
matters of the Board.’” Garner v. Bureau of Professional and Occupational Affairs,
97 A.3d 437, 444 (Pa. Cmwlth. 2014) (citation omitted). The penalties assessed by
the Board are within the Board’s authority. However, the $5,000 civil penalty for
Hammad’s failure to permit Peirce to inspect his business premises is not supported
by the record. The record is devoid of any request by Peirce to inspect Hammad’s
business premises or the denial of any such request. Thus, we find that the Board
erred in assessing this $5,000 civil penalty.


             Accordingly, we affirm in part, reverse in part, and modify the 2015
Final Order, reducing Hammad’s civil penalty to $15,000.




                                        ___________________________________
                                        ROCHELLE S. FRIEDMAN, Senior Judge


                                           11
           IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Mohamed Ali Hammad, V.M.D.,               :
                                          : No. 120 C.D. 2015
                          Petitioner      :
                                          :
                   v.                     :
                                          :
Bureau of Professional and                :
Occupational Affairs, State               :
Board of Veterinary Medicine,             :
                                          :
                          Respondent      :




                                       ORDER


             AND NOW, this 17th day of November, 2015, the January 13, 2015,
final order of the State Board of Veterinary Medicine (Board) is hereby affirmed in
part and reversed in part. We reverse only as to that portion of the Board’s final order
that imposed a $5,000 civil penalty on Mohamed Ali Hammad, V.M.D., for
Hammad’s failure to permit the Board to inspect his business premises. Accordingly,
we modify the Board’s final order to reduce the civil penalty assessed against
Hammad to $15,000.



                                          ___________________________________
                                          ROCHELLE S. FRIEDMAN, Senior Judge
