Opinion
11-21-1955
Frederick Sheets LORENZ, Petitioner and Appellant, v. BOARD OF MEDICAL EXAMINERS OF THE STATE OF CALIFORNIA, Respondent.* Civ. 16735.
Lowell L. Dryden, Denison, Dietrich & Anderson, Los Angeles, Hutchinson & Quattrin, San Francisco, for appellant. Edmund G. Brown, Atty. Gen., of California, Dan Kaufmann, Deputy Atty. Gen., for respondent.
Frederick Sheets LORENZ, Petitioner and Appellant,
v.
BOARD OF MEDICAL EXAMINERS OF THE STATE OF CALIFORNIA, Respondent.*
Nov. 21, 1955.
Rehearing Denied Dec. 21, 1955.
Hearing Granted Jan. 18, 1956.
Lowell L. Dryden, Denison, Dietrich & Anderson, Los Angeles, Hutchinson & Quattrin, San Francisco, for appellant.
Edmund G. Brown, Atty. Gen., of California, Dan Kaufmann, Deputy Atty. Gen., for respondent.
KAUFMAN, Justice.
This is an appeal from a judgment of the Superior Court in and for the City and County of San Francisco, denying a writ of mandate to appellant, Dr. Frederick Sheets Lorenz, who sought to set aside an order of the Board of Medical Examiners revoking his certificate to practice medicine and surgery in this state.
An Accusation was filed against appellant before the Board on or about April 9, 1953, pursuant to the provisions of the Administrative Procedure Act. Government Code, § 11500 et seq. Paragraph III of said Accusation charged appellant with unprofessional conduct, contrary to the provisions of §§ 2361 and 2383 of the Business and Professions Code in that 'on or about the 3rd day of October, 1952, the respondent herein was duly convicted of an offense involving moral turpitude in the Justice's Court of the Brawley Judicial District, * * * in an action entitled 'The People of the State of California, Plaintiff v. Frederick S. Lorenz, Defendant', No. 646, in that respondent was convicted therein, upon his plea of guilty, of a violation of Section 61(a) of the Alcoholic Beverage Control Act of the State of California'.
Paragraph IV alleged that for the limited purpose of assisting the Board in ascertaining the extent of discipline to be imposed, should the charges be found to be true, that appellant had had his certificate to practice medicine and surgery in California previously revoked on or about March 13, 1947, for unprofessional conduct consisting of conviction of a crime involving moral turpitude, that such revocation had been suspended and respondent had been placed on probation for five years.
A trial of the charges was held before a hearing officer at Los Angeles on February 23, 1954. His proposed decision found that appellant had been convicted of violation of § 61(a) of the Alcoholic Beverage Control Act (now Business and Professions Code, § 25658(a)), upon his plea of guilty; that said conviction arose out of the isolated act of giving to a minor of the age of 17 years a drink containing more than one-half of one per cent of alcohol by volume; that said crime did not involve moral turpitude. He found the prior disciplinary record of appellant, alleged in Paragraph IV of the Accusation, to be true. His recommendation was that the Accusation be dismissed.
On July 9, 1954, the Board of Medical Examiners rejected the Hearing Officer's decision, as they have power to do under § 11517(c) of the Government Code. Both parties filed written arguments with the Board.
On September 27, 1954, the Board rendered its decision finding that appellant's conviction of a violation of § 61(a) of the Alcoholic Beverage Control Act was a conviction of a crime involving moral turpitude and that appellant's prior disciplinary record was true. The Board revoked appellant's license to practice medicine and surgery in California.
Appellant having filed a petition for a writ of mandate in the Superior Court of San Francisco, a trial was had on the record before the Board, consisting of the pleadings, exhibits, and testimony taken before the Hearing Officer.
On January 19, 1955, the Superior Court rendered its judgment denying the writ. The court found as had the Hearing Officer and the Board, that petitioner had been convicted of violation of § 61(a) of the Alcoholic Beverage Control Act. It also found that this conviction was of a crime involving moral turpitude 'in that it arose from the furnishing of intoxicating liquor by the petitioner on or about August 17, 1952, at the Travelodge Motel in Brawley, California, to a minor, David Hardenbrook, without just cause or explanation, and that at said time and place and in connection with the furnishing of said intoxicating liquor the petitioner did engage in immoral acts with the said minor.'
Section 2383 of the Business and Professions Code, reads in part as follows: 'The conviction of a felony, or of any offense involving moral turpitude, constitutes unprofessional conduct within the meaning of this chapter. The record of the conviction is conclusive evidence of such unprofessional conduct.'
Section 25658(a), Business and Professions Code (formerly Sec. 61(a) of the Alcoholic Beverage Control Act) provides that 'Every person who sells, furnishes, gives, or causes to be sold, furnished, or given away, any alcoholic beverage to any person under the age of 21 years is guilty of a misdemeanor.'
The Accusation filed against appellant to the Board, as heretofore noted, charged that appellant had been convicted of a crime involving moral turpitude.
At the trial before the Hearing Officer, the minor, David Hardenbrook, testified that he was 17 years of age at the time of the alleged offense, and resided in Brawley, California. He had first met appellant when he had been hospitalized at Children's Hospital in Los Angeles when he was nine or ten years of age. Appellant had planned to take David with him on a trip to New Mexico. David was waiting at the Travelodge Motel in the evening when appellant drove in from Hermosa Beach. The witness said that appellant registered, went with David to David's home, and then both returned to the motel. Appellant got bottles of coke, took a bottle of gin from his suitcase, mixed drinks of gin and coke which both of them drank. After this they disrobed and engaged in sex play. They also took photographs of each other. About ten o'clock that evening appellant took David home.
Several character witnesses testified to appellant's good reputation for morality, truth, honesty and veracity in the community. Two doctors testified that they had examined appellant and did not find that he had any homosexual tendencies. A private investigator testified to statements made by David Hardenbrook prior to trial which were contradictory to those made by him at the trial.
Appellant testified that he had practiced for six and one half years in Hermosa Beach, specializing in pediatrics. He denied seeing David at the motel in Brawley, and testified that he saw him at his home. While he admitted having had gin in his suitcase, he denied having given David a drink at the motel. He denied having had a conversation with Deputy Sheriff Thomas to the effect that David was waiting for him at the motel when he arrived; that he did not remember telling him that they went to David's house and them returned to the motel where they talked; that he did not recall telling him that he took a picture of David at the motel. He denied the acts of sexual misconduct. Deputy Sheriff Thomas testified that appellant told him that he would have a mixed drink, and David would drink the mix; that appellant said that David was at the Travelodge Motel when he arrived, that they went to David's home for dinner, returned to the motel for half to three quarters of an hour, and that he had taken a picture of David in his room at the motel.
It is the Board's position that in determining whether or not the appellant had been convicted of a crime involving moral turpitude, the Board of Medical Examiners could consider all of the circumstances surrounding the commission of the violation of the state liquor law, and it relies principally upon the case of Brainard v. State Board of Medical Examiners, 68 Cal.App.2d 591, 157 P.2d 7, and Wyatt v. Cerf, 64 Cal.App.2d 732, 149 P.2d 309.
Appellant argues that whether or not a crime involves moral turpitude is a question of law which must be determined from the record of the conviction alone. In the case of In re MeAllister, 14 Cal.2d 602, 604, 95 P.2d 932, 933, a disbarment case, the Supreme Court said that 'whether petitioner was convicted of a crime involving moral turpitude or of one not involving moral turpitude was a question of law and not one of fact,' and that the court was limited to 'the consideration of the record of conviction as certified to us by the clerk of the trial court, as section 287 of the Code of Civil Procedure makes said record conclusive evidence of petitioner's conviction.' The cited case was a summary disbarment proceeding now provided for in sections 6101 and 6102, Business and Professions Code, which allow summary disbarment of attormeys convicted of a felony or misdemeanor involving moral turpitude upon certification to the Supreme Court of the record of conviction. Section 2383 of that same code does not provide for mandatory revocation of a physician's license summarily upon certification of the record of conviction to the board, as is true in cases involving attorneys. It provides that conviction constitutes unprofessional conduct, and that the record of conviction is conclusive evidence of such unprofessional conduct, and the Board may revoke or suspend the license. Section 2361, Business and Professions Code empowers the Board to act when instances of unprofessional conduct are brought to its attention. Undoubtedly in cases where from the face of the record of conviction alone it could be determined that the crime was one of moral turpitude, the Board could refuse to receive any contradictory evidence, for in such cases the record would indeed be conclusive of the question. There may be cases, however, where it is not possible to tell from the face of the record whether or not moral turpitude was involved in the crime of which the licensee was convicted. As was said by the Supreme Court in In re Hallinan, 43 Cal.2d 243, 253, 272 P.2d 768, 774, 'Although every conviction for violating section 145 [subdivision] (b) may not involve moral turpitude, some convictions may. In such cases discipline or disbarment should be imposed by non-summary procedures. Bus. & Prof.Code, § 6106 et seq.' (Emphasis added.) In the present case discipline was imposed by non-summary procedure after a full hearing.
The case of Brainard v. State Board of Medical Examiners, 68 Cal.App.2d 591, 157 P.2d 7, 8, (petition for hearing by the Supreme Court denied), is very similar to the present case. Petitioner therein was charged with unprofessional conduct in that he had been convicted of a crime involving moral turpitude, violation of section 11225 of the Health and Safety Code, failure to keep records of narcotics dipensed. The record of conviction was attached to the complaint, showing that petitioner had entered a plea of guilty to the charge of violating section 11225. A hearing was held at which a narcotics inspector testified that marked money had been given to an 'operator', a narcotic addict, who entered petitioner's office and returned with narcotics, and that the marked money was later recovered from petitioner; that an examination of petitioner's records disclosed a shortage in his supply of narcotics.
Petitioner in the cited case contended that he had not been found guilty of a crime involving moral turpitude in the municipal court of Los Angeles, pointing out that he had been given a suspended sentence of one day upon entry a suspended of guilty to the charge of failure to keep a record of narcotics dispensed. The court there said: 'Whether or not the offense committed did in fact involve moral turpitude depends upon all of the surrounding circumstances. The Board of Medical Examiners was not limited by the sentence pronounced by the municipal court, but it was justified in hearing evidence concerning all of the circumstances surrounding the offense for the purpose of determining if indeed moral turpitude was involved.' The court there relied on In Hatch, 10 Cal.2d 147, 73 P.2d 885, and In re Disbarment of Rothrock, 16 Cal.2d 449, 106 P.2d 907, 131 A.L.R. 226, which involved disbarment of attorneys. Petitioner in the Brainard case claimed that he had been deprived of his license without due process of law, in that the complaint before the Board charged him only with a misdemeanor. Petitioner in the present case complains also that the Accusation was insufficient to advise him that he would be called upon to defend himself against a sex crime. However, the court in the cited case held that the charge in the complaint that he had been convicted of a crime involving moral turpitude was sufficient to notify petitioner that he would be called upon to meet the accusation that circumstances surrounding the commission of the offense involved moral turpitude. That petitioner herein was sufficiently advised of the nature of the testimony he would be confronted with is evident from the fact that, although the trial took place entirely on one day, February 23, 1954, and although petitioner's counsel sought to have all evidence excluded but the bare record of the conviction, he had medical witnesses ready to testify that they had examined petitioner and had found that he had no homosexual tendencies. There has therefore, been no showing that petitioner was deprived of a full and fair hearing. Furthermore, as found by the trial court, appellant waived his right to object to the form of the Accusation since he failed to present any objection to it in the proceeding before the Board. Government Code, Sec. 11506(b).
Appellant notes that in the opinion in the Brainard case, the court concluded with the statement 'It is not claimed that a charge of unprofessional conduct may not be based upon the furnishing of narcotice to an addict.' However, appellant therein was charged, not with furnishing narcotics to an addict, but with the failure to keep required records. The basis of the decision was that the Board could inquire into all the circumstances surrounding the commission of the crime for which he was convicted to determine whether or not it involved moral turpitude. Although appellant argues that any offense involving narcotics is one which on its face involves moral turpitude, that is not true. A failure to keep proper records, the crime charged in the Brainard case, might very well result from negligence alone.
It is contended that in the Brainard case, the appellant merely argued that the evidence was insufficient and did not object that the evidence of the 'background' crime was outside the issues, an objection which was raised in the present case. However, appellant therein argued that he was not convicted of a crime involving moral turpitude in the municipal court, and the court therein explicitly held that the Board in determining that issue was not limited to the sentence pronounced by the municipal court but could inquire into the circumstances surrounding the commission of the offense.
The Brainard case relied upon only two California cases both involving attorneys, In re Hatch, supra, and In re Disbarment of Rothrock, supra. The Hatch case, as noted in the later Hallinan case, was not a summary proceeding. Hatch had been convicted of violation of the Corporate Securities Act. The court there said that 'Conceivably not in every case of the conviction of violations of the Corporate Securities Act will the face of the record of conviction indicate conclusively whether the offense in moral turpitude. * * * There is necessarily a field of doubtful cases where the determination as to whether moral turpitude was involved may fall on one or the other side of the line, depending upon the circumstances of the particular case. * * * This court would not be justified in holding that, because the circumstances of any one such case might indicate a mere technical omission without the stigma of moral guilt, the entire class of offenses is one not involving moral turpitude.' [10 Cal.2d 147, 73 P.2d 886.]
Appellant points out that the medical cases and attorney disbarment cases are not truly parallel, in that Section 6106 of the Business and Professions Code, provides that any act involving moral turpitude is cause for disbarment whether the act is a felony or misdemeanor or not. The Medical Act has no similar provision. Thus, in In re Hallinan, Section 6106 was relied on as authority for the State Bar Board to inquire as to 'whether in the commission of the crime the convicted lawyer was guilty of misconduct that requires his suspension or disbarment.' The court there held that the conviction did not involve intent to defraud as an essential element of the crime proscribed, and that the issue of fraud or dishonesty was not necessarily involved and was not res judicata. A reference to the Board of Governors of the State Bar Board was therefore ordered for a hearing 'as to whether the facts and circumstances surrounding the commission of the offense' of which petitioner was convicted 'involved moral turpitude or other misconduct warranting disbarment or suspension.' This case holds that if the investigation disclosed that the crime of which petitioner was convicted did involve moral turpitude, the court then could disbar him for that conviction after hearing, or if other misconduct not involving moral turpitude but warranting disbarment was disclosed, the court could of course, act on that matter.
In an earlier case, In re Richardson, 15 Cal.2d 536, 102 P.2d 1076, 1079, a reference was ordered for an investigation 'whether, under all the circumstances, moral turpitude was involved in the charge and plea.' Later, in In re Richardson, 20 Cal.2d 894, 123 P.2d 11, the charge was ordered dismissed because the report showed that 'the facts and circumstances surrounding the conviction' of petitioner did 'not disclose moral turpitude to have been involved in the commission of the offense.'
Respondent contends that the act of furnishing liquor to the minor who was seventeen years of age, not being excused or justified in any way, was an act of moral turpitude, since it was an act contributing to the delinquency of a minor.
Appellant argues that the evidence respecting the drink furnished to the minor will not sustain respondent's order because there is nothing in the evidence to connect the drink with the lewd conduct to which the minor testified. The minor did not testify that the drink had any effect on him, that it paralyzed his will, or that it was any inducement to what happened later. However, the Board, as well as the trial court, was entitled to infer from the testimony of the minor that the drinking of the intoxicating liquor had some connection with what followed. It cannot be said as a matter of law that it did not. People v. Koosistra, 58 Cal.App. 277, 279, 208 P. 316.
It is urged that prejudicial error was committed in making findings upon issues not presented by the administrative record, or the pleadings. It is fundamental that the review of administrative proceedings must be confined to issues appearing in the record as made out by the parties to the proceedings. Bohn v. Watson, 130 Cal.App.2d 24, 278 P.2d 454. It is claimed that the trial court went beyond the issues in making the finding concerning the sex crime and its connection with the liquor violation. However, the trial court was free to make its own findings on whether or not the offense involved moral turpitude, for in a trial de novo in this type of case the court has power to make its findings of fact and conclusions of law. Dare v. Board of Medical Examiners, 21 Cal.2d 790, 801, 136 P.2d 304. As was earlier noted, appellant was well aware of the nature of the moral turpitude with which he was charged, since at the beginning of the hearing he came prepared with two medical witnesses who were ready to and did testify that he had no homosexual tendencies. Appellant had the right to object to the sufficiency of the Accusation, Government Code, § 11506(a), and this he did not do. See, Marlo v. State Board of Medical Examiners, 112 Cal.App.2d 276, 246 P.2d 69; Stuck v. Board of Medical Examiners, 94 Cal.App.2d 751, 755-756, 211 P.2d 389.
We conclude that the findings and judgment of the trial court are amply supported by the evidence and the law and that no prejudicial error appears in the record before us.
Judgment denying writ of mandate affirmed.
NOURSE, P. J., concurs.
DOOLING, Justice.
I concur because I feel bound by the rule announced in Brainard v. State Board of Medical Examiners, 68 Cal.App.2d 591, 157 P.2d 7, in which the Supreme Court denied a hearing. Were it a matter of first impression I would hold that the violation of the Beverage Control Act did not involve the subsequent alleged sex offense of which appellant has never been convicted, and hence did not involve moral turpitude. --------------- * Opinion vacated 298 P.2d 537.