South Carolina              
Administrative Law Court
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SC Administrative Law Court Decisions

CAPTION:
SCDLLR vs. Max Sundboell Mogens Dental License #003179

AGENCY:
South Carolina Department of Labor, Licensing and Regulation

PARTIES:
Plaintiff:
South Carolina Department of Labor, Licensing and Regulation, State Board of Dentistry

Defendant:
Max Sundboell Mogens Dental License #003179
 
DOCKET NUMBER:
94-ALJ-11-0236-CC

APPEARANCES:
Richard W. Simmons, II, Esq. for Plaintiff
 

ORDERS:

TEMPORARY RESTRAINING ORDER

This matter came before the Administrative Law Judge Division on Plaintiff's Complaint and Petition for Temporary Restraining Order requesting the issuance of a Temporary Restraining Order against the Defendant pursuant to S.C. Code Ann. Section 40-15-10, et seq. (Supp. 1993). A hearing was conducted on August 22, 1994 at 10:00 a.m. in conference room of the Division located at 1205 Pendleton Street in Columbia, South Carolina. The Plaintiff was represented by its Attorney of Record, Staff Counsel, Richard W. Simmons, II, and the Defendant was not present at this ex parte hearing. Based upon the testimony and evidence presented at the hearing, I make the following:

FINDINGS OF FACT

David M. Addison is an investigator for the Board of Dentistry. On August 18, 1994 he received information from two agents with the Department of Health and Environmental Control's Bureau of Drug Control about Dr. Mogens' attempt to obtain demerol and morphine from various pharmacies in the Myrtle Beach area to conduct an emergency dental procedure on his patient, a live-in girlfriend who was with him when he tried to obtain the narcotics. Based upon the conversation with Brett Schneider, the DHEC agent an investigation/inspection was conducted pursuant to S.C. Code Ann. Section 40-15-190 (Supp. 1993).

Participating in the investigation was David Addison and the two DHEC investigators. On Friday, August 19, the investigators met with Dr. Mogens at his office. They observed the office in disarray with papers scattered around. A live rabbit also had free run of the office. Numerous rabbit droppings were present and vials of narcotics were contaminated with rabbit food. Dr. Mogens moved slowly and his speech was monotone. His pupils were dilated indicating the presence of some drug in his system. The investigators identified themselves and the purpose of the visit. The Defendant was informed of his rights and subsequent to Defendant's voluntary waiver of his right to counsel, he was questioned. During this questioning it became readily apparent that the Defendant was under the influence of controlled substances and was exhibiting symptoms of impairment. Defendant admitted to being under the influence of several controlled substances: Valium and Dihydro Codeine Bitartrate.

In the course of his dental practice, Defendant admitted to combining various controlled substances, testing these combinations upon himself, and administering the combinations of controlled substances to his patients during intervenous anesthesia. When mixing the combinations of narcotics the Defendant the gave them "street" names such as "Headbanger" and "Hang Glider".

During Woodstock 1994, the Defendant packed an emergency kit and other items. He purchased a vial or vials of Demerol for the trip. He admitted to the investigators that he used Demerol for purposed other than medicinal self-administering 50 mg. of Demerol.

The investigator for the Board asked the Defendant to cancel his appointments for that day which had been scheduled for the morning and the afternoon. He also requested that the appointment scheduled for Saturday, August 20 and Sunday, August 21 to be cancelled. The investigator learned that subsequent to questioning Defendant, he was placed under arrest.

The Defendant was not present at the hearing nor was he represented by counsel because he has been incarcerated since Friday, August 19, 1994. The investigator for the Board did not know whether the Defendant had been released or whether he has obtained counsel. Counsel for the Board previously represented to the Division that he was trying to determine if the Defendant had counsel.

CONCLUSIONS OF LAW

Rule 65 of the South Carolina Rules of Civil Procedure governs the issuance of injunctions and temporary restraining orders. It provides that a temporary restraining order must not be issued without notice to the adverse party unless it clearly appears that immediate and irreparable injury, loss or damage will result before notice can be served and a hearing scheduled. See Baines v. City of Danville, 337 F.2d 579 (4th Cir. 1964), aff'd 384 U.S. 890 (1966)( An ex parte application for a restraining order may be granted only where it appears that the applicant will suffer irreparable injury before notice to the adverse party and a hearing can be had.)

An ex parte order is reserved for those rare occasions where no adverse interest exists or where exigent circumstances dictate that action be taken prematurely. Herring v. Credit Bureau of Columbia, S.C., 277 S.C.368, 252 S.E.2d 123 (1979). In the present case, there are exigent circumstances. The dentist admitted to mixing narcotics to obtain the best effects for anesthetic purposes and administering the mixtures to his patients. He made numerous attempts to obtain demerol and morphine to perform a procedure on his patient who accompanied him while trying to obtain the narcotics. He was under the influence of narcotics the morning the investigators interviewed him and had planned to see his patients while in an impaired condition. He clearly was a danger to his patients and his ability to perform his duties was diminished substantially. The Board had reason to investigate pursuant to Section 40-15-190(3).

After consideration of the arguments presented by Counsel for Plaintiff, the pleadings and affidavits filed in this action, the testimony and the exhibits and the applicable law, I find and conclude that the allegations of the Plaintiff and the admissions of Defendant, if proven to be true, constitute an immediate and serious danger to the public health, safety, and welfare. This Court further finds and concludes that the danger presented by Defendant's alleged actions and admissions requires the extraordinary measure of temporarily suspending Defendant's license to practice dentistry in this state pending further proceedings. S.C. Code Ann. Section 40-15-370, and Section 40-15-380 (Supp. 1993).

ORDER

IT IS ORDERED that Defendant Dr. Max S. Mogens, effective August 22, 1994, is temporarily restrained and enjoined from engaging in the practice of dentistry until Thursday, September 1, 1994 at 5:00 p.m. when this restraining order expires unless before that time the Order for good cause shown is extended, or unless the Defendant consents that it may be extended for a longer period.

IT IS FURTHER ORDERED that an evidentiary hearing will be conducted at the Edgar A. Brown Building, 1205 Pendleton Street, Columbia, South Carolina in Room 219, commencing at 3:30 p.m., Monday, August 29, 1994, to determine what, if any, further equitable relief should be granted in this matter pending the outcome of other proceedings involving the Defendant before the Board of Dentistry.

IT IS FURTHER ORDERED that except for the fact that the Defendant has been temporarily suspended and any other action expressly authorized to be released as public information, all pleadings, records, testimony, orders, and other matters related to this proceeding shall be kept strictly confidential in accordance with S.C. Code Ann. Section 40-15-215 (Supp.1993).

AND IT IS SO ORDERED.



_____________________________

ALISON RENEE LEE

Administrative Law Judge

Columbia, South Carolina

August 22, 1994


Brown Bldg.

 

 

 

 

 

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