Department of Consumer & Industry Services v. Greenberg

586 N.W.2d 560 (1998) 231 Mich. App. 466

CONSUMER & INDUSTRY SERVICES, Bureau of Occupational and Professional Regulation, Appellee,
v.
William A. GREENBERG, Appellant.

Docket No. 202352.

Court of Appeals of Michigan.

Submitted June 2, 1998, at Lansing. Decided September 4, 1998, at 9:00 a.m. Released for Publication December 10, 1998.

Frank J. Kelley, Attorney General, Thomas L. Casey, Solicitor General, and Howard C. Marderosian, Assistant Attorney General, for Department of Consumer and Industry Services.

Maddin, Hauser, Wartell, Roth, Heller & Pesses, P.C. by Lori G. Talsky, Southfield, for William A. Greenberg.

Before SAWYER, P.J., and MICHAEL J. KELLY and DOCTOROFF, JJ.

PER CURIAM.

William A. Greenberg appeals as of right from a Board of Optometry Disciplinary Subcommittee order temporarily suspending his license, placing him on probation, fining him, and requiring that he perform community service work. The subcommittee sanctioned appellant after it found that he lacked good moral character, M.C.L. § 333.16221(b)(vi); MSA 14.15(16221)(b)(vi). The Department of Consumer and Industry Services had filed an administrative complaint against appellant after discovering that he had been convicted of two counts of criminal assault and battery involving his female employees. We affirm.

Appellant first argues that the complaint against him should have been dismissed because the subcommittee violated the requirement that it meet and impose a penalty on appellant within sixty days after receiving the hearing referee's proposal for decision. MCL 333.16232(3); MSA 14.15(16232)(3) requires that the subcommittee meet within sixty days after receiving the hearing referee's proposal for decision. However, this section does not provide for dismissal of a complaint whenever the subcommittee is tardy. The lack of sanction leads us to believe that the time frames set out and relied on by appellant are primarily guidelines for the disciplinary system at issue here. Although the use of "shall" usually indicates a mandatory requirement, Jordan v. Jarvis, 200 Mich.App. 445, 451, 505 N.W.2d 279 (1993), other statutory language and legislative intent indicate that "shall" in this instance is permissive. Murphy v. Sears, Roebuck & Co., 190 Mich.App. 384, 386-387, 476 N.W.2d 639 (1991). Although other provisions of the Public Health Code, 1978 PA 368, M.C.L. § 333.1101 et seq.; MSA 14.15(1101) et seq., impose a time frame for disciplinary complaint processing, none of the provisions provide for dismissal based on a violation of the deadlines. MCL 333.16241(8)(e); MSA 14.15(16241)(8)(e) explicitly contemplates that delays will occur within the various stages of the disciplinary process. Therefore, we conclude that the passage of more than sixty days, especially in the complete absence of any specific allegations of prejudice suffered by appellant, did not require dismissal of the complaint.

Appellant next contends that the subcommittee's rejection of the hearing referee's conclusion that appellant's actions warranted no disciplinary sanctions exceeded its permitted statutory scope of review. MCL 333.16237(4); MSA 14.15(16237)(4) addresses subcommittee review of a proposal for decision that concludes that sanctions should be imposed. No section of the Public Health Code conditions the subcommittee's power to sanction on a prior concurring conclusion by the hearing referee. See M.C.L. § 333.16216(3), (4); MSA 14.15(16216)(3), (4) and M.C.L. § 333.16226(2); MSA 14.15(16226)(2). Furthermore, M.C.L. § 333.16227(2); MSA 14.15(16227)(2) explicitly grants the subcommittee broad power to sanction or take additional disciplinary action. MCL 333.16237(3); MSA 14.15(16237)(3) grants the subcommittee discretion to review and revise proposals for decision. In light of these provisions, we conclude that the subcommittee did not violate any provision of the Public Health Code by rejecting the hearing referee's findings of fact and concluding, contrary to the referee, that appellant's actions warranted sanctions.

Third, appellant claims that the subcommittee's suspension of his optometry license for thirty days and its imposition of a $1,000 fine based on behavior for which he had already been criminally convicted violated double jeopardy. US Const, Am V; Const 1963, art 1, § 15. The federal and Michigan constitutional double jeopardy provisions "protect a person from being twice placed in jeopardy for the `same offense.'" People v. Torres, 452 Mich. 43, 63, 549 N.W.2d 540 (1996). "[T]he Double Jeopardy Clause does not prohibit the imposition of any additional sanction that could ... be described as punishment." Hudson v. United States, 522 U.S. 93, 118 S. Ct. 488, 493, 139 L. Ed. 2d 450 (1997). The clause protects against the imposition of multiple criminal punishments for the same offense. Id. The United States Supreme Court further stated:

Whether a particular punishment is criminal or civil is, at least initially, a matter of statutory construction. A court must first ask whether the legislature, "in establishing the penalizing mechanism, indicated either expressly or impliedly a preference for one label or the other." Even in those cases where the legislature "has indicated an intention to establish a civil penalty, we have inquired further whether the statutory scheme was so punitive either in purpose or effect," as to "transfor[m] what was clearly intended as a civil remedy into a criminal penalty." [Id. (citations omitted).]

This is a return to traditional double jeopardy analysis and a reversal of United States v. Halper, 490 U.S. 435, 109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989), which, until today, has been relied on by this Court, which had stated:

"[W]hether a given civil sanction constitutes punishment in the relevant sense requires a particularized assessment of the penalty imposed and the purposes that the penalty may fairly be said to serve. Simply put, a civil as well as a criminal sanction constitutes punishment when the sanction as applied in the individual case serves the goals of punishment." [People v. Artman, 218 Mich.App. 236, 245, 553 N.W.2d 673 (1996), quoting Halper, supra, at 448, 109 S. Ct. 1892.]

The subcommittee's suspension of appellant's license did not violate double jeopardy because it served the expressed legislative goal underlying the Public Health Code of protecting the public welfare, a nonpunitive purpose. Although the $1,000 fine does not directly benefit the public, appellant has failed to "make a threshold showing of punishment by demonstrating that the [fine] is overwhelmingly disproportionate to the government's damages and expenses." People v. Duranseau, 221 Mich.App. 204, 207-208, 561 N.W.2d 111 (1997). Therefore, we conclude that neither of these sanctions violated double jeopardy.

Finally, appellant argues that the subcommittee misinterpreted the statutory definition of good moral character and thus erroneously concluded that defendant lacked good moral character. We review questions of statutory interpretation de novo. People v. Givans, 227 Mich.App. 113, 124, 575 N.W.2d 84 (1997). MCL 333.16221(b)(vi); MSA 14.15(16221)(b)(vi) authorizes the subcommittee to impose sanctions after finding that a licensee lacks good moral character, defined by M.C.L. § 338.41(1); MSA 18.1208(1)(1) as "the propensity on the part of the person to serve the public in the licensed area in a fair, honest, and open manner."

While we find that the activity in question did not necessarily establish defendant's lack of good moral character, we note that defendant was found to have violated M.C.L. § 333.16221(a), (b)(xi), and (h); MSA 14.15(16221)(a), (b)(xi), and (h) in addition to M.C.L. § 333.16221(b)(vi); MSA 14.15(16221)(b)(vi). Any one of these violations authorized the same degree of punishment that defendant has received. MCL 333.16226; MSA 14.15(16226). Thus, the finding of a lack of good moral character by the subcommittee, in light of the other violations, amounted to harmless error. We conclude that appellant's two assault and battery convictions involving the employees of his optometry office were in violation of subsections 16221(a), (b)(xi), and (h) of the Public Health Code, as amended, and that the subcommittee's error in finding a lack of good moral character had no substantial effect on the disposition of this matter.

Affirmed.