Cottingham v. SCDLLR

THIS OPINION HAS NO PRECEDENTIAL VALUE. IT SHOULD NOT BE
CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING
EXCEPT AS PROVIDED BY RULE 268(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

John D. Cottingham, DVM, Appellant,

v.

South Carolina Department of Labor, Licensing and
Regulation, South Carolina Board of Veterinary Medical
Examiners, Respondent.

Appellate Case No. 2011-192826

Appeal From The Administrative Law Court
S. Phillip Lenski, Administrative Law Judge

Unpublished Opinion No. 2013-UP-027
Heard December 11, 2012 – Filed January 16, 2013

AFFIRMED

Brian S. Wade, of Murrells Inlet, for Appellant.

Patrick D. Hanks, of Columbia, for Respondent.

PER CURIAM: Cottingham practiced veterinary medicine at the Village
Veterinary Clinic in Myrtle Beach, South Carolina. Between March 31, 1997, and
December 31, 2000, Cottingham failed to remit $66,887 in payroll taxes to the
Internal Revenue Service. A federal grand jury later indicted Cottingham for
attempting to evade income tax assessment and for failing to collect, account for,
and pay over such taxes. In response, Cottingham pled guilty to both felony
charges and the federal district court accepted his plea.

Subsequently, the Board of Veterinary Medical Examiners (Board) initiated
disciplinary action against Cottingham, alleging he used a false document in the
practice of veterinary medicine, obtained fees under false or deceptive
circumstances, engaged in unprofessional conduct, and pled guilty to a felony or
crime of moral turpitude, all in violation of the laws and regulations governing
veterinary medicine practice. Prior to any determination of this disciplinary action,
the Board received a complaint that Cottingham provided substandard veterinary
medical care to a diabetic feline. The Board then amended the disciplinary action
to include, in addition to all prior allegations, charges that Cottingham's related
treatment and records did not meet the appropriate standard of care.

Opting to not contest the allegations, Cottingham waived formal hearing
procedures and entered into a Memorandum of Agreement and Stipulations
(MOA) with the Board. Therein, Cottingham stipulated, inter alia: to pleading
guilty to a felony; to not meeting the appropriate standard of care for treatment of
the diabetic feline; and to not maintaining adequate medical records. Cottingham
also acknowledged these acts constituted grounds for sanction.

Relying upon the conduct admitted within the MOA, the Board concluded
Cottingham violated section 40-69-110(A)(6), (7), (11), (12), and (24) of the South
Carolina Code (Supp. 2007) and 27 S.C. Code Ann. Regs. 120-8 (2007). While
the Board's Final Order required imposition of a public reprimand, an indefinite
suspension of Cottingham's veterinary license, and a $638 fine, it also expressly
permitted him to petition for reinstatement after: (1) satisfactorily completing
thirty hours of continuing education, including classes on feline diabetes and
medical record keeping; (2) submitting a written report on how this education
would have changed his care of the diabetic feline; (3) making his clinical records
subject to inspection; and (4) submitting an updated mental health evaluation.

Cottingham timely appealed the Final Order to the Administrative Law Court
(ALC), arguing: (1) the record does not support the Board's conclusions; (2) the
Board exceeded its authority in considering his felony convictions and in imposing
sanctions; and (3) the imposed sanctions are arbitrary and capricious.

First, the ALC found that Cottingham did not preserve his evidentiary argument for
appeal because he did not challenge the evidence before the Board. Second, the
ALC found Cottingham's argument that the imposed sanctions exceeded the
Board's statutory authority amounted to a subject matter jurisdiction challenge,
which could, however, be raised initially on appeal. Nonetheless, the ALC
concluded that the Board did not exceed its jurisdiction in considering
Cottingham's felony conviction or in requiring the continuing education, a related
written report, and an updated mental health evaluation. Finally, the ALC found
the imposed sanctions were not arbitrary and capricious.

Cottingham now argues the ALC erred in affirming: (1) the Board's consideration
of Cottingham's convictions for tax evasion; and (2) all imposed sanctions.

A. The Board's Authority to Consider Tax Evasion Convictions

As to Cottingham's first argument, the Board may discipline licensees upon
determining "that one or more grounds for discipline" exist. S.C. Code Ann. § 40-
69-120 (Supp. 2007) (emphasis added). Notably, "convict[ion] of a felony or a
crime involving moral turpitude" is an individually enumerated ground to
"suspend, revoke, or restrict" a veterinarian's license. § 40-69-110(A)(24)
(emphasis added). A person convicted of tax evasion is a felon. See I.R.C. §§
7201-7202 (2007) (specifying the crime of federal tax evasion); 18 U.S.C. § 3559
(2006) (classifying federal tax evasion as a Class D felony). Because tax evasion
requires intent to deceive the United States and to avoid a societal duty, it is a
crime of moral turpitude. See State v. Major, 301 S.C. 181, 184, 391 S.E.2d 235,
237 (1990) (holding crimes of moral turpitude involve breaches of societal duties
and not solely self-destructive behavior); Gantt v. Columbia Coca-Cola Bottling
Co., 204 S.C. 374, 380, 29 S.E.2d 488, 490 (1944) (holding one's engagement in
business with intent to defraud the United States of tax money implicates moral
delinquency); see also I.R.C. §§ 7201-7202 (requiring an intent to willfully evade a
societal duty and defraud the United States). Therefore, Cottingham's convictions
are both felonious and for crimes of moral turpitude. In turn, both convictions
have two independent statutory grounds for consideration by the Board.

While Cottingham argues section 40-1-140 of the South Carolina Code (Supp.
2007) precludes sanction for felonies unrelated to the practice of veterinary
medicine, this provision does not so constrain the Board's authority with regard to
sanctions against existing licensees; section 40-1-140 only applies to applicants for
initial licensure. See § 40-1-140 (limiting the Board's consideration to felony
convictions related to the practice of veterinary medicine only when determining
the fitness of "applicants" for initial licensure, without limiting the Board's separate
statutory authority to consider both related and unrelated felony convictions when
sanctioning an existing licensee); § 40-69-110(A)(24) (authorizing the Board to
sanction an existing licensee for any "convict[ion] of a felony or a crime involving
moral turpitude") (emphasis added). To interpret section 40-1-140 as applicable to
existing licensees would directly contradict clear and unambiguous statutory intent.
See Sloan v. S.C. Bd. of Physical Therapy Exam'rs, 370 S.C. 452, 468, 606 S.E.2d
598, 616 (2006) (concluding that clear and unambiguous statutory intent must
prevail). Furthermore, even if section 40-1-140 did apply to existing licensees,
which it does not, Cottingham's convictions did directly relate to his unlawful
practices at the veterinary clinic and did implicate moral turpitude. Therefore,
regardless of the provision's scope, it has no bearing on whether the Board properly
sanctioned Cottingham. Thus, the Board had authority to consider Cottingham's
tax evasion convictions in determining sanctions.

B. Lawfulness of Imposed Sanctions

Cottingham argues the ALC erred in affirming all sanctions imposed by the Board
because the sanctions: (1) lack substantial evidence; and (2) exceed the Board's
authority and are extreme. Both contentions are without merit.

As to the first, because Cottingham did not challenge the sufficiency of the
evidence before the Board, the issue is unpreserved. Widewater Square Assoc. v.
Opening Break of America, Inc., 314 S.C. 149, 151, 442 S.E.2d 185, 186 (Ct. App.
1994), aff'd as modified on other grounds, 319 S.C. 243, 460 S.E.2d 396 (1995).
Thus, Cottingham cannot now argue the sanctions lack sufficient evidence.

Even if we were to address the argument, we simply note that Cottingham
specifically stipulated within the MOA to engaging in the conduct upon which the
sanctions are based, and that such conduct "presents grounds that constitute
misconduct." These stipulations provide more than substantial support for a
reasonable mind to arrive at the Board's conclusion. Deese v. S.C. State Bd. of
Dentistry, 286 S.C. 182, 186, 332 S.E.2d 539, 542 (Ct. App. 1985); see Osman v.
S.C. Dep't of Labor, Licensing, Regulation, 382 S.C. 244, 249-50, 676 S.E.2d 672,
675-76 (2009) (upholding sanctions based upon a board's consideration of admitted
conduct); Gale v. State Bd. of Med. Exam'rs, 282 S.C. 474, 478-79, 320 S.E.2d 35,
38 (Ct. App. 1984) (reviewing a license revocation for substantial evidence).

Next, Cottingham argues the Board exceeded its authority in imposing sanctions.
While it appears the ALC conflated the concepts of subject matter jurisdiction with
the scope of the Board's statutory authority, and thus believed the argument was
still reviewable, Cottingham actually attacked only the Board's statutory authority.
See S.C. Code Ann. § 40-69-115 (2007) (conveying subject matter jurisdiction to
hear actions involving licensees and former licensees arising during the practice
authorization period); Theisen v. Theisen, 394 S.C. 434, 440-41, 716 S.E.2d 271,
274 (2011) (stating subject matter jurisdiction is the power to hear cases of the
general class to which the proceedings belong, while "jurisdiction" and "authority"
concern the limits of what a tribunal may properly consider or order regarding a
case within the tribunal's general class); see also In re November 4, 2008 Bluffton
Town Council Election, 385 S.C. 632, 637, 686 S.E.2d 683, 685-86 (2009)
(holding subject matter jurisdiction can be raised for the first time on appeal).
Because Cottingham did not raise this argument before the Board, it is also
unpreserved.

Notwithstanding the argument's unpreserved nature, the Board unquestionably did
not exceed its statutory jurisdiction, violate statutory provisions, or abuse its
discretion. Because the Board found at least a single statutorily defined ground for
discipline exists, the Board had authority to impose sanctions against Cottingham's
veterinary medicine license. S.C. Code Ann. § 40-1-110; § 40-69-120; cf. Gale,
282 S.C. at 479, 320 S.E.2d at 38 (holding the law confers discretion to the
medical board to appropriately sanction for any statutorily defined cause). In turn,
all imposed sanctions are statutorily authorized. S.C. Code Ann. § 40-1-120(A)(3)
(stating the available sanctions include, among others, license revocation,
probation, restriction, and suspension); id. (authorizing the Board to "prescribe
conditions . . . including, but not limited to, satisfactory completion of . . .
continuing education programs"); cf. Osman, 382 S.C. at 247-48, 676 S.E2d at
674-75 (ruling a medical board can require continuing education and reasonable
satisfactory proof thereof).

Finally, none of the imposed sanctions are unwarranted, excessive, or otherwise
result from an abuse of the Board's discretion because the sanctions are supported
by the evidence and are well within the scope of the Board's conferred discretion.
See Deese, 286 S.C. at 184-85, 332 S.E.2d at 541 ("A decision is arbitrary if it is
without a rational basis, is based alone on one's will and not upon any course of
reasoning and exercise of judgment, is made at pleasure, without adequate
determining principles, or is governed by no fixed rules or standards."); id. at 185,
332 S.E.2d at 541 (stating it appears settled that an agency need not exercise its
discretion identically in every case and that a penalty within statutory authority is
not unwarranted simply because it is more severe than sanctions imposed in other
cases); cf. Osman, 382 S.C. at 249-50, 676 S.E.2d. at 676 (upholding imposed
sanctions within the medical board's statutory authority, despite presence of
mitigating circumstances); Gale, 282 S.C. at 480-81, 320 S.E.2d at 38-39 (holding
the law confers discretion to the medical board to affix, in its judgment, an
appropriate penalty for any statutorily defined cause); id. at 479, 320 S.E.2d at 38
(stating the code does not obligate the medical board to impose certain sanctions
for certain violations).

AFFIRMED.

FEW, C.J. and HUFF and GEATHERS, JJ., concur.