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 pen alty. We affirm in part

, reverse in part, and

modify the 2015 Final Order, reducing Hammad’s civil penalty to $15,000

.

Hammad is license d to practice veterinary medicine in Pennsylvania.

On February 28, 2013, a hearing examiner issued a proposed adjudication and order

impos ing a $5

, 000 c ivil penalty on Hammad and suspend ing his veterinary license for2

two years, with six months of the suspension active and the remainder stayed, subject

to a like period of probatio n with specified terms and conditions

. T he stay , however,

was conditioned on Hamm a d 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 T he Board served

the 2013 Final O rder on Hamm a d by mail . Hammad failed to remit the civil penalty

, and, o n July 19, 2013, the Department of State (Department) requested that Hamm a d

immediately return his veterinary license, wall certificate

, and wallet car d to the

Board.

In August 2013, Francis Peirce, a professional conduct investigator
employed by the Department’s Bureau of Enforcement and Investigation, 2 was
assign ed to investigat e Hammad. Peirce was instructed to serve Hammad with

another copy of the 2013 F inal O rder, retrieve his licensure document s , 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. Specifi cally, 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 Boar d.3

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 th e 2013 Final O rder

,
collect Hammad’s licensure documents

, and inspect his records

.

Hammad informed Peirce th at he was still practicing veterinary

medicine . Peirce explained to Hammad that Hammad’s license was suspended and

he was not permitted to prac tice, 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 licens ur e documents

, and Hammad refused

.
Peirce provided Hammad with a copy of the Board’s 2013 F inal O rder.

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 conta ining 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 ve terinary medicine because his license was suspended.

Hammad responded that he was going to continue to practice. Peirce left the office.

In November 2013, Peirce investigate d 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 pi lls and the4

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 worse ned and Humeas, fearing the cat

would di e, took Cambria to an emergency vet erinary clinic for treatment.

On February 20, 2014, Peirce sent Hammad a letter informing him that

Peirce was investigatin g a complaint against him . Peirce ask ed Hammad to contact

him to set an appointment for a n interview. On February 25, 2014, Hammad

acknowledg ed receipt of the letter and request ed a formal copy of the complaint and

all information about the veterinarian who wa s supporting the complaint so that he

could file a c omplaint 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 sch eduled a he aring for August 6, 2014

.5

I n 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 greet ed by a young man who went into the

back office when Peirce asked if Hammad was there. Upon return ing , 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 off

ice 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, t he 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 Fina l Order. T he6

Board found that : the 2013 F inal O rder was dated May 29, 2013 ; the 30

- day appeal

period expired on June 28, 2013 ; the re was no evidence that Hammad obtain ed a stay
or supersedeas of the suspension imposed by the 2013 F inal O rder or of Hammad’ s
successful appeal of th e 2013 F inal O rder ; Hammad’s license remained suspended ;

Hamma d 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 Boar d 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 th e 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 veter inarian 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 th e 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).7

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 order ed 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 bef ore 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
thi s 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. §704.8

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 Administrativ e 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 lie s with the Board.

Id. (f ootnotes omitted)

. Thus, the Board did not err in designating a hearing officer to

conduct Hammad’s hearing.

D ue 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 Hamm a d on May 15, 2014, scheduling a hearing before a hearing

examiner at 9:30 a.m. on August 6, 2014. Hammad was inf ormed 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 $5,0 00. Id. at __, slip op. at 1.9

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.

H ammad 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 a sserts that t he 2015 Final Order w as never authorized,

consented to, or acknowledged by the Board members. 10 Hammad asserts that there

were no Board meetings in January or Fe bruary 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, t he Board determined

that the hearing exam iner’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, con sistent 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 w ith 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

.10

written. The 2015 Final Order , whic h 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. Th erefore

, contrar y to Hammad ’ s assertion, the Board

authorized the 2 015 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, authorize s 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 delibera ted 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. §2205.11

63 P.S. §2205(b)(1) and (4).

Here, the Board assessed Hammad a $10,000 civil penal ty 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, an d a

second $5,000 civil penalty for Hammad’s failure to permit Peirce to inspect his

business premises.

T his court is not permitted to substitute its “ ‘ judgment for that of the

Board and, absent a flagrant abuse of discretion, will not interfere in discr etionary

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 f or Hammad’s failure to permit Peirce to inspect his business premises is not supported

by the record. The record is de void of any request by Peirce to inspect Hammad’s

business premises or the denial of any such request. Thus, we find that the Board

err e d in assessing this $5,000 civil penalty

.

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

___________________________________ ROCHELLE S. FRIEDMAN, Senior JudgeIN 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 :

O R D E R

AND NOW, this 17 th day of November , 201 5

, the January 13, 2015,

final order of the State Board of Veterinary Medi cine (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