dissenting.
The majority holds that petitioner waived his right to the hearing that the Board is required to provide by ORS 683.155(1), and admitted the allegations against him. I disagree and, therefore, respectfully dissent.
OAR 137-03-001(2) obligates the Board to include in the notice of opportunity for a contested case hearing a
“statement that if a request for hearing is not received by the agency within 21 days of the date of mailing or other service of the notice, the person shall have waived the right to a hearing under ORS chapter 183, except as provided in OAR 137-03-075(6) and (7).” (Emphasis supplied.)
The Board’s notice stated, as material:
“5. Licensee has the right, if licensee requests, to have a contested case hearing pursuant to ORS chapter 183 and OAR 137 (the Attorney General’s Model Rules of Procedure). Such a request must be made in writing and must be received in the Board’s office no more than 21 days after the date of mailing or other service of this notice. If not so received, licensee’s right to a hearing under ORS chapter 183 and OAR chapter 137 will he waived. * * *
“6. Am answer to this notice is requested, pursuant to OAR 852-01-015. Failure to deny or defend these allegations will result in waiver and admission of the allegations.”1 (Emphasis supplied.)
*74The notice does not explain whether the term “waiver” in the last sentence is a redundant reference to the accompanying phrase “admission of the allegations,” or, instead, refers to the waiver of hearing mentioned in the previous paragraph. What is clear from the notice is that the ambiguous consequence of “waiver” and the “admission of the allegations” would occur only if petitioner failed to “deny or defend” the allegations.
Petitioner did not fail to “deny or defend” the allegations. He was unrepresented by an attorney. He timely submitted a letter that responded precisely to the request that he answer the notice, and either deny or defend the allegations. The letter said:
“Enclosed is my licence (sic), surrendered to you.
“I do not deny these allegations.
“I apologize to these patients, to the board and to the profession. My only defense is that I have been suffering some severe emotional turmoil. Accordingly, I request that you consider granting me an inactive status licence (sic), rather than a permanent revocation, so that I can pursue treatment. ’ ’
Petitioner did not deny the allegations, but he offered, in his words, a defense, i.e., that he had been “suffering some severe emotional turmoil.” He asked that the Board grant him an inactive license status and not order revocation so that he could pursue treatment. The notice said that he could avoid the consequences of waiver and admission of the allegations by submitting a timely defense. The Board cannot insist that he waived his hearing right despite his timely assertion of a defense.
The majority notes that the letter did not request a hearing. I agree. The issue is whether petitioner “waived the right to a hearing,” within the meaning of OAR 137-03-001(2) and the Board’s notice.2 A waiver is the intentional relinquishment of a known right. Drews v. EBI Companies, *75310 Or 134, 150, 795 P2d 531 (1990). We may not infer a waiver from equivocal words or conduct.
“[Waiver] must be manifested in some unequivocal manner.
“ ‘To make out a case of waiver of a legal right there must be a clear, unequivocal, and decisive act of the party showing such a purpose or acts amounting to an estoppel on his part.’ ” Waterway Terminals v. P.S. Lord, 242 Or 1, 26, 406 P2d 556 (1965).
Petitioner’s letter said nothing about waiving his right to a hearing. The notice told petitioner that he would avoid a waiver by asserting a defense. He did that. The state makes no claim that it was misled, to its prejudice, into believing that he did not want a hearing. See First National Bank v. Stretcher, 169 Or 532, 538, 129 P2d 830 (1942). Under the circumstances, I cannot conclude that he intentionally relinquished his hearing right.
For similar reasons, I cannot say that petitioner admitted the Board’s allegations. His statement that he “did not deny” the allegations is legally distinct from an affirmative admission that the allegations are true. He timely asserted a defense, and the notice informed him that that would avoid an admission that the allegations are true. Even if the Board were authorized to “deem” a failure to deny or defend allegations to be admission of them, it cannot do so on these facts.
Petitioner retained an attorney who notified the Board that petitioner requested a hearing. Under the circumstances, the Board cannot deny petitioner his right to a contested case hearing. ORS 683.155(1); ORS 183.415(1).
I dissent.
The statement in the notice that a “[flailure to deny or defend these allegations will result in waiver and admission of the allegations” is not accurate. OAR 852-01-015(2) provides, as material:
“(2) Except for good cause:
“(a) Factual matters alleged in the notice and not denied in the answer shall be presumed admittedf.]”
Contrary to the Board’s notice, the rule creates a presumption of admission, and permits a party who does not deny an allegation to overcome the presumption on a showing of good cause. The Board did not afford petitioner that right. The Board cites no authority for the terms of its notice that deviate from OAR 852-01-015(2).
The majority refuses to decide whether a waiver occurred, asserting that “[t]hat is not the issue.” 125 Or App at 70 n 4. That view ignores the text of the governing rule as well as the Board’s repeated references to waiver in its notice. Although lawyers may recognize the technical distinction between a “request for hearing” and an “answer” to the Board’s notice, we cannot make that assumption for petitioner, who is not an attorney.