Duck v. Bd. of Registered Nursing



















Filed 3/21/13 Duck v. Bd. of Registered Nursing CA1/3

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>NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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California
Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or
relying on opinions not certified for publication or ordered published, except
as specified by rule 8.1115(b). This
opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.







IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FIRST
APPELLATE DISTRICT



DIVISION
THREE




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BRANDON DUCK, Plaintiff and Appellant, v. BOARD OF REGISTERED NURSING, DEPARTMENT OF CONSUMER AFFAIRS, STATE OF CALIFORNIA, Defendant and Respondent.

A135099 (City & County of San Francisco Super. Ct. No. CPF-11-511662)

Brandon
Duck appeals from a judgment denying his petition for writ of href="http://www.fearnotlaw.com/">administrative mandamus seeking to
overturn a disciplinary order by the Board of Registered Nursing, Department of
Consumer Affairs, State of California
(the board), placing him on probation for a three-year period upon specified
terms and conditions. He contends that the board erred by imposing discipline
based on his single “aberrational”
misdemeanor conviction for driving under the influence. Alternatively, he
argues that the penalty imposed was arbitrary and capricious. We shall affirm
the judgment.

Factual and
Procedural History

Duck
is a registered nurse licensed by the board. In November 2009, he was arrested
by a California Highway Patrol officer for driving under the influence of
alcohol. He was observed weaving, swerving, and crossing highway lines, at one
point nearly colliding with a concrete barrier. His blood alcohol level at the time
of his arrest was .20 percent. As a result of this incident, he pled guilty and
was convicted of a misdemeanor violation of Vehicle Code section 23152,
subdivision (a), for driving under the influence of alcohol. He also
admitted the special allegation pursuant to Vehicle Code section 23578 that his
blood alcohol level was in excess of .15 percent.

Thereafter,
an accusation was filed with the board alleging that Duck was subject to
discipline pursuant to Business and Professions Code sections 490, 2761,
subdivision (f), and 2762, subdivisions (b) and (c). href="#_ftn1"
name="_ftnref1" title="">[1]
The matter proceeded to a hearing in December 2010 before an administrative law
judge.

At
the hearing, Duck testified that on November
12, 2009, he and a friend were at Candlestick
Park for a San
Francisco 49er football game. They arrived and began
drinking around noon in anticipation
of a game scheduled to begin at 5:00 p.m.
He did not know how much he had to drink because he “wasn't paying attention to
[his] drinking.” He drank over the
course of “a lot of hours” until the game ended around 8:00 or 9:00 p.m. He knew he was too drunk to drive safely, but
did so because he was told that he was not permitted to leave his car in the
parking lot overnight.href="#_ftn2"
name="_ftnref2" title="">[2] He agreed his decision to drive nonetheless
was irresponsible.

The
administrative law judge issued a proposed decision that was ultimately adopted
in full by the board. The decision finds that “the evidence did not establish
that [Duck] has a history of alcohol or other substance abuse” or that his
“practice of nursing was impaired by alcohol or other substance abuse, either
with regard to his November 12, 2009 offense or at other times.” The decision
recognizes that character witnesses and job evaluations “attested to his good
character, lack of an alcohol abuse, dedication to the nursing profession and
good work habits” and “good work performance.” The decision observes that this
“offense appears to have been aberrational.” Nonetheless, the decision
concludes that Duck was subject to discipline under each of the charging
statutes. The decision rejects Duck’s argument that his DUI conviction is not
substantially related to the qualifications, functions, or duties of a
registered nurse. The decision relies on Griffiths
v. Superior Court (2002) 96 Cal.App.4th 757, 770 in which the court held
that “[c]onvictions involving alcohol consumption reflect a lack of sound
professional and personal judgment that is relevant to a physician’s fitness
and competence to practice medicine” and that driving under the influence of
alcohol shows a serious breach of the duty owed to society and such conduct by
a physician endangers members of the public and tends to undermine public
confidence and respect for the medical
profession. The decision explains, “Although the statute in the >Griffiths case
involved two or more DUI convictions, its logic is also applicable to a nurse
with a single DUI conviction. In this day and age, the dangers of drunk driving
are well known, and particularly so for members of the health professions such
as [Duck].” Finally, the decision notes, “Sections 2762, subdivisions (b) and
(c), moreover, reflect a legislative determination that a DUI conviction
demonstrates a danger to the public that is sufficiently related to the duties,
qualifications, and functions of a registered nurse as to impose discipline.”

Duck’s
license was placed on a three-year term of probation subject to some but not
all of the conditions of probation included in the board’s recommended
guidelines for disciplinary orders and conditions of probation. (See Cal.
Code Regs., tit. 16, § 1444.5.)href="#_ftn3" name="_ftnref3" title="">[3]
Under the conditions of his probation, Duck is permitted to work as a
registered nurse but must be supervised by a registered nurse and may not
himself work as a nursing supervisor or instructor, or work for a nurse’s
registry, temporary agency, in-house nursing pool or in a float capacity, and
must complete a college level nursing course and reimburse the board its costs
for enforcement of the disciplinary matter. However, the order provides that
“Under the facts and circumstances of the case, and bearing in mind that [Duck]
has no prior history of discipline, alcohol abuse, or impaired functioning as a
nurse, complainant has not shown that the following requested terms of
probation are appropriate: physical examination; participate in a
treatment/rehabilitation program for chemical dependence; abstain from use of
psychotropic drugs; submit to tests and samples; mental health examination; and
therapy or counseling program.”

Duck
filed a petition for writ of administrative mandate challenging the board’s
discipline order. Following briefing and oral argument, the trial court denied
Duck’s petition, concluding that the “Board did not abuse its discretion or
exceed its jurisdiction, nor was there error of law,” and that “[d]iscipline is
warranted under B&P Sections 2761(f), 490, and 2762.”

Duck
filed a timely notice of appeal.

Discussion

1. Standard
of Review

“When
a trial court rules on a petition for writ of mandate following a license
revocation, it must examine the record for errors of law, and exercise its
independent judgment to determine whether the weight of the evidence supported
the administrative decision. [Citation.] After the trial court has exercised
its independent judgment upon the weight of the evidence, an appellate court's
function ‘is solely to decide whether credible, competent evidence supports
[the trial] court’s judgment.’ [Citation.] The trial court's legal conclusions,
however, are open to appellate review for errors of law.” (Robbins v. Davi (2009) 175 Cal.App.4th 118, 124.) As to review of
the level of discipline imposed, the standard is abuse of discretion. “The
propriety of a sanction imposed by an administrative agency is a matter resting
in the sound discretion of that agency, and that decision will not be
overturned absent an abuse of discretion.” (Hughes
v. Board of Architectural Examiners (1998) 68 Cal.App.4th 685, 692.) >

2. >The board did not err in imposing discipline
under sections 490, 2761, and 2762.

Contrary
to Duck’s characterization of the board’s decision, the board found that he was
subject to discipline under all three statutory provisions, not just section
2762. For the reasons discussed below, we conclude that discipline was properly
imposed pursuant to each of these statutory provisions.

First,
as noted, both the board and the trial court concluded that Duck’s conviction
was “substantially related” to his fitness to practice as required by sections
490 and 2761. The question of whether a conviction is substantially related to
one’s professional qualifications is one of law, not fact. (>Robbins v. Davi, supra, 175 Cal.App.4th at p. 124; see also >Donaldson v. Department of Real Estate
(2005) 134 Cal.App.4th 948, 955 [section 490 “requires a reasoned determination
that the conduct was in fact substantially related to the licensee’s fitness to
engage in the profession”].)

In
Griffiths v. Superior Court, >supra, 96 Cal.App.4th at page 770, the
court explained, “Convictions involving alcohol consumption reflect a lack of
sound professional and personal judgment that is relevant to a physician's
fitness and competence to practice medicine. Alcohol consumption quickly
affects normal driving ability, and driving under the influence of alcohol
threatens personal safety and places the safety of the public in jeopardy. It
further shows a disregard of medical knowledge concerning the effects of
alcohol on vision, reaction time, motor skills, judgment, coordination and memory,
and the ability to judge speed, dimensions, and distance. [Citation.]
[¶] Driving while under the influence of alcohol also shows an inability
or unwillingness to obey the legal prohibition against drinking and driving and
constitutes a serious breach of a duty owed to society.” As noted by the
administrative law judge, although the court in Griffiths was deciding whether more than one misdemeanor conviction
involving alcohol consumption has a logical connection to the fitness to
practice medicine, its reasoning is equally applicable to whether a single
misdemeanor conviction is substantially related to the practice of nursing.
Like the board and the trial court and for the reasons stated in >Griffiths, we conclude that Duck’s
single misdemeanor conviction is substantially related to the practice of
nursing within the meaning of sections 490 and 2761.

In
addition, the trial court upheld the board’s disciplinary action pursuant to
section 2672, subdivisions (b) and (c). Duck acknowledges that after the filing
of this appeal, Division Five of this district issued an opinion holding that a
single misdemeanor DUI conviction is cause for href="http://www.fearnotlaw.com/">disciplinary action against a registered
nurse under section 2672, subdivisions (b) and (c). (Sulla v. Board of Registered Nursing (2012) 205 Cal.App.4th 1195.)
In doing so, the court also concluded that “there is a nexus or logical
relationship between the professional fitness of a registered nurse and the
alcohol-related misconduct defined by section 2762, subdivisions (b) and (c).”
(Sulla, p. 1204.) Duck argues
that the decision in Sulla is wrong
and urges this court to reject its reasoning.
Much of Duck’s argument, however, centers on the interplay between sections
490 and section 2762 and the conclusion in Sulla
that discipline may be imposed under section 2762 even if the board finds, as
it did there, that there was no
substantial relationship between the nurse’s single alcohol-related
conviction and the practice of nursing. (Sulla,
pp. 1204-1205 [administrative law judge’s “finding that Sulla’s conduct
was not substantially related to his professional qualifications for purposes
of the allegations under sections 490 and 2761, subdivision (f) cannot be used
to circumvent the conclusive presumption that the conduct described by section
2762 amounts to unprofessional conduct”].) Unlike the situation in >Sulla, the board in the present case
made the “nexus” finding required under section 490. The board found a
substantial relationship between Duck’s offense and the practice of nursing,
the trial court found the evidence sufficient to uphold that finding, and we
have upheld the trial court’s determination. Hence, we need not consider here
whether discipline may be imposed under section 2762 absent such an express
finding.

3. The board’s decision
did not violate Duck’s equal protection rights.

Duck
contends that the imposition of discipline based on a single, misdemeanor
alcohol-related conviction violates his right to equal protection because
section 2239, subdivision (a), applicable to physicians, requires two or more
misdemeanor alcohol-related convictions to impose discipline. This argument was
also rejected in Sulla. (>Sulla v. Board of Registered Nursing, >supra, 205 Cal.App.4th at p. 1207.) The
court explained, “We give great deference to a legislative decision to treat
members of one profession differently from members of another, and apply a
‘rational basis’ standard to such equal protection claims. [Citation.]
. . . [¶] Physicians and nurses both provide health care, but
their education, licensing requirements, and day-to-day duties are not the
same. The Legislature has developed comprehensive regulatory schemes for both
groups, but there is no constitutional requirement that these schemes be
identical. Appellant has not carried his threshold burden of showing that the
state has adopted a classification that treats two or more similarly situated groups in an unequal manner. [Citation.]
[¶] Assuming for the sake of argument that physicians and nurses are
similarly situated when it comes to discipline for alcohol-related convictions,
Sulla’s conviction was not the sole basis for the discipline in his case. The
Board found that he had used alcohol in a manner dangerous to himself or
others, in violation of section 2762, subdivision (b), conduct that would also
support a disciplinary action against a physician under section 2239,
subdivision (a). Because even a single instance of using alcohol in a manner
that is dangerous to oneself or others constitutes unprofessional conduct by a
physician, a single conviction for driving under the influence (an act that is
necessarily dangerous to self or others) could support a disciplinary
proceeding against a physician. Sulla has not demonstrated that he has been
treated more harshly than a physician would have been under similar
circumstances, and we reject his equal protection claim.” (Sulla, p. 1207.) We agree with the court’s reasoning and
reject Duck’s equal protection argument.

4. The
discipline imposed by the board does not reflect an abuse of discretion.

The
disciplinary decision adopted by the board provides, “Pursuant to the board’s
disciplinary guidelines [citation], [Duck] will be placed on probation for
three years.” The guidelines list various “standard” terms of probation, and
also several optional probation conditions, which the guidelines state are
“usually required (in addition to the standard conditions 1-13) if the offense
involves alcohol/drug abuse.” The board imposed most of the standard conditions
but because Duck had “no prior history of discipline, alcohol abuse, or
impaired functioning as a nurse” the board declined to impose any of the
optional conditions, which include participation in a treatment program,
therapy, and submission to tests. The trial court found that Duck failed to
establish that the board’s discipline order was an abuse of discretion. The
court explained, “The board applied a minimum three-year term of probation with
certain conditions within its guidelines, and explained the reasons for doing
so, including rejecting certain conditions sought . . . in this
case.”

On
appeal, Duck argues that because he has no prior history of discipline or
alcohol abuse and because his offense had no direct impact on his patients,
“there is no justification for the board’s order prohibiting [him] from
teaching nursing, supervising registered nurses, working in patient’s homes or
floating among hospital units.” Probation subject to conditions is within the
range of disciplinary actions recommended in the guidelines. As the board
notes, “the recommended discipline for violation of section 2762(b), is either
outright revocation or, in the case of a ‘first time offense with documented
evidence of an on-going rehabilitation program,’ the guidelines recommend
‘minimum’ conditions of probation 1-19 [which include both the standard and
optional probation conditions]. For violation of section 2762(c), the
guidelines likewise recommend, at a minimum, probation conditions 1-19 in the
case of a ‘first time offense with documented evidence of an on-going
rehabilitation,’ and where the misconduct did not occur ‘on the job.’ ”
The conditions challenged by Duck are only the standard probation conditions,
which the guidelines explain “provide for consumer protection and establish a
mechanism to monitor the rehabilitation progress of a probationer.” The more
onerous and invasive optional conditions were not imposed. Contrary to Duck’s
argument, the challenged conditions are reasonably designed to serve the
identified purposes of probation. Although these conditions may appear harsh
under the circumstances of this case, Duck has not established that the board
abused its discretion or acted in the arbitrary, capricious or patently abusive
manner required to disturb an agency’s disciplinary decision.




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Disposition

The
judgment is affirmed.









_________________________

Pollak,
Acting P.J.





We concur:





_________________________

Siggins, J.





_________________________

Jenkins, J.