Homoly v. N.C. State Bd. of Dental Examiners, (95-358) 03/05/1996

NO. COA95-358

NORTH CAROLINA COURT OF APPEALS

Filed: 5 March 1996

Paul A. Homoly, D.D.S.,

    Petitioner-Appellant,

     v.

North Carolina State Board of

Dental Examiners,

    Respondent-Appellee.

     Appeal by petitioner from judgment entered 5 October 1994 and amended 3 November 1994 by Judge Henry W. Hight, Jr., in Wake County Superior Court. Heard in the Court of Appeals 23 January 1996.

    Hafer, McNamara, Caldwell, Carraway, Layton & McElroy, P.A., by Edmond W. Caldwell, Jr.; and White, Getgey & Meyer Co., L.P.A., by Frank R. Recker, for petitioner appellant.

    Bailey & Dixon, L.L.P., by Ralph McDonald and Denise Stanford Haskell, for respondent appellee.

    SMITH, Judge.

    Petitioner, a licensed dentist, seeks appellate review of a superior court order affirming the North Carolina State Board of Dental Examiners final agency decision to suspend his license for five years, with a conditional reinstatement after 30 days. The Board suspended petitioner's license following a hearing conducted in response to complaints filed by several of petitioner's former patients relating to dental implants.

    On 4 September 1992, the Board sent a notice of hearing to petitioner. On 13 October 1992, the Board filed an amendment to notice of hearing and on 6 January 1993, the Board filed a second amendment to notice of hearing. An administrative hearing was conducted by the Board on 16 January 1993 and on 6 May 1993, the Board issued a final agency decision suspending petitioner's license for violations of N.C. Gen. Stat. §§ 90-41(a)(12), 90-40 and 90-41(a)(6).

    Petitioner filed a petition seeking judicial review pursuant to N.C. Gen. Stat. § 150B-43 on 9 June 1993, and a stay of the Board's decision was entered by the trial court on that same day. The case was heard on 26 September 1994, and in a 4 October 1994 judgment, the trial court affirmed the Board's decision. On 3 November 1994, the trial court entered an amendment to judgment.

    In his assignments of error, petitioner contends that the trial court erred in concluding (1) that N.C. Gen. Stat. § 150B-22 did not apply to the dispute which is the subject of this appeal, and (2) that the Board's failure to comply with that statutory section did not constitute prejudicial error. After carefully reviewing the relevant statutory sections, we disagree and affirm.

    The Board of Dental Examiners (the Board) is an agency governed by the provisions of the North Carolina Administrative Procedure Act (NCAPA). See N.C. Gen. Stat. § 150B-1(c) (1995). The Board is not exempt from the contested case provisions of NCAPA. See N.C. Gen. Stat. § 150B-1(e) (1995). However, from the foregoing premises, it does not follow, as petitioner argues, that § 150B-22 applies to the Board.

    N.C. Gen. Stat. § 150B-22 is contained within Article 3 of the NCAPA. Article 3 is entitled "Administrative Hearings," and governs administrative hearings which are conducted by the Office of Administrative Hearings (OAH) and are heard by an administrative law judge (ALJ). Article 3A of the NCAPA is entitled "Other Administrative Hearings," and governs hearings involving the following agencies:

    (1)    Occupational licensing agencies;

    

    (2)