Norton v. Wash. State Dep't of Health

MELISSA M. NORTON, Appellant, v. WASHINGTON STATE DEPARTMENT OF HEALTH, Respondent.

No. 80344-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

February 8, 2021

UNPUBLISHED OPINION

CHUN, J. — After auditing Dr. Melissa Norton's veterinary practice, the Department of Health (Department) issued a Statement of Charges alleging deficient record-keeping. Norton requested a hearing. The Department issued an Amended Statement of Charges also alleging substandard veterinary care of dogs and unsanitary conditions in her practice. After a hearing, the Veterinary Board of Governors (Board) permanently revoked Norton's veterinary license. Norton petitioned for judicial review to the trial court, which petition it denied. Norton appeals. We affirm.

I. BACKGROUND

In 2014, Norton signed Stipulated Findings of Fact, Conclusions of Law, and Agreed Order (2014 Agreed Order). Under the 2014 Agreed Order, the Board found that Norton had kept inadequate practice records and concluded that she had committed unprofessional conduct. The Board placed Norton's veterinary license on at least two years of probation, required her to complete continuing education courses, and ordered her to pay a fine. Under the 2014 Agreed Order, it also imposed the following condition allowing audits of her practice:

In addition to any other inspections that the Board may make, [Norton] shall permit a [Department] investigator, on an unannounced basis, to audit [Norton]'s practice, including patient records, up to four (4) times per year for the duration of the probationary period. The audit will take place at [Norton]'s place of employment or practice. The [Department] investigator shall have discretion to audit up to forty (40) records per audit.

In November 2015, Department investigators audited Norton's practice. The investigators collected patient records, took photos of the clinic, and took photos of outdoor kennels near the clinic. The clinic's operating room had a "total lack of cleanliness," and the outdoor kennels strongly smelled of urine and feces. The outdoor kennels held 38 dogs at the time of the audit. Because of the rain, the concrete floors of the kennels were wet, and the kennels had no heating units. Although the kennels had roofs, the dogs in the kennels were wet during the audit. Norton told the investigators that she had just received the dogs on behalf of Seattle Pug Rescue and that she planned to do amputations on two of them. Norton had acted as the veterinarian for Seattle Pug Rescue for years.

The Department issued a Statement of Charges against Norton that alleges that she had failed to sufficiently document records of physical examinations, diagnoses, and treatment plans for six dogs. Norton requested a hearing about the allegations.

At an August 2, 2017 prehearing conference, the Board admitted a copy of the 2014 Agreed Order as an exhibit. Attorney Elizabeth Steen appeared at the prehearing conference on Norton's behalf.

After the prehearing conference but before the hearing, the Board issued an Amended Statement of Charges against Norton. It additionally alleges that Norton had not provided the six dogs from the original Statement of Charges with adequate veterinary care, that her surgical and examination facility was unsanitary on the day of the audit, and that the outdoor kennels were unsanitary.

Before the hearing, Steen moved to remove the presiding officer, Health Law Judge Jerry Villarreal, contending he had acted prejudicially against her by holding her to a higher standard than the Department's male attorney. Chief Health Law Judge Roman Dixon denied the motion because Judge Villarreal had not shown bias or prejudice against Steen.

At a January 24, 2018 prehearing conference, Judge Villarreal admitted 121 photos taken by Department investigators at Norton's practice, including photos of the outdoor kennels.

In May 2018, Steen withdrew from representing Norton. After withdrawing, Steen submitted two ex parte letters to Chief Judge Dixon. Chief Judge Dixon later characterized Steen's letters as "aggressive, offensive, intentionally designed to disrupt the tribunal and provoke animosity and wholly unacceptable," and ordered Steen to refrain in engaging in ex parte contact.

At the August 2018 hearing, an expert witness for the Department testified that Norton had grossly violated the applicable standard of care by kenneling thedogs outdoors in wet conditions, and that the kenneling posed a moderate risk of harm to the animals. The expert also testified that the unsanitary conditions in the surgical facility and kenneling of dogs near the surgical table posed a moderate to severe risk of harm to the animals.

After the hearing, the Board issued Findings of Fact, Conclusions of Law, and a Final Order that permanently revoked Norton's veterinary license. The Board concluded that the Department had proven all its allegations of unprofessional conduct both by a preponderance of the evidence and by clear and convincing evidence. In imposing its sanction, the Board concluded that Norton's history of unprofessional conduct and practice below the veterinary standard of care warranted permanent revocation of her license because she showed she cannot be rehabilitated.

Norton petitioned for judicial review of the order and sanction, which petition the trial court denied.

II. ANALYSIS

Norton says that the Board erred by not suppressing the evidence related to the outdoor kennels and that it erred in applying two standards of proof. She also claims that the Board erred by admitting the 2014 Agreed Order before deciding the sanctions issue, that Judge Villarreal erred by failing to recuse himself, and requests an award of attorney fees. We disagree with Norton's claims.

We review an agency's findings of fact for substantial evidence and review de novo its conclusions of law. Cummings v. Dep't of Licensing, 189 Wn. App. 1,10, 355 P.3d 1155 (2015). Substantial evidence is evidence sufficient to "persuade a fair-minded person of the truth of the declared premises." Id. We review the evidence and inferences from it "in the light most favorable to the party who prevailed in the highest forum that exercised fact-finding authority" and will not "disturb findings of fact supported by substantial evidence even if there is conflicting evidence." Id. at 10-11 (quoting William Dickson Co. v. Puget Sound Air Pollution Control Agency, 81 Wn. App. 403, 411, 914 P.2d 750 (1996), and McCleary v. State, 173 Wn.2d 477, 514, 269 P.3d 227 (2012).

Norton assigns error to nearly all the Board's findings of fact and conclusions of law. But except as noted for specific findings below, Norton does not say why substantial evidence does not support those findings of fact, or why the findings do not support the conclusions of law. She has thus waived any assignments of error not noted below. See Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992) (holding a party waives an assignment of error they do not support with argument). Norton says for the first time in a footnote in her reply brief that substantial evidence does not support Finding of Fact 1.2, which states that Norton agreed to audits of her veterinary practice under the 2014 Agreed Order. She also says that the remaining findings do not support the trial court's conclusions that she committed unprofessional conduct. But "an issue raised and argued for the first time in a reply brief is too late to warrant consideration." Id. And unchallenged findings of fact constitute verities on appeal. Cummings, 189 Wn. App. at 10.

A. Motion to Suppress

Norton says for the first time on appeal that the Department searched the outdoor kennels in violation of article I, section 7 of the Washington Constitution and the Fourth Amendment to the United States Constitution. She says that the kennels were a part of her private residence, not her practice, so the search violated her right to privacy in her private affairs.¹ Thus, she claims, we should suppress the evidence related to the search.² The Department counters that she waived this issue, and that if she did not, the search was proper. We agree that Norton waived this issue. But even if we considered it, the claimed search was proper and we would decline to suppress the outdoor kennel evidence.

1. Waiver

An appellant in an administrative appeal may not raise issues they did not raise to the adjudicating agency except in these circumstances, none of which Norton claims to be present here:

(a) The person did not know and was under no duty to discover or could not have reasonably discovered facts giving rise to the issue;(b) The agency action subject to judicial review is a rule and the person has not been a party in adjudicative proceedings that provided an adequate opportunity to raise the issue;

(c) The agency action subject to judicial review is an order and the person was not notified of the adjudicative proceeding in substantial compliance with this chapter; or

(d) The interests of justice would be served by resolution of an issue arising from:

(i) A change in controlling law occurring after the agency action; or

(ii) Agency action occurring after the person exhausted the last feasible opportunity for seeking relief from the agency.

RCW 34.05.554.

In King County v. Washington State Boundary Review Bd. for King County, our Supreme Court offered policy justifications for not considering arguments a party fails to raise to the agency:

[R]eversal of an agency on grounds not raised before the agency could have a seriously demoralizing effect on administrative conduct. Knowing that even decisions made with the utmost care might be reversed on heretofore undisclosed grounds, administrative agencies could become careless in their decisionmaking. Enforcing RCW 34.05.554 thus serves important policy goals associated with the integrity of the administrative process.

122 Wn.2d 648, 668-69, 860 P.2d 1024 (1993).

Norton says we may consider her...