Mast v. State Board of Optometry

Petitioner brought this mandate proceeding to set aside the order of respondent board revoking his license to practice optometry.

An accusation was filed with the board charging petitioner with three counts of unprofessional conduct, viz: (1) employment of “cappers” or “steerers” to obtain business (Bus. & Prof. Code, § 3100); (2) obtaining fees by fraud or misrepresentation (Bus. & Prof. Code, § 3101); and (3) payment of unearned rebates as inducement for referring patients (Bus. & Prof. Code, § 650). Following hearing, the board found petitioner guilty on all counts and ordered his

In petitioner’s office, the air base business was kept separately on report sheets. Also, under Dr. Mast’s orders, a separate bank account was set up for this business.

Petitioner conducted his San Bernardino office personally during July and August, 1951, but on September 4, 1951, he employed Dr. Arthur Harris, an optometrist, to do the optometry work in this office. Such arrangement continued until the middle of October, 1952, when differences arose between the parties over the amount of compensation to which Dr. Harris was entitled. The relationship was thereupon terminated. During this period petitioner was in the San Bernardino offices only a few days each month.

In discussing this referral business, petitioner stated to Dr. Harris that “he had 25 percent advertising costs at the Air Base ...” He declined, however, to explain what he meant by “advertising costs.” Petitioner told Mrs. DeRosie that “it was costing him 25 percent to get the business from the base.” On another occasion he told her “he was paying Lt. Roth 25 percent to get the business.”

Six checks signed by petitioner and payable to Audrey Roth, wife of Lieutenant Roth, were introduced in evidence. These covered a period from August 2 to October 15, 1951. They ranged from $17.23, the amount of the first, to $68.44, the face of the last. Petitioner, however, claims these checks were in payment for services rendered on an hourly basis by Mrs. Roth in connection with his advertising program, she assertedly halving had some experience in preparing advertising copy! The only specimen of her work that was offered in evidence was a pencil draft of a proposed newspaper advertisement 2x3% inches, announcing the opening of petitioner’s San Jose office, together with another sheet containing 16 lines relative to advertising media. It does not appear, however, that this material was used. While petitioner’s bookkeeper testified that Mrs. Roth acted as petitioner’s advertising consultant, she did not render any services at the San Bernardino office. No record was offered to show the number of hours she worked per day or per week; no bill was submitted for services rendered. The

Although Lieutenant Both and his wife were called as witnesses and admitted acquaintance with petitioner, they both refused to answer upon constitutional grounds all questions concerning their dealings with or relationship to him.

There was received in evidence, over petitioner’s objections, Exhibit 29, which is an affidavit by Lieutenant Both, subscribed and sworn to before a deputy attorney general of California on March 3, 1953, reading as follows:

“Norton Air Force Base

San Bernardino, California

March 3, 1953

“I, Baymond N. Both, 1st Lt. AO 962907, Hq 2796th Medical Group, USAF Hospital, Norton AFB, hereby give the following written statement freely and voluntarily without promise of any reward or immunity, with full realization that said statement may be or will be used at a hearing to be held before a hearing officer of the State of California in and for the State Board of Optometry, or at any'deposition necessarily set or required under the aforementioned hearing.

“Shortly after my arrival after being assigned to Norton AFB, San Bernardino, Calif., in the latter part of the month of June 1951, I first met Dr. A. B. Mast, having been asked by a mutual friend, a Dr. E. M. Lubow, at Dayton, Ohio, a schoolmate of Dr. Mast’s, to say hello. We met socially on many occasions and during one of these occasions Dr. Mast broached the subject of a referral fee for patients referred for corrective spectacles. I believe the referral fee was, as I remember, 10% of the gross in each case. The period in which this was continued was from approximately September 1951 until September 1952.- Originally payment was made in the form of employment for my wife, and later this was discontinued. This was a nominal employment. Later this practice was discontinued and direct payments were made to my wife. The payments were approximately $80 to $90 every month.

“I discontinued receiving any payment from Dr. Mast after September of 1952.

I, Baymond N. Both, have read the foregoing statement and I hereby state that it is my own.

(Signed) Baymond N. Both”

William J. McMahan, Special Agent for the United States Air Force, testified the signature of Lieutenant Both to Exhibit 29 was not obtained by duress; that no promise of immunity was offered; neither were any threats made, nor any coercion exercised. He further testified that Lieutenant Both was in upiform and did not appear to be ill.

Gene S. Boaz, Special Agent, 18th District Office of Special Investigation, Norton Air Base, testified to a conversation with Mrs. Both, in the presence of her husband, in which she stated that she had never been employed by Dr. Mast for any particular work, that she was merely placed on the payroll as a means to convey a percentage or referral fee that was promised by Dr. Mast to her husband for referring patients from Norton Air Base to his optometry office in San Bernardino. Special Agent Boaz also testified that Both told him Dr. Mast had offered him 10 per cent of the gross business that he referred to Mast’s office and that this amounted to approximately $1,500 over the period September 1951 to September 1952.

The trial court found, after exercising its independent judgment on all the evidence, that petitioner did violate the provisions of section 650, supra, in the following manner: “That in or about the month of July, 1951, the [petitioner] and said Both entered into an oral agreement whereby the said Both would refer military personnel or their dependents from .the Norton Air Base to the [petitioner’s] offices, located at 509 E Street, San Bernardino, California, for optometrieal services, and that in consideration of said Both so referring military personnel or their dependents to said [petitioner] for optometrieal services, the [petitioner] would pay said Both for said referrals; that it was further agreed between the [petitioner] and said Both that the payment for said referrals would not be made directly to said Both, but that said payments would be made to Audrey Both, the wife of said Both; that pursuant .to said oral agreement, said Both did refer, during the period from July, 1951, to in or about September, 1952, military personnel and their dependents from the Norton

Petitioner’s first" contention is that “the findings of fact are not supported by the evidence.” This contention is lacking in merit.

Petitioner’s solicitation of Lieutenant Roth for the optometrieal work from the air base; his furnishing of office supplies to facilitate the referral of such business; Lieutenant Roth’s identification of the referrals by his signature; the substantial number of such referrals; the segregation of the business from the air base on separate report sheets; the maintenance of a separate bank account for the money coming from this segment of petitioner’s business; the constant contact Lieutenant Roth maintained with petitioner’s office; petitioner’s admissions that he had to pay for the business from the air base; the checks made to Mrs. Roth; her admissions to Special Agent Boaz of the Norton Air Base; the affidavit of Lieutenant Roth subscribed and sworn to before a deputy attorney general; and the reasonable inference that may be drawn from this evidence furnish substantial support of the court’s finding to the effect that petitioner and Roth entered into an agreement by which the latter would refer military personnel and their dependents from Norton Air Base to petitioner’s office in San Bernardino for optometrieal services and that petitioner would and did pay Roth therefor by making such payments to his wife, Audrey. Having determined that there is substantial evidentary support for the findings, we need not, as a reviewing court, go further on this phase of the case. (Kendall v. Board of Osteopathic Examiners, 105 Cal.App.2d 239 [ 233 P.2d 107 ]; Ashdown v. State, 135

Petitioner asserts he was denied the qualified trial de novo to which he was entitled in a mandamus proceeding to review the administrative determination of a statutory agency exercising statewide jurisdiction. He predicates this argument on the trial court’s refusal to allow him to call Mrs. DeRosie and Dr. Harris “for further cross-examination and impeachment.” He relies on the following language from Dare v. Board of Medical Examiners, 21 Cal.2d 790 , 799-800 [ 136 P.2d 304 ] : “If the credibility of witnesses before the board be brought in question in the mandamus proceeding the opportunity should be afforded for further examination or to contradict or impeach their testimony under well recognized rules of evidence and procedure.” In arguing this point before the trial court, Mr. Gomer, petitioner’s counsel, stated he wished to cross-examine Mrs. DeRosie as to the number of times she talked with Dr. Mast, claiming he was prevented from pursuing this inquiry by the hearing officer. However, Mr. Gomer conceded this had been answered by Mrs. DeRosie with the statement “I don’t recall.” Mr. Gomer then stated: “Now, I don’t know if anything relevant would come from such a cross-examination . . . maybe she does not recall, but I say that is evasive tactics.” Mr. Gomer, in stating

The court’s ruling was sound and within the legitimate bounds of its discretion. (Code Civ. Proc., § 1094.5, subd. (d).) The record shows that petitioner was given ample opportunity to impeach Mrs. DeRosie by the hearing officer. He was curtailed only when he sought to employ improper impeachment methods or when he persisted in asking questions which had already been answered to the best of the witness’s ability, though not to his satisfaction. The weight to be given her testimony was for the trial court in its independent review of the record. A mere attack on the credibility of a witness does not entitle a party, in the mandamus action, to call that witness for further examination and impeachment unless a showing is made to the satisfaction of the trial court that he was unreasonably foreclosed from proceeding with his impeachment at the original hearing or that he has available new impeaching evidence which he could not with reasonable diligence have produced before the board. (See Code Civ. Proc., § 1094.5, subd. (d); Sautter v. Contractors’ State License Board, 124 Cal.App.2d 149 , 154 [ 268 P.2d 139 ].) The language previously quoted from Dare v. Board of Medical Examiners, supra, when read in the light of the issue before the court and in conjunction with the several sentences immediately preceding it, harmonizes perfectly with the view here expressed. For it was the essential purpose of the Dare case, and of Code of Civil Pro

Paragraph III of the accusation alleges: “That Raymond Ñ. Roth, First Lieutenant, 2769th Medical Group, USAF Hospital, Norton Air Base, at the times mentioned in this Accusation was not and is not now licensed to engage in the practice of optometry in the State of California by the State Board of Optometry;

“That in or about the month of July, 1951, the respondent and said Raymond N. Roth entered into an oral agreement whereby for the referral by Raymond N. Roth of military personnel or their dependents from Norton Air Base to Respondent’s offices in San Bernardino, California, for optometrical services that said Raymond N. Roth would receive from respondent a 10% commission on the gross fee charged or collected for optometrical services by respondent from the referred military personnel or their dependents;

“That pursuant to the above-mentioned agreement between the respondent and Raymond N. Roth, from September, 1951, to September, 1952, Raymond N. Roth referred military personnel and their dependents for optometrical services to the respondent; that pursuant to their agreement the respondent paid to Raymond N. Roth or his wife, Audrey Roth, about $90.00 per month as said Raymond N. Roth’s 10% commission for the referral of the above-mentioned persons to the respondent by Raymond N. Roth; and that said 10% commission paid to Raymond N. Roth was unearned consideration for the referral of the above-mentioned persons.”

Section 11503 of the Government Code provides in part: “The accusation shall be a written statement of charges which shall set forth in ordinary and concise language the acts or omissions with which the respondent is charged, to the end that the respondent will be able to prepare his defense.”

A mere reading of the accusation demonstrates that it adequately advised petitioner of the “nature of the conduct asserted to be improper” and sufficiently acquainted him with the acts with which he was charged to enable him “to prepare his • defense. ” To require, as petitioner argues, that the accusation must state particular individuals were referred by Lieutenant Roth to petitioner at specific times, and that in return for such referrals Roth was paid specific sums at

Petitioner also argues that “the findings are insufficient to support a violation of section 650 of the Business and Professions Code. His theory is that the section was designed to prevent patients from being charged excessive fees in order that a “kickback” could be made to the licentiate who made the referral. He then argues that since there is no finding that petitioner charged the military personnel or their dependents who were referred to him by Lieutenant Roth a fee higher than that charged by him for other like services, he cannot be held to have violated the law. The statute is not so limited. It was designed to protect the public and to prohibit all unearned rebates, refunds, commissions and the like among licentiates engaged in the healing arts for the referral of patients. An excessive charge is not an element of the offense. The absence of such a finding is, therefore, wholly immaterial.

Petitioner’s final contention is that the trial court erred in not remanding the matter to the board for reconsideration of the penalty. He argues that the board’s order revoking his license was based on its finding and conclusions that petitioner had violated sections 3100, 3101 and 650 of the Business and Professions Code. Inasmuch as the court found there was no violation of sections 3100 and 3101, he asserts that it is questionable whether the board would have imposed so drastic a penalty as license revocation for a violation of section 650 alone, and hence the court should have referred the case to the board for reconsideration of the penalty.

This argument would be a compelling one if the state of the record admitted of any doubt as to whether the board would have exacted so severe a penalty for petitioner’s violation of section 650 alone. It is now fully established that where an agency exercising statewide jurisdiction has imposed a single penalty based on multiple charges of misconduct, and the court holds some of them to be unsupported, the practice normally to be employed is to return the case to the administrative agency with a direction to reconsider the penalty to .be imposed. (Bonham v. McConnell, 45 Cal.2d 304 [ 288 P.2d 502 ]; Cooper v. State Board of Medical Examiners, 35 Cal.2d 242 [ 217 P.2d 630 , 18 A.L.R.2d 593 ];

The circumstances in the Cooper and Bonham cases do not parallel the case at bar in one vital feature. For here the board itself has supplied to the trial court and the appellate tribunal its view as to the penalty to be imposed for a violation of section 650, so that we have a “means of knowing whether the board itself would have imposed so severe a penalty for violation” of that section alone. And it has exercised its discretion not on the basis of a single order of revocation based on its collective findings but by segregating the findings

The judgment is affirmed.

Moore, P. J., and Ashbum, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied March 28, 1956. Carter, J., was of the opinion that the petition should be granted.