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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 206 September Term, 2005 ___________________________________

MARYLAND DEPARTMENT OF AGRICULTURE, BOARD OF VETERINARY MEDICAL EXAMINERS v. KIM HAMMOND ___________________________________ Murphy, C.J., Woodward, Bloom, (RETIRED ,

SPECIALLY ASSIGNED )

JJ. ___________________________________ Opinion by Woodward, J. ___________________________________ Filed: September 13, 2006

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 206 September Term, 2005 ___________________________________

MARYLAND DEPARTMENT OF AGRICULTURE, BOARD OF VETERINARY MEDICAL EXAMINERS v. KIM HAMMOND ___________________________________ Murphy, C.J., Woodward, Bloom, (RETIRED ,

SPECIALLY ASSIGNED )

JJ. ___________________________________ Opinion by Woodward, J. ___________________________________ Filed:

This appeal arises from a Memorandum Opinion and Order issued by the Circuit Court for Baltimore County, reversing the Decision and Order of the Board of Review of the Department of Agriculture ("Board of Review") in a disciplinary action against appellee, Kim Hammond, D.V.M. In its decision, the Board of Review affirmed an

earlier decision of the Secretary of the Department of Agriculture ("Secretary"), which had affirmed a Decision and Order of the State Board of Veterinary Medical Examiners ("SBVME") that appellee's conduct towards a veterinary technician in his employ violated COMAR 15.14.01.04. The circuit court reversed the Board of

Review's decision on the grounds that the standard of review governing appellee's appeal to the Board of Review was de novo, and therefore the Board of Review erred by basing its decision solely on a review of the record before the SBVME. Appellant, the Maryland Department of Agriculture,1 presents two questions with three sub-parts for our review, which we have distilled into the following issues: I. Whether the circuit court erred in ruling that the appeal to the Board of Review was de novo and that the Board should have conducted an independent reexamination of the case rather than a review of the record. Whether the agency's decision that appellee violated the standard of conduct articulated in COMAR 15.14.01.04 is lawful and supported by substantial evidence.

II.

Finding error on question I, we reverse the judgment of the circuit
1

Appellant brings this appeal on behalf of the SBVME pursuant to Maryland Code (1973, 1999 Repl. Vol.), section 2-105 of the Agricultural Article.

court and remand the case for further proceedings consistent with this opinion. Because of our determination as to question I, we

decline to address question II. FACTS AND PROCEEDINGS The Incident2 Appellee owns and operates the Falls Road Animal Hospital ("FRAH"). Shannon Gallagher worked at the FRAH as a technician and was employed in that position for a few months prior to the incident in question. Gallagher's duties at FRAH involved She was

rendering auxiliary or supporting veterinary assistance.

a conscientious employee who enjoyed her job and co-workers. On July 11, 2000, appellee observed Gallagher inadvertently choking a cat that she was holding during an attempt to draw blood from the cat. Appellee grabbed Gallagher's hand, releasing the cat from her hold. Immediately Gallagher's Appellee was angered by the incident. thereafter, without requesting two or obtaining against

consent,

appellee

pressed

fingers

Gallagher's trachea to show her how uncomfortable her hold had been on the cat. Although appellee did not compromise Gallagher's

breathing, he did cause her to feel discomfort and anxiety. After appellee released Gallagher, she left the treatment

The facts set forth in this section of our opinion are taken from the findings of the SBVME. We note that these factual findings, which gave rise to the disciplinary action against appellee, are hotly contested by appellee.

2

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area.

Gallagher was shaken, stunned, and scared by appellee's Shortly thereafter, and as a result of the incident with

actions.

appellee, Gallagher resigned her position at the FRAH. The Charge On March 19, 2001, the SBVME notified appellee, in writing, that it had conducted an investigation of the July 11, 2000 incident involving Gallagher. follows: Enclosed please find a charge alleging that, in placing your hands upon a technician you employed in the manner described above, you did not conduct yourself in relation to the public, your colleagues, and the allied professions so as to merit their full confidence and respect, a violation of COMAR 15.14.01.04. The SBVME further notified appellee of the proposed sanction3 accompanying the alleged violation, as well as appellee's right to have a hearing on the charge or to waive a hearing and accept the proposed penalty. On August 21, 2001, appellee moved to dismiss the SBMVE's complaint on the grounds that no authority existed in COMAR The SBVME advised appellee as

15.14.01.04 or in any statute to support the charge brought against

3

With respect to the proposed sanction, the SBVME advised:

Please also note the proposed sanction for this charge, that being: (1) The imposition of a civil penalty in the amount of five hundred dollars ($500); (2) The suspension of your license to practice veterinary medicine in this State for a period of two weeks, which suspension, however, is stayed; and (3) The placement on probation for a period of five years with the condition that you observe all laws and regulations governing the practice of veterinary medicine in this State.

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him.4 The SBVME's Decision and Order On August 23, 2001, the SBVME held a contested case hearing in the disciplinary action filed against appellee. Appellee was

represented by counsel and an Assistant Attorney General was "the presenter of evidence." Testimony was taken from six witnesses,

including Gallagher, appellee, and two eyewitnesses called by appellee. Among the joint exhibits admitted into evidence were two reports of the SBVME's investigator containing summaries of

interviews with Gallagher, appellee, and one eyewitness. Following the hearing, the parties submitted proposed findings of fact and conclusions of law for the SBVME's consideration. Thereafter, on November 20, 2001, the SBVME issued a Decision and Order pursuant to its authority to oversee the practice of veterinary medicine in the State under Maryland Code (1973, 1999 Repl. Vol.), sections 2-310 and 2-310.1 of the Agricultural

Article. (hereinafter "Agric. Art.,

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