Opinion
Rehearing Denied May 12, 1967.
For Opinion on Hearing, see 64 Cal.Rptr. 785, 435 P.2d 553.
Thomas C. Lynch, Atty. Gen., by Hubert O. Bower, Deputy Atty. Gen., Sacramento, for appellant.
Charles J. Miller, Sacramento, for petitioner-respondent.
BRAY, Associate Justice assigned.
Appellant appeals from judgment of the superior court granting writ of mandate annulling order of the board which revoked respondent's license to practice medicine and directing the board to reconsider its penalty.
QUESTION PRESENTED
1. Was there an issue of moral turpitude before the court? 2. If so, was the finding that respondent was not guilty thereof supported?
RECORD
Respondent was convicted in the Municipal Court, Stockton Judicial District, San Joaquin County, of nine counts of violating section 4227 of the Business and Professions Code (furnishing dangerous drugs
The board, after hearing, adopted the hearing officer's proposed decision finding all the allegations of the accusation true, and finding three grounds for disciplinary action to exist and ordered respondent's license revoked on each ground.
These grounds were that respondent's acts as found in the convictions constituted (1) unprofessional conduct, (2) moral turpitude under section 2383, and (3) unprofessional conduct under section 2391.5.
Thereafter, respondent petitioned the superior court for writ of mandate under section 1094.5 of the Code of Civil Procedure. The issues raised were briefed and orally argued. No additional evidence was taken. The court determined that the board's decision was supported by the evidence except that the board's finding of moral turpitude was not sustained by the weight of the evidence, entered judgment annulling the board's order, and ordered the cause remanded to the board for redetermination of the penalty on the other grounds.
1. Moral Turpitude Issue Was Before the Court.
The court found: "III The finding [of the medical board] that petitioner was guilty of moral turpitude is not supported by the weight of the evidence."
Appellant contends that the propriety of this finding of the board was not an issue in the superior court. It bases that contention of the fact that petitioner's amended petition for writ of mandate, stating his reasons for asking the court to reverse the action of the board, does not refer to the board's finding of moral turpitude nor allege that respondent's criminal convictions were not of crimes involving moral turpitude.
The issue of moral turpitude was, of course, before the board. It was charged in the accusation. (First count, Par. VI.). While there is in the pleadings before the court no specific reference to the subject matter of court finding III, the issue of whether the board's finding of moral turpitude was supported, actually was presented to and considered by the trial court because: (1) The entire record of the board's proceedings and findings was presented, and (2) because the matter was argued. Interestingly enough, when the subject was first broached by the judge, respondent's counsel was inclined to believe that the offenses of which respondent was convicted were ones of moral turpitude as a matter of law. However, counsel finally accepted the lifeline thrown him by the judge and argued that neither the convictions nor the acts upon which they were based had that effect. The discussion between court and counsel for both parties was such as to present to the court the moral turpitude issue.
In the instant case appellant has debated the matter at some length in its brief. We see no reason why we should not permit the issue to be considered in this court.
2. Petitioner's Acts Constituted Moral Turpitude
We turn to the question of whether the court's finding that the offenses were not ones of moral turpitude is supported. Administrative mandamus is Cooper v. State Bd. of Medical Examiners
Magit v. Board of Medical Examiners"Moral turpitude is defined as 'everything done contrary to justice, honesty, modesty, or good morals.' " (In re McAllister (1939) 14 Cal.2d 602, 603, 95 P.2d 932, 933.) And it has been defined as " 'An act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow men or to society in general, contrary to the accepted and customary rule of right and duty between man and man.' " (In re Boyd (1957) 48 Cal.2d 69, 70, 307 P.2d 625; In re Alkow (1966) 64 Cal.2d 838, 841, 51 Cal.Rptr. 912, 415 P.2d 800; see also Hallinan v. Committee of Bar Examiners (1966) 65 A.C. 485, 491, footnote 4, 55 Cal.Rptr. 228, 421 P.2d 76.)
As said by Chief Justice Traynor in In re Hallinan (1954) 43 Cal.2d 243, 247, 272 P.2d 768, 771, "the problem of defining moral turpitude is not without difficulty." As stated in the last-mentioned case, there are many crimes the conviction of which can be had without proof of facts showing moral turpitude, and "the record of conviction is 'conclusive evidence' only when the crime itself necessarily involves moral turpitude." (P. 249, 272 P.2d p. 772.)
Section 4227 of the Business and Professions Code provides in pertinent part: "No person shall furnish any dangerous drug * * * except upon the prescription of a physician * * *."
Section 2383 of the Business and Professions Code, the section upon which the first count of the accusation is based, provides in pertinent part: "The conviction of either (1) a felony or (2) any offense, misdemeanor or felony, involving moral turpitude constitutes unprofessional conduct within the meaning of this chapter. The record of conviction shall be conclusive evidence only if the fact that the conviction occurred. The board may inquire into the circumstances surrounding the commission of the crime in order to fix the degree of discipline or to determine if such conviction is of an offense involving moral turpitude. * * * The board may order the license suspended or revoked * * *."
In Lorenz v. Board of Medical Examiners (1956) 46 Cal.2d 684, 686, 687, 298 P.2d 537, the petitioner was a medical doctor who had been convicted of violating then section 61, subdivision (a), of the Alcoholic Beverage Control Act which made it a misdemeanor to sell, give or furnish any alcoholic beverage to any person under the age of 21 years. Based upon that conviction the Board of Medical Examiners revoked the doctor's license. The reviewing court held that whether or not the offense of which the doctor was found guilty involved moral turpitude was solely a question of law and unless moral turpitude was inherent in the offense itself the board could not find the offense to include moral turpitude and that the board had no power to investigate the circumstances of the commission of the offense to determine the issue.
Subsequent to the decision in Lorenz and in 1957 section 2383 was amended to provide as hereinbefore set forth that the board in determining if the offense involved moral turpitude might inquire into its circumstances. Then in 1961 section 117 was adopted which provides in part that in any proceeding to suspend a license or to take disciplinary action against a person who holds a license upon the ground that the licensee "has been convicted of a crime involving moral turpitude, the record of conviction of the crime shall be conclusive evidence of the fact that the conviction Our duty is to determine whether there is any substantial evidence to support the court's finding that the weight of the evidence before the board did not support the board's finding of moral turpitude. At the court hearing no evidence was introduced on the issue of moral turpitude. The hearing consisted mostly of argument based on the board's record. The trial court in its opinion stated that the board "acted within its jurisdiction, that Petitioner [Dr. Yakov] had a fair trial, that the decision is supported by the findings, that the findings * * * [with the exception of the finding of moral turpitude] are supported by the evidence."
As stated by the trial judge in his opinion, the conviction of respondent rests "upon the premise that the doctor was not engaging in the practice of his profession and prescribing for a patient, but that he was engaged in the illicit sale of a dangerous drug," a violation of section 4227 of the Business and Professions Code.
Before the board, in addition to the evidence of respondent's convictions of the criminal offenses charged and some evidence concerning the effect of amphetamine sulfate and dextro amphetamine sulfate (Dexedrine) (the drugs sold by defendant) as being habit forming but not addictive (it is conceded that these drugs are "dangerous drugs" under section 4227), there was the testimony of three women operatives of the medical board.
Mrs. Orr testified that on her first visit she asked the doctor for weight-reducing pills for herself and a friend who was not present. The doctor made no examination of her but did weigh her. She received a three-weeks' supply of tablets and capsules for herself and a like supply for her friend. She paid the doctor $2 for the office call and $12 for the drugs. On a second visit she was not examined but was weighed and received drugs costing $36.
Mrs. Moffat on her first visit asked for "pep" pills as she was "tired." She received a supply of capsules and tablets. She returned on four subsequent occasions and received the drugs for herself and three fictitious women whose names she gave the doctor. She gave the doctor $50. The record is not clear as to whether this sum was for the last drugs she received or was the total sum she paid over the period of her visits. The doctor did not examine her but on occasion weighed her.
Mrs. Duran visited the doctor for reducing pills on six occasions, receiving capsules and tablets each time. She paid $90, whether for all or merely for those received on her last visit does not appear. The doctor did not examine or weigh her except on one visit when he weighed her, as he said, "for the record."
The drugs sold Mrs. Orr totaled an eight-months' supply (one tablet and one capsule were to be taken daily); Mrs. Moffat one year and eight months' supply; and Mrs. Duran three years and one month's supply.
The doctor, appearing at the board hearing without counsel, urged that he had been entrapped by the state's agents. However, his claim of entrapment was based solely upon the fact that they did not disclose their agency. He said that he gave them the drugs because they asked for them. He testified that he had on occasion dispensed these drugs to 18- and 19-year-old persons even though he knew they might be mildly habit forming. He would have given them to the examiner if the latter did not want to gain weight. Petitioner refused to admit that the drugs were dangerous, any He took the position that dispensing only a 30-day supply of the drugs was not a violation of the law and supplied a statement signed by 485 "patients" to the effect "that he never gave us medicine more than one month's supply at the time." Six patients testified that his treatment had helped them and that he never gave them over one month's supply of drugs at a time.
He claimed to have been advised by a former of the board not to have a lawyer at the board hearing. The court found that he was not deprived of the right to be represented by a lawyer.
He testified that it was only to the three investigators that he ever gave more than one month's supply and that Mrs. Duran told him she was going on a long trip and that was why he gave her such a large supply.
Respondent testified that he had practiced medicine for some 26 years without any stain on his record, that he practiced in a neighborhood of poor people, devoted his life to the underprivileged, and never sent a bill to a patient. He began to sell these drugs only when his patients complained that drugstore prices were too high, and that he sold the drugs at one-half the drugstore prices.
The evidence clearly shows that the doctor was in the business of selling these drugs more than in the practice of his profession relating thereto. A person to whom is given the right and responsibility of practicing medicine is held to a high degree of moral responsibility and particularly is required to comply with the laws applicable to him.
The duty of the trial court is to determine whether the findings of the medical board are supported by the weight of the evidence. If that court "erroneously finds that the weight of the evidence does not support the agency's findings it substitutes its judgment for that of the agency and controls the discretion vested by the Legislature in the agency. [Citations.]" (Moran v. State Board of Medical Examiners (1948) 32 Cal.2d 301, 316, 319, 196 P.2d 20, 32.)
In the case at bench the trial court erroneously found that the weight of the evidence does not support the board's findings. It must be remembered "that the record of the administrative board shall come before the court endowed with a strong presumption in favor of its regularity and propriety in every respect and that the burden shall rest upon the petitioner to affirmatively, competently, and convincingly, support his challenge. In other words, rarely, if ever, will a board determination be disturbed unless the petitioner is able to show a jurisdictional excess, a serious error of law, or an abuse of discretion on the facts." (Moran v. Board of Medical Examiners, supra, p. 318, 196 P.2d p. 31.)
Here, there was no conflict in the evidence. It is clear that petitioner was dispensing the dangerous drug without prescription in almost wholesale quantities. As found by the court he "was not engaging in the practice of his profession and prescribing for a patient," but "was engaged in the illicit sale of a dangerous drug." The trial court was bound by the record in this respect.
The court found in effect that the weight of the evidence supported the board in every respect, except that the court took it upon itself to characterize or label the actions which it and the board found that petitioner performed differently from the characterization or label placed upon them by the board.
It cannot be assumed that court's finding is a determination of fact rather than one of law, especially where, as here, the evidence is undisputed. The well-known law-fact dichotomy appears here, just as it pervades the fields of appellate review and of judicial review of administrative decisions. (See 2 Am.Jur.2d, Administrative Laws, secs. 618-619, pp. 461-466; Jaffe, Judicial Review: Question of Law, 69 Harv.L.Rev. 239; Netterville Administrative Questions of Law, 29 So.Cal.L.Rev. 434; Brown, Fact and Law in Judicial Review, 56 Har.L.Rev. 899; Patterson, Jurisprudence (1953) ch. 18; Davis, Administrative Law (1951) ch. 19, et seq.; Thayer, A Preliminary Treatise on Evidence, pp. 202-204.) Abstractly If the Board of Medical Examiners' inquiry into moral turpitude was one of fact, the trial court possessed independent judgment on the evidence and its decision is reachable on appeal only by the curtailed probe of substantial evidence. (Code Civ.Proc., sec. 1094.5, subd. (c); Moran v. Board of Medical Examiners, 32 Cal.2d 301, 308, 196 P.2d 20.) Yet, in finding moral turpitude, the board was not ascertaining facts but characterizing them, determining whether a broad statutory phrase should apply to a specific piece of professional misconduct. So viewed, the determination is one in which the trial judge has no particular expertise and should possess no particular dominance. In part, the problem is one of measuring the weight which the trial court should accord the administrative agency's characterization. (See National Labor Rel. Bd. v. Hearst Publications, 322 U.S. 111, 130-131, 64 S.Ct. 851, 88 L.Ed. 1170.) Our immediate concern, however, is the weight which the appellate court should give the trial court's characterization. For this limited purpose, it is enough to say that the validity of an ultimate conclusion drawn from undisputed acts is usually a question of law. (San Diego T. & S. Bank v. San Diego County, 16 Cal.2d 142, 153, 105 P.2d 94, 133 A.L.R. 416; Southern Pacific Co. v. Pillsubry, 170 Cal. 782, 783, 151 P. 277, L.R.A. 1916E, 916; see Loper v. Morrison, 23 Cal.2d 600, 611 145 P.2d 1 (dissent).)
Proceedings involving moral turpitude as a factor in the admission and discipline of attorneys supply an analogy which does not extend into the field of judicial review. In those cases the state Supreme Court exercises original jurisdiction, independently examining and weighing the administrative evidence and passing upon its sufficiency. (Hallinan v. Committee of Bar Examiners, 65 A.C. 485, 489, 55 Cal.Rptr. 228, 421 P.2d; see Konigsberg v. State Bar of California, 353 U.S. 252, 254, 77 S.Ct. 722, 1 L.Ed.2d 810.)
Whichever is the test--absence of substantial evidence of error of characterization--the judgment in this case should be reversed.
It must be remembered that the "moral turpitude" with which the act deals is moral turpitude within the framework of the purpose of the act. That purpose is the protection of the public against acts by a physician which could cause harm to a person or to the public. The medical board, applying its expertise to the facts, had held that petitioner's acts were of the kind that could result in such harm, that in effect they were acts indicating a lack of those qualities essential to the maintenance of the dignity and integrity of the profession. Even petitioner's counsel, in a letter to the trial court, stated: "* * * The Transcript discloses that he [petitioner] no doubt was gilty of bad judgment in an area which is a matter of justifiable public concern." (Emphasis added.)
None of the grounds upon which the court found no moral turpitude constitute substantial evidence to justify the finding, particularly when that term is being applied in its standard of proper medical practice connotation. The "moral turpitude" with which we are concerned is measured by the standards of policy and morality as related to the proper conduct of the medical profession--a profession which is required to pay strict attention to laws for its regulation, especially as regards dangerous drugs.
The trial court based its characterization of petitioner's acts as not constituting moral turpitude on several grounds. The first, that he had had not disciplinary actions or complaints against him, is a complete non sequitur. On this basis moral turpitude could only apply to a second offender and never to a first. The second ground is that amphetamine drugs have A third ground was that "He [the doctor'] minimizes in his own mind the theory that the drugs he dispensed were 'dangerous,' comparing them to coffee, Coca-Cola, etc." The board's chemist testified that the drugs were not addictive, although they could be habit forming "like cigarettes." Petitioner, however, in a treatise written by him, stated that use of these drugs carried with it the possibility of addiction. He had underlined that portion of his treatise which so stated. He was aware of that possibility when he sold the drugs to teen-agers. Moreover, section 4211, subdivision (c), of the Business and Professions Code characterizes the drugs sold by petitioner as "dangerous."
A fourth ground was that "The record falls short of showing a profit motive in Petitioner's conduct." Unfortunately, the record does not disclose the margin of profit, if any, between what the doctor paid for the drugs and the prices (one-half the drugstores' prices) at which he sold them. The doctor testified in effect that his motive was to help the poor people.
Although petitioner apparently sold large quantities of the drug whether he made a profit or not is beside the question. What is important is the fact that in spite of the law he did not deem it necessary to determine if the so-called patients required the drug. The lack of profit motive, if it existed, could have been consistent with a compliance with the law had petitioner seen fit to comply. it must be remembered that the drug was given because asked for. It was not prescribed.
He sold huge quantities to the three state agents (to Virginia Dawson he sold almost a three-years' supply of amphetamines; to Alice Orr an eight-months' supply). He even asked Alice if she were going into business for herself. From the statement introduced in evidence it appears that he had sold the drug to 485 persons at "not more than one month's supply at a time."
The fact that his patients were poor people is, as shown above, likewise a non sequitur. It might have been a good reason for underselling the drugstores, but was no reason for failing to determine whether the persons had pathological conditions which required the use of the drug. Giving several months' supplies without requiring an occasional examination of the person to determine whether she still, if ever, needed the drug clearly shows that in the doctor's mind medical necessity for the drug's use was not a matter of consideration.
The trial court in its opinion stated that "there is much credence to Petitioner's contention that his conduct was prompted by affirmative action of Respondent's agents." It is difficult to understand this statement in view of the court's implied finding that there was no entrapment. The only affirmative action of the agents testified to by petitioner was that they asked for the pills both for themselves and others. Other than claiming that one of the women changed the color of her hair on the second
In Hallinan v. Committee of Bar Examiners (1966) 65 A.C. 485, 500, 55 Cal.Rptr. 228, 239, 421 P.2d 76, 87, the court pointed out that whether "activities involve moral turpitude is dependent upon the issues involved and the motivation of the violator." It is interesting to note on the question of petitioner's motivation that even at the time of the hearing before the board, petitioner apparently was not concerned about his supplying the drug without first examining the patient for the statement he introduced signed by 485 persons dealt only with their having been supplied with not more than 30-days supply at a time. None of the signers stated that he had examined or prescribed for them before furnishing the drugs.
In Du Vall v. Board of Medical Examiners, 49 Ariz. 329, 66 P.2d 1026, the court, in holding that a violation of the Harrison Narcotic Act was a crime involving moral turpitude, referred to the consumption of narcotic drugs being one of the great evils of the day, and to the fact that, recognizing this evil, most of the states have enacted laws restricting the right to prescribe such drugs to registered pharmacists and physicians for medicinal purposes only.
The members of the medical profession are "bound by their honor and the Hippocratic oath to the highest ideals in their relation to society * * *. When one of these has been convicted of violating the Harrison Narcotic Act, we think it safe to say he is guilty of 'an act of baseness * * * contrary to the accepted and customary rule of right and duty between man and man.' * * * [A] conviction under the Harrison narcotic Act negatives any and all presumptions of good faith on the part of the defendant and brands him as a person of bad moral character, unfit to practice medicine." (Du Vall v. Board of Medical Examiners, supra, pp. 1030-1031)
While in Du Vall the court was dealing with narcotics, the reasoning applies as well to other dangerous drugs such as the amphetamines.
In Lorenz v. Board of Medical Examiners (1956) 46 Cal.2d 684, 687, 298 P.2d 537, the court disapproved of that portion of Brainard v. State Board of Medical Examiners, 68 Cal.App.2d 591, 157 P.2d 7, which held that the board was authorized to consider the circumstances in determining the question as to whether the offense of which the doctor was convicted involved moral turpitude. However, as hereinbefore pointed out, section 117 was adopted and section 2383 amended to give the board the power to inquire into the circumstances of the offense.
Teen-agers and adults who may be reluctant to indulge in hard narcotics may be persuaded to indulge in the lesser drugs such as amphetamine. Once feeling the initial stimulation as elation or euphoria, they may be tempted to "repetitions of the experience and so become mildly addicted." It logically follows that once mild addiction is established, even the mild type of addiction that frequently attaches to the cigarette habit, the resulting dependency could cause increased dosages and the strong possibility of subsequent indulgence in the more dangerous narcotics.
Sollman, Pharmaceuticals (p. 510), portions of which were read into evidence, states concerning amphetamines, "individuals who feel the initial stimulation as elation or euphoria may be tempted to repetitions of the experience and so become mildly addicted." Petitioner said that this statement did not "mean addiction, it means dependency but not addiction like narcotics."
In Brainard v. State Board of Medical Examiners (1945) 68 Cal.App.2d 591, 157 P.2d 7, the crime of which the physician was convicted was violation of Health and Safety Code section 11225, "failure to keep Amphetamines when abused may be extremely dangerous. (See Annual Report (1960), Food & Drug Administration, U.S. Dept. of Health, Education & Welfare; see also Kalant, The Amphetamines, p. 114 et seq.) The members of the medical board (the board designated to police its own profession) have the knowledge and expertise to determine whether giving amphetamine to those who ask for it without determining their need is dangerous.
The characterization of an act as involving moral turpitude is a subjective one. The trial court supported the board's findings of the evidence in every respect. It, however, substituted its subjective idea of the effect of that evidence for that of the board. There is nothing in the evidence to justify that substitution, particularly in view of the rule that every intendment is in favor of the board's characterization of petitioner's acts, the very acts that the court found petitioner performed.
In view of our determination that the trial court erred in holding that the weight of the evidence did not support the board's finding of moral turpitude, it becomes unnecessary to discuss the court's action in remanding the cause to the board for a possible reconsideration of the penalties applied to each of the grounds for disciplinary action.
The judgment is reversed with directions to the trial court to discharge the alternative writ and deny the petition for a writ of mandate.
PIERCE, P.J., and FRIEDMAN, J., concur.