NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
EHSAN POURSHIRAZI, Appellant,
v.
ARIZONA STATE BOARD OF DENTAL EXAMINERS, Appellee.
No. 1 CA-CV 22-0351
FILED 1-31-2023
Appeal from the Superior Court in Maricopa County
No. LC2021-000228-001
The Honorable Daniel J. Kiley, Judge Retired
AFFIRMED
COUNSEL
Law Office of Jeffrey J. Tonner, LLC, Phoenix
By Jeffrey J. Tonner
Counsel for Appellant
Arizona Attorney General’s Office, Phoenix
By Seth Hargraves
Counsel for Appellee
POURSHIRAZI v. STATE
Decision of the Court
MEMORANDUM DECISION
Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass
joined.
B A I L E Y, Judge:
¶1 Ehsan Pourshirazi, D.D.S., appeals the superior court’s
judgment affirming the final decision by the Arizona State Board of Dental
Examiners (“the Board”) suspending his dental license. For the following
reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 The Arizona Administrative Code (“A.A.C.”) permits a
dentist with a board-issued Section 1304 permit to use a physician
anesthesiologist or a certified registered nurse anesthetist (“CRNA”) to
provide anesthesia or sedation services in the dentist’s office. A.A.C. R4-
11-1304(A).1 It is undisputed that Pourshirazi did not have a Section 1304
permit. Despite lacking that required permit, Pourshirazi advertised the
availability of anesthesia and sedation services and employed a CRNA to
administer anesthesia or sedation services at his office.
¶3 In 2019, the CRNA administered sedation to a patient in
Pourshirazi’s office. During administration and while Pourshirazi was
absent from the procedure room, the patient stopped breathing. An
ambulance transported the patient to the hospital, where she later died.
¶4 Pourshirazi self-reported the event to the Board. The Board
issued a complaint alleging Pourshirazi engaged in unprofessional conduct
constituting a danger to the public health and safety, and advised
1 To obtain a Section 1304 permit, a dentist must provide confirmation
of recently completed relevant coursework, maintain appropriately
educated staff and proper equipment on the premises, and undergo an
onsite evaluation by the Board. A.A.C. R4-11-1304(B). After receiving the
permit, the dentist must “continuously supervise the patient from the
administration of anesthesia or sedation until termination of the anesthesia
or sedation procedure and oxygenation, ventilation and circulation are
stable.” A.A.C. R4-11-1304(G).
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POURSHIRAZI v. STATE
Decision of the Court
Pourshirazi that his conduct constituted grounds for disciplinary action.
Following a hearing, an Office of Administrative Hearings administrative
law judge concluded that Pourshirazi had engaged in unprofessional
conduct and recommended discipline of censure, continuing education,
and a fine.
¶5 The Board considered the administrative law judge’s
recommended decision and found that Pourshirazi engaged in
unprofessional conduct. As discipline, the Board ordered a six-month
suspension, probation, a three-year restriction on applying for a future
sedation permit, continuing education, a fine, and reimbursement of
administrative-hearing costs. The Board rejected Pourshirazi’s petition for
rehearing or review.
¶6 Pourshirazi appealed the Board’s decision to the superior
court, which affirmed. The court specifically found that the evidence
justified the Board’s decision and that the Board did not act in an arbitrary
and capricious manner.
¶7 We have jurisdiction over Pourshirazi’s timely appeal under
Arizona Revised Statutes (“A.R.S.”) section 12–913 and Rule 13,
JRAD. See Svendsen v. Ariz. Dep’t of Transp., 234 Ariz. 528, 533, ¶ 13 (App.
2014).
DISCUSSION
¶8 In reviewing the Board’s final decision, we will affirm unless
it “is contrary to law, is not supported by substantial evidence, is arbitrary
and capricious or is an abuse of discretion.” A.R.S. § 12-910(F). We defer
to the Board’s factual findings if supported by substantial evidence and
consider the evidence in the light most favorable to upholding the final
decision. Waltz Healing Ctr., Inc. v. Ariz. Dep’t of Health Servs., 245 Ariz. 610,
613, ¶ 9 (App. 2018).
I. The Board’s Decision Was Not Arbitrary and Capricious.
¶9 Pourshirazi does not challenge the Board’s finding that he
engaged in unprofessional conduct or the disciplinary imposition of
continuing education, a fine, and reimbursement of the administrative-
hearing costs. He also does not argue the Board was not permitted to
suspend his license. Instead, he argues the Board’s decision suspending his
license for six months and prohibiting him from applying for a sedation
permit for three years was arbitrary and capricious compared to another
dentist whose conduct the Board addressed later at the same meeting.
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POURSHIRAZI v. STATE
Decision of the Court
¶10 The Board is authorized to take disciplinary action against a
dentist for unprofessional conduct. A.R.S. § 32-1263(A)(1). Such action may
include, but is not limited to, license revocation, suspension, restrictions,
and a decree of censure. A.R.S. § 32-1263.01(A). When a board imposes
discipline that falls within the permissible range, such discipline can be
found—although rarely—arbitrary and capricious if the discipline is out of
proportion to the discipline imposed on those who are similarly situated.
Maricopa Cnty. Sheriff’s Off. v. Maricopa Cnty. Emp. Merit Sys. Comm’n
(Juarez), 211 Ariz. 219, 222, ¶ 16 n.6 (2005); Pinal Cnty. v. Pinal Cnty. Emp.
Merit Sys. Comm’n (Serb), 211 Ariz. 12, 18, ¶ 18 (App. 2005), disapproved in
part by Juarez, 211 Ariz. at 223-24, ¶¶ 20-21 & n.7. Courts comparing
discipline for similarly situated licensees consider whether both licensees
were in similar factual circumstances, had the same supervisors, and
whether the same behavioral standards apply. See Serb, 211 Ariz. at 18,
¶ 18; see also Maricopa Cnty. v. Gottsponer, 150 Ariz. 367, 372-73 (App. 1986),
disapproved in part by Juarez, 211 Ariz. at 223-24, ¶¶ 18-21; Taylor v. Ariz. Law
Enf’t Merit Sys. Council, 152 Ariz. 200, 207-08 (App. 1987); Bishop v. Law Enf’t
Merit Sys. Council, 119 Ariz. 417, 422 (App. 1978) (stating that the merit
council is not bound to deal with all cases at all times in the same manner
even if some past case might seem comparable).
¶11 Here, Pourshirazi argues the Board considered another dental
disciplinary case at the same hearing in which the other dentist’s assistant
injected a toxic level of a dental sedative in a patient, killing him. That
dentist, however, possessed a valid Section 1301 general anesthesia and
deep sedation permit, which allowed him to administer general anesthesia
and sedation. See A.A.C. R4-11-1301. The Board ordered that dentist
surrender his Section 1301 permit with no suspension of his dental license
and permitted him to apply for a new Section 1301 permit after one year.
Pourshirazi argues that his own case was far less egregious, yet he received
far greater sanctions.
¶12 We agree with the superior court that the record does not
support a finding that the other dentist and Pourshirazi were similarly
situated. Also, we cannot fully compare the two cases without reviewing
the entire case file of the other dentist, which is confidential and outside our
reach. See A.R.S. § 32-1263.02(M); Lipschultz v. Super. Ct., 128 Ariz. 16, 18
(1981), superseded in part by statute as recognized in State ex rel. Thomas v.
Ditsworth, 216 Ariz. 339, 342, ¶ 13 (App. 2007); Petras v. Ariz. State Liquor Bd.,
129 Ariz. 449, 451-52 (App. 1981). The other case was an unlitigated matter
that the Board and dentist resolved through a negotiated settlement
agreement and not through a formal hearing where the Board’s evidence
could be challenged. Further, that dentist possessed a Board-issued Section
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POURSHIRAZI v. STATE
Decision of the Court
1301 general anesthesia and deep sedation permit, which allowed him to
perform the procedure that patient received. The Board disciplined that
dentist for conduct that occurred during a procedure he was authorized
and qualified to perform. In contrast, the Board disciplined Pourshirazi for
performing a procedure he was not authorized to perform without a valid
Section 1304 permit. And the evidence presented does not suggest the other
dentist left the patient unsupervised during the procedure. The Board
addressed the behavior of the two dentists with different procedural
postures subject to two different standards of behavior. As such, the Board
did not act in an arbitrary and capricious manner in imposing a greater
discipline on Pourshirazi than on another dentist who was not similarly
situated.
II. The Evidence Supports the Findings of Fact.
¶13 Pourshirazi argues the evidence does not support the Board’s
findings of fact, referring to various comments Board members made
during the hearing that Pourshirazi claims mischaracterized his testimony
regarding his liability and willingness to be regulated. However,
Pourshirazi does not identify any particular findings of fact in the Board’s
final decision that he challenges. And none of the Board members’
comments negate Pourshirazi’s admitted failure to train for, apply, and
obtain a Section 1304 permit that Arizona law required to perform the
subject procedure. See A.A.C. R4-11-1304. Because Pourshirazi lacked the
requisite Section 1304 permit, he never should have performed the
procedure. These facts are sufficient to support the Board’s determination
that Pourshirazi engaged in unprofessional conduct and its suspension of
his dental license.
CONCLUSION
¶14 For the foregoing reasons, we affirm the superior court’s
ruling. See generally A.R.S. § 12-910(F). We award costs to the Board upon
compliance with Arizona Rule of Civil Appellate Procedure 21.
AMY M. WOOD • Clerk of the Court
FILED: AA
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