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“Subjective belief” no defense to unlicensed practice charge

A dentist who mistakenly believed the state dental board had received his license renewal forms could not use that belief as a defense against a charge of unlicensed practice, the Iowa Court of Appeals ruled

on September 5 (Hagen v. Iowa Dental Board).

The dentist, Marc Hagen, has continually practiced in Iowa since 1996. With his license set to expire in August 2010, Hagen attempted to mail his $315 license fee and renewal forms. However, the board never received them.

Then, in March of 2011, an insurance company inquired with the board about Hagen’s license, which had, by that time, lapsed. Hagen immediately ceased practicing. However, the damage was done; the board filed unlicensed practice charges against the dentist in December 2011. After a hearing, the board cited Hagen and fined him $500.

Hagen, concerned about the insurance ramifications of the board’s decision, appealed; eventually the case reached the state Court of Appeals.

In his appeal, Hagen claimed that his alleged posting of the renewal paperwork created a legal presumption, on his behalf, that the board had received it. However, Judge Mary Tabor wrote in her opinion for the court, for license renewals, in order to benefit from the “mailbox presumption,” as the legal presumption is called, proof of the mailing must be provided.

Although Hagen had purchased a check payment from his bank and kept his receipt, he was unable to produce any evidence that he had actually mailed his paperwork. With no evidence that he had mailed his renewal forms, Hagen could not benefit the presumption.

Hagen also argued that the board erred when it sanctioned him despite his good faith effort to renew his license; his subjective belief that he had renewed, he claimed, should have protected him from a charge of unlicensed practice.

In response, Judge Tabor noted that the express language of the unlicensed practice statute did not require the board to consider Hagen’s state of mind but only whether he had, in fact, practiced while not in possession of a current license.

If the board was required to consider whether Hagen knew he not renewed his license, she continued, “any licensee who inadvertently forgot to take the necessary steps to renew his license would be immune from disciplinary action.”