DUI arrest conviction attorney lawyer law firm office for professional licensees

DUI arrest conviction attorney lawyer law firm office for professional licenseesRUVOLO, P.J.

I.

INTRODUCTION

Respondent Michael Edward Rose (Rose) is a licensed clinical social worker who was subjected to professional disciplinary proceedings by appellant Board of Behavioral Sciences (Board)1 after he suffered three drunk driving convictions within 11 years. After the Board issued its ruling, Rose brought a petition for writ of administrative mandamus (Code Civ. Proc., § 1094.5) challenging the Board’s decision suspending Rose from the practice of licensed clinical social work for a minimum of 30 days as a condition of his probation so that he can obtain and implement a psychiatric evaluation. The Alameda County Superior Court granted Rose the relief he requested, finding that Rose’s 30-day suspension was “not warranted under these circumstances.” The Board filed this appeal claiming the court erred in granting writ relief because “[t]he 30-day suspension as a condition of probation was not excessive and did not constitute an abuse of discretion.” We agree with the Board, and therefore, reverse the judgment.

II.

FACTS AND PROCEDURAL HISTORY

Rose has been a licensed clinical social worker since August 29, 2000. He has a private practice in Pleasanton, California conducting psychotherapy, crisis counseling, and risk assessment. He also works as a contract employee with the Pleasanton Unified School District and the Alameda County Probation Department. In his practice, he has worked with patients on issues of substance abuse and has run a drug diversion program for children.

Rose has a long history of alcohol abuse. He was first convicted of driving under the influence of alcohol on September 28, 1995. He was placed on probation for five years for that offense. On September 16, 2000, while Rose was still on probation for his first conviction, he was again arrested for driving under the influence of alcohol. When arrested, he had a blood-alcohol level of .23 percent, almost three times the legal limit. He was convicted of this second offense on June 26, 2001, and was placed on probation for another five years. On January 4, 2006, while Rose was still on probation for his second conviction, he was again arrested for driving under the influence of alcohol. This time when arrested, he had a blood alcohol level of .18 percent. He was convicted of this third offense on April 24, 2006, and was placed on probation for four more years.

On April 13, 2007, the Board brought an “Accusation” against Rose alleging unprofessional conduct for “conviction of a crime substantially related to the qualifications, functions, or duties of a licensee….” (Bus. & Prof.Code, § 4992.3, subd. (a).) On September 10, 2007, an evidentiary hearing was conducted before Administrative Law Judge Ruth S. Astle (ALJ). At the hearing, Rose admitted that he had a history of excessive drinking dating back to before 1995. He acknowledged that he is an alcoholic and will always be an alcoholic. Following his latest arrest, Rose entered a 30-day residential treatment program for alcohol dependence, which he successfully completed. A few months later, Rose again experienced alcohol cravings; and in July 2006 he entered yet another 30-day residential treatment program, which he successfully completed in August 2006. At the administrative hearing, he indicated that this program “saved my life.” He believed that he had overcome his addiction to alcohol, and stated “I’m not going to drink again.”

On or about September 20, 2007, the ALJ rendered a “Proposed Decision” finding that Rose’s latest conviction for driving under the influence of alcohol was “substantially related to the duties, qualifications and functions of [his] license as a clinical social worker” because he “is involved directly in alcohol abuse and drug counseling for teens and adults.” The ALJ recommended revocation of Rose’s license, with revocation stayed for a period of five years, during which time Rose would be subject to various probationary terms and conditions. These terms included ongoing psychotherapy, submission to testing for alcohol and controlled substances, notification of clients and employers regarding probation, probation monitoring, and a psychiatric evaluation by a psychiatrist chosen by the Board. The ALJ’s proposed decision also provided for a suspension from practice for at least 30 days “and such additional time as may be necessary to obtain and review psychological or psychiatric evaluation, [and] to implement any recommendation from that evaluation.” On December 20, 2007, with a slight clerical modification, the Board adopted the ALJ’s proposed decision in its entirety.

Rose filed a petition for reconsideration. The Board stayed the effective date of the decision until January 29, 2008. On January 28, 2008, the Board denied Rose’s petition for reconsideration, and the Board’s decision became final the following day, January 29, 2008.

Rose immediately filed a petition for administrative writ (Code Civ. Proc., § 1094.5) requesting the court to “vacate that portion of [the Board’s] decision suspending [Rose] from the practice of licensed clinical social work” for the 30-day period. At Rose’s request, the court ordered the Board to stay the operation of its decision pending the outcome of the administrative mandamus proceeding.

A hearing on the writ petition was held on June 23, 2008, before the Honorable Frank Roesch. Judge Roesch granted the administrative writ and vacated that portion of the Board’s decision relating to the 30-day suspension of Rose’s license. The court found that Rose’s “voluntary rehabilitative efforts, willingness to comply with all other aspects of the Decision and recognition of his problem considered together with the lack of any evidence in the record that [his] clients or the public have been harmed by his actions, indicate that an actual suspension is not warranted under these circumstances and not justified by any fact found in the Administrative Record.” The Board filed its notice of appeal on July 31, 2008.

III.

DISCUSSION

A. Standard of Review

As an initial matter, it is vital to note a court’s limited task when reviewing a writ petition, filed under Code of Civil Procedure section 1094.5, challenging a final decision following a hearing, the taking of evidence, and the exercise of agency discretion. “In exercising its independent judgment, a trial court must apply a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)

Courts give particular deference to the administrative agency with regard to any challenge to the type and/or level of discipline imposed by the final decision of the administrative agency. “When the superior court has conducted its review and has concluded that the agency properly found misconduct, the imposition of the appropriate penalty for that misconduct is left to the sound discretion of the agency. ‘The penalty imposed by an administrative body will not be disturbed in mandamus proceedings unless an abuse of discretion is demonstrated.’ [Citation.]” (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 53 (Kazensky ).)

The appellate court conducts a de novo review of the penalty assessed, giving no deference to the trial court’s determination. (Cummings v. Civil Service Com. (1995) 40 Cal.App.4th 1643, 1652 (Cummings ).) “[T]he appellate court reviews the agency’s selection of penalty and, if reasonable minds can differ with regard to the propriety of the disciplinary action, it finds no abuse of discretion. [Citation.]” (Deegan v. City of Mountain View (1999) 72 Cal.App.4th 37, 46.) “It is only in the exceptional case, when it is shown that reasonable minds cannot differ on the propriety of the penalty, that an abuse of discretion is shown.” (Id. at p. 47.)

To summarize, “ ‘Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed.’ [Citations.]” (Cummings, supra, 40 Cal.App.4th at p. 1652) “Judicial interference with the agency’s assessment of a penalty ‘will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion by the administrative agency.’ [Citation.]” (Kazensky, supra, 65 Cal.App.4th at p. 54.)

B. Propriety of 30-Day Suspension

In the hearing conducted in this matter, Rose admitted his criminal conduct and alcohol addiction. On appeal, he acknowledges that the Board has a “legitimate interest in imposing … discipline and in closely monitoring him.” Accordingly, he has “accepted the many conditions imposed on him by the terms of probation.” He only takes issue with the 30-day suspension imposed by the Board. On appeal, we are required to uphold the Board’s suspension if “ ‘justified by all the facts and circumstances being considered.’ [Citations.]” (Talmo v. Civil Service Com. (1991) 231 Cal.App.3d 210, 227.)

Rose’s long record of committing alcohol-related offenses followed by repeated instances of recovery and relapse speaks for itself. He has been continuously on probation for driving under the influence of alcohol since his first conviction in 1995. During that time, he has relapsed at least twice. Although Rose declared at the administrative hearing that he now has received treatment for his alcoholism and that he will never drink again, he has yet to establish that he has accomplished a meaningful and sustained recovery from his alcohol dependence. The Board was justified in its belief that Rose’s conduct reflected adversely on his fitness to practice licensed clinical social work and that strict probationary terms and monitoring were necessary to protect the public. As such, giving Rose a minimum of 30 days of suspension, during which time he would have to obtain and implement a psychological or psychiatric evaluation, appears to be more than reasonable.

Rose’s argument that the 30-day “suspension order is both arbitrary and punitive” is severely undercut by the Board’s own published “Disciplinary Guidelines,” included in the record before us, which the Board is mandated to consider. (Cal.Code Regs., tit. 16, § 1881.) The Disciplinary Guidelines authorize a 60-day actual suspension as the “minimum” sanction for conviction of a crime substantially related to the duties, qualifications, and functions of a licensee. In this case, the Board imposed a period of suspension that is half the number of days authorized by its own published disciplinary guidelines. Given the fact that this case is more aggravated than the typical case because Rose has been found guilty of a pattern of repeated drunk driving offenses, a 30-day suspension is clearly not “arbitrary and punitive,” as Rose claims.

In arguing that the 30-day suspension imposed by the Board was “a grossly unfair disciplinary order,” Rose points out that “[t]here was no finding here that Rose has ever engaged in conduct which harmed the public. He has, undoubtedly, harmed himself and will be subjected to extensive probationary terms which will meaningfully reduce any potential risk to himself or others in the future.”

In this case, the Board adopted an express finding that Rose’s most recent drunk driving conviction “substantially related to the duties, qualifications and functions” of his license as a clinical social worker” because “[h]e is involved directly in alcohol abuse and drug counseling for teens and adults.” There is no requirement that the Board make an additional finding that Rose failed to practice according to acceptable and prevailing standards of care or that his most recent alcohol-related offense adversely impacted his relationship with the teens and adults he counseled. There are numerous cases standing for the proposition that criminal violations may bear on one’s fitness to practice a particular profession, regardless of whether the violations are committed while the licensee performs professional duties. (See, e.g., Windham v. Board of Medical Quality Assurance (1980) 104 Cal.App.3d 461, 469 [conviction for income tax evasion]; Krain v. Medical Board (1999) 71 Cal.App.4th 1416, 1425 [conviction for solicitation of subornation of perjury]; Jennings v. Karpe (1974) 36 Cal.App.3d 709, 710 [conviction for engaging in oral sex with minor].)

Of pertinence to the case before us, in Griffiths v. Superior Court (2002) 96 Cal.App.4th 757 (Griffiths ), a physician claimed that the conduct at issue in that case, repeated drunk driving offenses, could not result in disciplinary action because there was no evidence he ever treated patients while under the influence or that he caused harm to any of his patients. (Id. at p. 771.) The court rejected that argument, noting that “[f]or a nexus to exist between the misconduct and the fitness or competence to practice medicine, it is not necessary for the misconduct forming the basis for discipline to have occurred in the actual practice of medicine.” (Ibid.) The appellate court rejected “the argument that a physician can seal off or compartmentalize personal conduct so it does not affect the physician’s professional practice. [Citation.]” (Ibid.)

The court further rejected the physician’s argument that he could not be disciplined because the Board had not demonstrated his patients had been harmed. (Griffiths, supra, 96 Cal.App.4th at p. 772.) “We reject this argument because it overlooks the preventative functions of license discipline, whose main purpose is protection of the public [citation], but whose purposes also include prevention of future harm [citation] and the improvement and rehabilitation of the physician [citation]. To prohibit license discipline until the physician-licensee harms a patient disregards these purposes; it is far more desirable to discipline before a licensee harms any patient than after harm has occurred.” (Ibid., original italics, fn. omitted.) In the case of a licensee who has a serious drinking problem, the licensing agency “cannot and should not sit back and wait until the [licensee’s] alcohol abuse problem begins to affect” his practice. (In re Kelley (1990) 52 Cal.3d 487, 495 (Kelley ).)

While we are not indifferent to the laudable recent efforts apparently being made by Rose to reverse the course of his conduct, we respect the cautionary note in Griffiths that we not allow Rose to compartmentalize his “personal” life from his “professional” life. (Griffiths, supra, 96 Cal.App.4th at p. 771.) Until the most recent past, Rose’s long history of drinking and driving is “behavior [that] evidences both a lack of respect for the legal system and an alcohol abuse problem. Both problems, if not checked, may spill over into [his] professional practice and adversely affect” the people he counsels. (Kelley, supra, 52 Cal.3d at p. 496.)

Having examined the administrative record, we conclude the discipline imposed by the Board was warranted in law and justified in fact. Consequently, our review of the record does not lead us to conclude, as the trial court did, that the Board abused its discretion in imposing a minimum 30-day suspension in order for Rose to obtain and implement a psychological or psychiatric evaluation. On the facts before us, the Board’s 30-day suspension was well within the range of authorized sanctions and cannot be found to be “ ‘arbitrary, capricious or [a] patently abusive exercise of discretion….’ [Citation.]” (Kazensky, supra, 65 Cal.App.4th at p. 54.) Consequently, “[e]ven if the penalty were to appear to be too harsh,” the trial court did not have the authority to substitute a more lenient sanction than the sanction imposed by the Board. (Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, 950.) Thus, when the trial court reversed the Board’s decision, it impermissibly substituted its discretion for that of the administrative agency.

IV.

DISPOSITION

The judgment is reversed. The trial court is directed to enter an order denying Rose’s petition for writ of administrative mandamus. Costs on appeal are awarded to the Board.

We concur: REARDON and SEPULVEDA, JJ.

All Citations

Not Reported in Cal.Rptr.3d, 2009

Footnotes

  1. The Board is described as a “consumer protection agency with the primary mission of protecting consumers by establishing and maintaining standards for competent and ethical behavior by the professionals under its jurisdiction.”

 

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