Lifetime Revocation too Severe a Penalty for Employing Capper

By April 2, 2012 April 1st, 2015 Dentistry

The Dental Board of California abused its discretion in imposing a lifetime license revocation on a dentist who engaged in “capping,” or paying a third person to procure patients, the Court of Appeal of California, Second Appellate District decided November 19 (Levon Solak v. Dental Board of California).

Although the board’s determination of misconduct was supported by substantial evidence, and capping is a felony in Ohio and some other states, the court returned the case to the board for reconsideration of the sanctions against the dentist, Levon Solak.

Following a police sting operation, authorities filed felony charges against Solak in December of 2007. His attorney instructed Solak to plead nolo contendere to the charges, in the apparently erroneous belief that such a plea would protect Solak from discipline by the board, which itself filed charges in May of 2008.

The case against Solak began with the criminal investigation of a “known ‘capper,'” Jairo E. Gonzalez, who authorities discovered was bringing patients into Solak’s clinic for a fee.

Enlisted by police into a sting operation, Gonzalez donned an electronic transmitter and went to Solak!s clinic to offer his services.

During their conversation, Solak said that “he wanted to do business with Gonzalez but he ‘wanted to do it right!” Solak insisted that Gonzalez sign a contract prepared by an attorney and that Gonzalez be put on payroll, “basically making everything legal.” Solak told Gonzalez that he was using another capper, adding that his current “marketer” did not bring as many patients into the office as Gonzalez.

The board used documentary evidence against Solak, as well as the testimony of the alleged capper, Gonzalez, who stated that although Solak paid him for “advertising,” Gonzalez only performed a capping service and never placed any advertisements for the dentist, “such as billboards, circulars, print or broadcast media.”

At the conclusion of the hearing, the board determined that Solak committed violations of Ohio’s dental practice act and issued a lifetime revocation of his license, stating as justification for the decision that because Solak expressed no remorse and maintains that he committed no wrong, it was likely “he may engage in similar conduct in the future.” Solak appealed twice, first to a trial court which found in favor of the board, then to the Court of Appeal.

That court agreed with the trial court’s determination that “the evidence is overwhelming that Solak paid Gonzalez and that he was doing so with another marketer.” But the court was more sympathetic to Solak’s second argument, that the sanctions imposed on him were an abuse of the board’s discretion.

In its decision, the court cited the dental board’s own rules regarding the appraisal of aggravating and mitigating factors. The board failed to consider Solak’s lack of a criminal record, his compliance with probation orders, his previously clean record, and the lack of evidence of substandard care of the patients involved in the capping.

The court also noted that the board failed to provide evidence as to how Gonzalez procured patients for Solak. “We think the way in which Gonzalez procured patients is relevant to the appropriate penalty. As agent Froeschner testified, ‘advertising’ is not capping. Yet, it is also true that advertising is not limited to billboards or print and broadcast media. The burden was on the dental board to support the penalty with sufficient evidence.”

Solak’s lack of remorse for his crimes should be taken with a grain of salt, the court said. His nolo contendere plea—which the board cited as evidence of his lack of remorse—was only his attorney’s attempt to shield Solak from discipline, an attempted legal trick and nothing more.

Last, the board ignored evidence that Solak had tried to rehabilitate himself, particularly the conversation he had with Gonzalez in which he tried to make legal their relationship by adding Gonzalez to the payroll.

“In short, given the circumstances of this case, it was a manifest abuse of discretion to impose the maximum penalty—the lifetime forfeiture of Solak’s dental license. Under the dental board’s disciplinary guidelines, even the minimum penalty requires proof that the ‘unlawful practice was extensive.’ The board’s showing on that issue was weak.” The dental board must impose an appropriate penalty, the court concluded.

© 2011 Professional Licensing Report, published by ProForum, a non-profit research group, www.plrnet.org. Reprinted by permission.

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