Walker v. Physical Therapy Bd. of Cal.

her petition for a writ of administrative mandamus. The petition asked the court to set aside a decision of the Physical Therapy

At 7:38 p.m., Newport Beach Police Officer Sarris arrived at Walker's residence. Officer Sarris noted Walker smelled of alcohol, was unsteady on her feet, and had red, watery eyes. Based on these observations, he called for a DUI enforcement officer to evaluate Walker. He then examined Walker's vehicle and took photos of the damage.

Officer Miller, the DUI enforcement officer, arrived at Walker's home at 7:52 p.m. He also noted Walker was unsteady, had red, watery eyes and droopy eyelids, and that she emitted a strong odor of alcohol. He asked if she had consumed any alcohol and she stated she had one glass of wine one hour ago at the restaurant. He asked her twice if she had drunk any alcohol since returning home from the restaurant and she said "no" both times. She said she had eaten at the restaurant but had not eaten the food she brought home yet. After conducting a number of sobriety tests, Officer Miller determined Walker was under the influence of alcohol and arrested her. She agreed to take a breathalyzer test following the arrest, and her blood alcohol content (BAC) measured .19 percent at 8:24 p.m. and .20 percent at 8:28 p.m.

Walker was charged with one count of driving under the influence of alcohol in violation of Vehicle Code section 23152, subdivision (a) ; one count of driving with blood alcohol of 0.08 percent or more in violation of Vehicle Code section 23152, subdivision (b) ; and one count of hit and run with property damage in violation of Vehicle Code section 20002, subdivision (a). In June 2012, Walker pled guilty to misdemeanor count of hit and run and, in exchange, the two alcohol related charges were dismissed.

Board Proceedings

A few months later, in October 2012, the Board served an accusation on Walker, seeking to revoke or suspend her physical therapy license based on the January 2011 collision and resulting conviction. The accusation contained four causes of action: (1) conviction of a crime substantially related to the qualifications, functions or duties of a physical therapist; (2) use of alcohol in

a physical therapy aid that worked at Walker's practice testified Walker was professional and respectful with her patients, had never acted impaired or impacted by alcohol at work, and had never drank alcohol at office events, even after-hours celebrations.

Two forensic experts testified, one for Walker and one for the Board. Erin Nixt, a forensic scientist employed by the Orange County Sheriff-Coroner's Department, testified the maximum BAC for a woman of Walker's weight after 2.5 standard drinks would be .067 percent. Based on the breathalyzer test conducted on Walker the evening of the collision, Nixt opined Walker had consumed 6.5 to 7.5 standard drinks that evening and her BAC when she was driving at 6:40 p.m. was approximately .21 to .22 percent. In light of Walker's testimony that she drank only after the accident, Nixt opined Walker would have had to drink 4.5 to 8 standard drinks between 6:40 and 7:36 p.m. to have a BAC of 0.19 at 8:20 p.m. A forensic expert hired by Walker opined that if Walker drank 7 ounces of wine at the restaurant between 6:00 and 7:00 p.m. followed by 6 ounces of vodka between 7:10 and 7:38, she would have had a BAC of only 0.04 percent when she drove home and would have been at her peak BAC when she was tested at 8:24 p.m.

In a proposed decision, the administrative law judge found the evidence did not support a finding that Walker had an ongoing alcohol dependency

of two years or one year after the successful completion of a drug and alcohol recovery monitory program, whichever was later. The Board required Walker to obtain a clinical diagnostic evaluation regarding substance abuse within 15 days and stated that there would be no further requirements under the alcohol provisions of her probation if the evaluation determined Walker did not have a substance abuse problem.

Petition for Writ of Mandamus

Walker filed a petition for a writ of mandamus in the superior court, asking the court to direct the Board to set aside its decision and dismiss the

A. Standard of Review

When considering a petition for a writ of mandamus arising from an administrative decision that imposes discipline on a professional licensee, the trial court reviews the entire record and exercises its independent judgment regarding the facts. ( Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763 , 789, 72 Cal.Rptr.2d 624 , 952 P.2d 641 .) On appeal from the trial court's judgment on the writ petition, an appellate court gives the trial court's decision the same effect as any other judgment. ( Green v. Board of Dental Examiners (1996) 47 Cal.App.4th 786 , 796, 55 Cal.Rptr.2d 140 ( Green ).) We review the trial court's factual findings for substantial evidence and independently determine issues of law pursuant to a de novo standard of review. ( Ibid . ; Marek v. Board of Podiatric Medicine (1993) 16 Cal.App.4th 1089 , 1095-1096, 20 Cal.Rptr.2d 474 ( Marek ).)

Here, the trial court reviewed the administrative record and found that the Board's factual findings were supported by the weight of the evidence, and the parties do not dispute the trial court's findings in that regard on appeal. In her briefing, Walker specifically states that "she does not argue on appeal the factual findings are in error" and that, although she disagrees with certain findings, she "understands the presumption of correctness of factual findings, and has chosen not to challenge those findings on appeal." Instead, Walker's argument on appeal is limited to a question of statutory interpretation; specifically, she contends that the trial court's finding that she used alcohol in a dangerous manner is not sufficient to support discipline under the relevant statutes absent a separate factual finding that her conduct substantially affected her ability to practice her profession.

As neither party asserts the factual findings of the trial court were not supported by substantial evidence, this court need not review those findings. Instead, our review is limited to the question of whether the relevant statutes permit the imposition of discipline based on the trial court's findings, if accepted as true. That is a question of law that we independently review. ( Green, supra, 47 Cal.App.4th at p. 796, 55 Cal.Rptr.2d 140 ; Marek, supra, 16 Cal.App.4th at pp. 1095-1096, 20 Cal.Rptr.2d 474 ; see also Ghirardo v. Antonioli (1994) 8 Cal.4th 791 , 799-801, 35 Cal.Rptr.2d 418 , 883 P.2d 960 [questions of law, including statutory interpretation, are subject to de novo review].)

Of particular relevance here, the Legislature has determined that a physical therapist's use of alcohol to the extent or in such a manner as to pose a danger to the therapist or to others is unprofessional conduct substantially related to the qualifications, functions or duties of the therapist, and thus an appropriate basis for discipline. Section 2239, subdivision (a) is part of the Medical Practice Act and states: "[T]he use of any of the dangerous drugs specified in [s]ection 4022, or of alcoholic beverages, to the extent, or in such a manner as to be dangerous or injurious to the licensee, or to any other person or to the public, or to the extent that such use impairs the ability of the licensee to practice medicine safely or more than one misdemeanor or any felony involving the use, consumption, or self-administration of any of the substances referred to in this section, or any combination thereof, constitutes unprofessional conduct." (See also § 2000 [defining the Medical Practice Act]; Watson, supra, 176 Cal.App.4th at pp. 1419-1420, 98 Cal.Rptr.3d 715 [finding section 2239, subdivision (a) constitutionally valid].)

Both the Board and the Legislature have applied this provision of the Medical Practice Act to the licensing and discipline of physical therapists. First, California Code of Regulations, title 16, section 1399.20 states an "act shall be considered to be substantially related to the qualifications, functions or duties of a person holding a license under the Physical Therapy Practice Act if to a substantial degree it evidences present or potential unfitness of a person to perform the functions authorized by the license in a manner consistent with the public health, safety or welfare. Such crimes or acts shall include but not be limited to the following: ...

In Watson , supra, 176 Cal.App.4th 1407 , 98 Cal.Rptr.3d 715 , the Medical Board of California revoked the license of a physician based on four arrests for driving under the influence. ( Id . at pp. 1411-1412, 98 Cal.Rptr.3d 715 .) None of the arrests had resulted in a conviction, although criminal charges related to the most recent arrest were still pending at the time the administrative hearing. ( Id . at p. 1413-1414, 98 Cal.Rptr.3d 715 .) On appeal, the physician asserted section 2239 permitted discipline based on the use of alcohol in a dangerous manner only if there was a separate finding establishing a nexus between such use and the physician's ability to practice medicine safely. ( Id . at p. 1411, 98 Cal.Rptr.3d 715 .) The court determined the Legislature had made an implied finding that the use of alcohol in a dangerous manner was de facto unprofessional conduct that substantially related to the physician's fitness to practice medicine such that no further finding was required in an individual case, and that it was constitutional for the Legislature to establish the nexus in this manner. ( Id . at pp. 1418-1424, 98 Cal.Rptr.3d 715 .)

Although Watson addressed the discipline of a physician under section 2239 of the Medical Practice Act, the Board and the Legislature have

However, the Legislature has declared otherwise. The language of section 2762-the provision at issue in Sulla -is similar to that of section 2239, and both establish a nexus between the use of alcohol in a dangerous manner and the fitness of a healthcare professional, either a nurse or physician, to treat patients. By incorporating the Medical Practice Act, including section 2239, into the guidelines for disciplining physical therapists, the Legislature has indicated the same nexus exists with respect to a physical therapist's fitness to treat patients. We do not question the Legislature's wisdom in making that conclusion, particularly where courts have found both statutes to be constitutional. ( Id . at p. 1207, 140 Cal.Rptr.3d 514 ; Watson , supra , 176 Cal.App.4th at p. 1421, 98 Cal.Rptr.3d 715 .) Walker also asserts Sulla is distinguishable because the discipline

McLaughlin v. State Bd. of Education (1999) 75 Cal.App.4th 196 , 211, 89 Cal.Rptr.2d 295 [individual statutes must be construed with reference to the entire scheme of law].)

In the event that we conclude, as we do, that section 2239 permits discipline based on a single use of alcohol in a dangerous manner, Walker

Grace Lorraine Walker appeals from a judgment of the superior court denying

that someone had hit a parked car and then left the scene. Shortly thereafter, at 6:41 p.m., Thompson also reported the collision to the Newport Beach Police Department.

Meanwhile, Walker continued on to the restaurant to pick up her dinner. She ordered a glass of wine and, while waiting for her food, the restaurant gave her a complimentary eggroll and refilled her wine. After finishing the second glass of wine and eggroll, Walker left with her food. When she returned home, her husband was not ready for dinner so Walker took the food to the kitchen.

a dangerous manner; (3) violation of provisions of the Physical Therapy Practice Act based on the allegation in (1); and (4) violation of the Medical Practice Act based on the allegations in (2).

Walker denied the charges and Administrative Law Judge Boyle held a 4-day hearing in the matter in June 2014. Walker testified that she had not had any alcohol before leaving the house to pick up dinner on the evening of the collision but that she had accidentally struck her head on her husband's desk shortly before leaving the house. She recalled hitting the parked car but did not see any damage when she got out to check and, knowing the owner was out of town, she planned to contact him when he got back. She testified that she drank approximately one and three-quarters glasses of wine at the restaurant while waiting for her food. She further testified that when she arrived home after picking up the food, she made herself a drink of two different types of flavored vodka, totaling approximately six ounces of seventy and eighty proof alcohol, and drank the entire glass in the 35 to 45 minutes before the police arrived. This was the first and only time she had drunk flavored vodkas and she had bought the vodka earlier that week based on a recent recommendation for the drink.

Walker's husband testified he was working in his home office most of the day and did not know whether Walker drank any alcohol before or after she went to pick up dinner. He also stated he had never seen Walker drink alcohol before work. In addition,

accusation against her. Following briefing and argument by the parties, the superior court determined the misdemeanor hit and run conviction was not sufficiently related to Walker's qualifications, functions or duties as a physical therapist to warrant discipline under former section 2660, subdivision (d), but that the evidence supported a finding Walker used alcohol in a dangerous manner on January 1, 2011, and that former section 2660, subdivision (h) allowed the Board to impose discipline based on that finding. The court thus concluded the Board had not abused its discretion by disciplining Walker, and therefore denied the writ petition and entered judgment in favor of the Board.

Walker appeals.

DISCUSSION

Walker asserts the court erred in denying her writ petition because it incorrectly interpreted the governing statutes when it concluded a single isolated use of alcohol in a dangerous manner was sufficient to permit the Board to impose discipline without making a separate finding that the conduct substantially affected her professional practice.

The Board asserts Walker waived the assertion an isolated incidence of alcohol use cannot support the imposition of discipline by failing to raise it at the administrative hearing or in her writ petition. We disagree.

The principle of administrative exhaustion requires a litigant to present all arguments to the administrative body, and thus providing the body a full opportunity to address and respond to each argument, before raising them on appeal. (See Citizens for Open Government v. City of Lodi (2006) 144 Cal.App.4th 865 , 874, 50 Cal.Rptr.3d 636 .) Here, Walker has consistently argued, both to the Board and in connection with its petition for writ of mandamus in the superior court, that section 2239 requires more than an isolated instance of improper alcohol use. For example, in her written arguments to the Board, submitted in October 2014, Walker asserted reading section 2239 in the context of the constitutional nexus requirement, the dangerous use of alcohol referenced therein "must be more than a single isolated instance." Although Walker's arguments have evolved over time, in part based on the decisions put forth by the Board and the superior court, her fundamental arguments have remained the same. Moreover, to the extent Walker's assertions on appeal deviate from her assertions below, this court has the discretion to consider new arguments so long as they relate to the application of law to undisputed facts. ( Canister v. Emergency Ambulance Services (2008) 160 Cal.App.4th 388 , 396, 72 Cal.Rptr.3d 792 .)

We therefore conclude Walker has not waived any asserted argument, and address the merits of her contentions.

B. Legal Principles and Statutes Concerning Discipline Based on Alcohol Use

Every person has a right to practice the profession of his or her choosing and arbitrary restrictions of that right violate an individual's constitutional right to due process. ( Cartwright v. Board of Chiropractic Examiners (1976) 16 Cal.3d 762 , 767, 129 Cal.Rptr. 462 , 548 P.2d 1134 ; Emslie v. State Bar (1974) 11 Cal.3d 210 , 226, 113 Cal.Rptr. 175 , 520 P.2d 991 .) Revocation or suspension of a professional license therefore requires a finding of some nexus between the conduct at issue and the fitness of the individual to practice that profession. ( Ibid. ) At the same time however, the nexus between the misconduct and discipline need not relate to an actual adverse impact on the individual's day-to-day professional practice, but may instead derive from a potential for future adverse impacts. ( Watson v. Superior Court (2009) 176 Cal.App.4th 1407 , 1415, 98 Cal.Rptr.3d 715 ( Watson ).)

section 2660, subdivision (h), specifies that a physical therapy license may be suspended or revoked for unprofessional conduct and expressly defines such unprofessional conduct to include a violation of any provision of the Medical Practice Act. (See Stats. 2013, ch. 389, § 54, pp. 3640-3643. [revising section 2660 and reordering subdivisions].)

Thus, the Legislature has incorporated the provisions of the Medical Practice Act, including section 2239, into the guidelines for the professional discipline of physical therapists. In doing so, the Legislature made an implied finding that the use of alcohol in a dangerous manner is sufficiently related to a physical therapist's fitness to practice his or her profession to justify the suspension or revocation of his or her license. (See Watson, supra, 176 Cal.App.4th at p. 1422-1423, 98 Cal.Rptr.3d 715 [concluding section 2239 statutorily defines the use of alcohol in a dangerous manner as unprofessional conduct subject to discipline].)

C. Analysis

Here, the superior court found substantial evidence supported the Board's conclusion Walker was intoxicated at the time she hit the parked car, and that she therefore used alcohol in a manner dangerous to herself and others in violation of section 2239. Based on that finding, the court concluded the Board was justified in imposing discipline pursuant to section 2660. The court acknowledged there was no evidence alcohol use had actually affected Watson's professional practice, but concluded that the Board was not required to make a separate nexus finding based on the analysis of section 2239 set forth in Watson, supra, 176 Cal.App.4th 1407 , 98 Cal.Rptr.3d 715 .

incorporated the Medical Practice Act into the guidelines for the professional discipline of physical therapists, and has specifically defined a violation of any provision of the Medical Practice Act as unprofessional conduct warranting discipline. (See § 2660, subd. (a) ; Cal. Code Regs., tit. 16, § 1399.20.) As such, the reasoning in Watson is directly applicable in the present case and the superior court did not err in concluding the Board had the authority to discipline Walker without making a separate nexus finding. (See Watson, supra, 176 Cal.App.4th at pp. 1411, 1424, 98 Cal.Rptr.3d 715 .)

Walker asserts both Watson and Griffiths v. Superior Court (2002) 96 Cal.App.4th 757 , 117 Cal.Rptr.2d 445 ( Griffiths ), a case the court relied on in Watson , involved more than one alcohol related incident or conviction and thus cannot support the Board's imposition of discipline based on a single isolated use of alcohol in a dangerous manner here. However, neither case establishes multiple instances are necessary to establish a nexus; and instead, each supports the conclusion that the use of alcohol in a dangerous manner-or conduct resulting in alcohol-related convictions-meets the constitutional nexus requirement because the Legislature has appropriately determined it is unprofessional conduct logically related to the fitness of an individual to treat patients. (See Watson , supra, 176 Cal.App.4th at pp. 1413-1414, 1421, 98 Cal.Rptr.3d 715 ; Griffiths, supra, at p. 762, 117 Cal.Rptr.2d 445 .) Moreover, in Griffiths , the number of alcohol-related misdemeanor convictions at issue was relevant because section 2239 specifically defines either a felony conviction or more than one misdemeanor conviction related to alcohol as unprofessional conduct. ( Griffiths, supra, at pp. 770, 774, 117 Cal.Rptr.2d 445 .) By contrast, the plain language of section 2239 indicates any use of alcohol in a dangerous manner constitutes unprofessional conduct.

Further, as Walker recognizes, in Sulla v. Board of Registered Nursing (2012) 205 Cal.App.4th 1195 , 1207, 140 Cal.Rptr.3d 514 ( Sulla ) the court concluded the nursing board properly imposed discipline on a nurse based on a single incidence of driving under the influence of alcohol. Walker asserts this case is not instructive because it is not necessary to hold physical therapists to the same standard as nurses as nurses are more directly responsible for the health and welfare of their patients.

asserts California Code of Regulations, title 16, section 1399.20 requires more because it expressly requires that conduct be substantially related to the qualifications, functions or duties of a physical therapist to be grounds for discipline. However, Walker fails to acknowledge that the statute goes on to define a violation of any provision of the Medical Practice Act as an act substantially related to such qualifications, functions or duties. ( Cal. Code Regs., tit. 16, § 1399.20, subd. (c).) Thus, contrary to Walker's assertion, California Code of Regulations, title 16, section 1399.20 indicates a violation of section 2239 is substantially related to a physical therapist's qualifications, functions or duties, and is therefore sufficient to justify the imposition of discipline without a separate nexus finding.

Finally, Walker contends the passage of time between the 2011 incident and the Board's imposition of discipline mitigate against a finding that her alcohol use affected her fitness to practice physical therapy, particularly since she had no further documented incidents of misconduct related to alcohol in the interim period. Walker asserts there was a four-year delay between the incident and the imposition of discipline but that period includes the 18 months between the incident and Walker's plea, the administrative hearing, and the Board's reconsideration of the proposed decision. Walker provides no authority indicating the four-year period was unreasonable or that it precluded the imposition of discipline pursuant to sections 2239 and 2660. Moreover, the term of Walker's probation indicating the Board would remove the alcohol-related conditions if the required professional evaluation determined Walker was not abusing alcohol indicates the Board did consider the fact that there were no further reports of alcohol-related misconduct.

We therefore conclude the superior court did not err in determining the relevant statutes authorized the Board to impose discipline on Walker.

DISPOSITION

The judgment is affirmed.

WE CONCUR:

HALLER, Acting P. J.

IRION, J.