ROTH, P. J., Concurring. The majority reverses by applying the principle of In re Estrada, 63 Cal.2d 740 [48 Cal.Rptr. 172, 408 P.2d 948], to the enactment in 1972 of the California Uniform Controlled Substances Act which eliminated marijuana as a narcotic from Health & Safety Code section 11001 and failed to include marijuana as a narcotic in its successor section 11019.
Resting the judgment on that ground is a concession that the decision of Board of Medical Examiners (Board) at the time it was pronounced was lawful. The primary thrust of petitioner’s argument in the trial court and before us, however, is rejected. Petitioner has asserted from the beginning that a literal interpretation of section 2384, Business and Professions Code,* achieves the curious paradox of authorizing Board to revoke the license or otherwise discipline a doctor, even though Board’s findings, fortified by those of a trial court, show no misconduct equating with unfitness to practice medicine.
To prevent such a result our Supreme Court in Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67 [64 Cal.Rptr. 785, 435 P.2d 553] and Morrison v. State Board of Education (1969) 1 Cal.3d 214 [82 Cal.Rptr. 175, 461 P.2d 375] (decided at least two years before Board’s decision), held that no state board could impose discipline upon licensees subject to its jurisdiction without finding upon substantial evidence that the misconduct charged rendered the licensee unfit to exercise the privileges of the license.
Although I accept the Estrada escape, I believe the above principle rejected by the majority opinion should be followed and applied to this case.
At bench the findings of Board and the trial court suggest no unfitness. Severally and together they affirmatively recite fitness. The doctrine of Yakov and Morrison is followed in In re Higbie (1972) 6 Cal.3d 562 [99 Cal.Rptr. 865, 493 P.2d 97]; Vielehr v. State Personnel Bd. (1973) 32 Cal.App.3d 187 [107 Cal.Rptr. 852]; Comings v. State Bd. of Education (1972) 23 Cal.App.3d 94 [100 Cal.Rptr. 73, 47 A.L.R.3d 742]; and Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551 [96 Cal.Rptr. 863] (herein referred to collectively as cited cases).
[931]Morrison involved a violation of section 13202 of the Education Code (sexual misconduct). Morrison had charged that section 13202 lácked constitutional due process on the grounds that: its language was vague and general; right of privacy was invaded, and the conduct charged did not relate to his duties as a teacher. The Morrison court conceding the specificity of section 13202 declared that “. . . it, could constitutionally apply to petitioner.” (P. 230.)
In respect of violation of privacy the court said at pages 233-234: “It is true that an unqualified proscription against immoral conduct would raise serious constitutional problems. Conscientious school officials concerned with enforcing such a broad provision might be inclined to probe into the private life of each and every teacher, no matter how exemplary his classroom conduct. Such prying might all too readily lead school officials to search for ‘telltale signs’ of immorality in violation of the teacher’s constitutional rights. (Griswold v. Connecticut (1965) 381 U.S. 479, 485 [14 L.Ed.2d 510, 515, 85 S.Ct. 1678].) The proper construction of section 13202, however, minimizes the danger of such sweeping inquiries. By limiting the application of that section to conduct shown to indicate unfitness to teach, we substantially reduce the incentive to inquire into the private lives of otherwise sound and competent teachers.
“Finally, petitioner urges that ... his questioned conduct does not rationally relate to his duties as a teacher. . . . [T]he proper construction of section 13202 avoids this problem, for that interpretation would bar disciplinary action against petitioner unless the record demonstrated that petitioner’s conduct did indicate his unfitness to teach.” (Pp. 234-235.)
“. . . Petitioner’s conduct in this case is not disputed. Accordingly, we must inquire whether any adverse inferences can be drawn from that past conduct as to petitioner’s teaching ability, . . .
“As to this crucial issue, the record . . . contains no evidence whatsoever. The board called no medical, psychological, or psychiatric experts to testify as to whether a man who had had a single, isolated, and limited homosexual contact would be likely to repeat such conduct in the future. The board offered no evidence that a man of petitioner’s background was any more likely than the average adult male to engage in any untoward conduct with a student. The board produced no testimony from school officials or others to indicate whether a man such as petitioner might publicly advocate improper conduct. . . .
“This lack of evidence is particularly significant because the board failed to show that petitioner’s conduct in any manner affected his performance as a teacher.” (Pp. 235-236.)
[932]At bench Board produced no evidence as suggested above or otherwise to show that petitioner’s conduct as charged or otherwise affected his fitness as a doctor.1 To the contrary, the Board found in pertinent part: “He is youthful, a good doctor, and the episode had no effect on his medical ability of [sz'c] his patients’ well-being.”
The trial court found: “9. Between January 1, 1970, to and including September, 1970, Petitioner engaged in the self-use of marijuana, a narcotic as defined in Section 11001 of the Health and Safety Code of California. 10. The charges against Petitioner do not relate to his professional conduct, as a matter of fact.” In pertinent conclusions of law the trial court declared: “1. The charges against Petitioner do not render him unfit to practice his profession. 2. The revocation of Petitioner’s license herein constituted a taking of property without due process of law notwithstanding that petitioner’s conduct comes within the ambit of Business and Professions Code, sections 238.4 and 2390. 3. Respondent committed an abuse of discretion, within the meaning of Civil Procedure Code § 1094.5(b), in revoking petitioner’s license.”
All of the cited cases follow the principles of Morrison excerpted above.
Contra cases cited in the majority opinion and the brief of the Attorney General do not dispute the Morrison guidelines. (Wilson v. State Personnel Bd., 39 Cal.App.3d 218 [114 Cal.Rptr. 134]; Jennings v. Karpe (1974) 36 Cal.App.3d 709 [111 Cal.Rptr. 776]; McLaughlin v. Board of Medical Examiners (1973) 35 Cal.App.3d 1010 [111 Cal.Rptr. 353]; Collins v. Board of Medical Examiners (1972) 29 Cal.App.3d 439 [105 Cal.Rptr. 634]; Strode v. Board of Medical Examiners (1961) 195 Cal.App.2d 291 [15 Cal.Rptr. 879].) In each of the contra cases: discipline was imposed after a finding on substantial evidence fortified by a finding of a trial court of unfitness of the licensee irrespective of moral turpitude, or there was a finding of unfitness due to an act involving moral turpitude, corruption or dishonesty which so impugned and besmirched the character of the licensee irrespective of demonstrated competence in the ambit of duties covered by the license as to render him an unfit person to serve the public as a member of a privileged class licensed by the state.
[933]Of the contra cases Board relies primarily on Collins v. Board of Medical Examiners (1972) 29 Cal.App.3d 439 [105 Cal.Rptr. 634]. In Collins, section 2384 was one of four charges of unprofessional conduct all of which were proved. The thrust of Collins is that if unfitness is found it is not necessary that it be tied to a finding of moral turpitude. There is at bench no contention that it should be.
Collins treats of a violation of section 2384 among others, and finds that the violations there charged and proved rendered the doctor unfit. The conviction in Collins of the 2384 violation was that Collins furnished narcotics to a person not under his treatment; and in addition there were numerous violations of section 2399.5, and section 11163, Health and Safety Code.
The offenses in Collins included multiple convictions of Health and Safety Code section 11163 which prohibits a doctor “Except in the regular practice of his profession . . . [t\\o prescribe ... a narcotic to any person not under his treatment . . . .” (Italics added.) The Collins’ convictions were an abuse of Collins’ responsibilities to the medical profession, himself, his patients, and the public. Signing prescriptions is a significant part of the practice of medicine. In passing it should be noted that marijuana is not a narcotic or even as a controlled substance or a dangerous drug it is not such for which a doctor can issue a prescription to himself or others. Marijuana is for sale to anyone who can pay. There is no dispute that the Collins court on the evidence before it was warranted in affirming Board’s finding of unfitness.
Jennings v. Karpe (1974) 36 Cal.App.3d 709 [111 Cal.Rptr. 776] (filed Jan. 14, 1974) cited by Board, involves a real estate broker disciplined for conviction of conduct unrelated to the functions of his license (a felony violation of § 288a, admittedly an act involving moral turpitude). In Wilson, the most recent of the contra cases cited by Board, moral turpitude was the reason for discipline.
Other cases cited by Board have been examined. An analysis shows that discipline is imposed when the unprofessional conduct within or without the ambit of the licensed calling impairs the character, skill or competence of the licensee, and the evidence supports a finding of unfitness as in the case of Collins, or when the conduct of licensee inside or outside the ambit of the licensed calling involves moral turpitude, corruption or dishonesty and there is a finding that the licensee is unfit. In the latter situation the skill or competence of the licensee may or may not be involved; the character of the licensee is.
The majority concede, too, that if the unprofessional conduct charged [934]to petitioner under section 2384 were included in section 2390 Board would be required to make . . the additional showing that the doctor’s professional ability was impaired . . .
However, when the two sections are read together, which appears to have been the legislative intention independent of Morrison and the cited cases, it seems clear that the Legislature never did intend by mere ipse dixit to set up an arbitrary and conclusive presumption of unfitness.
Under section 2390 as a condition to impose discipline the majority concede Board must prove that use of a controlled substance “. . . is dangerous or injurious” to the licensee “. . . to the extent that such use impairs the ability of such person . . . .’’In brief, there must be a finding of unfitness. It should be noted, however, that the first clause of the first sentence of 2390 reads: “The use or prescribing for'. . . himself of narcotics specified in Sections 11001 or 11002 of the Health and Safety Code ...” (italics added) classes narcotics with dangerous drugs and alcoholic beverages in the clauses which immediately follow. It would appear, therefore, that the Legislature intended by the clause above quoted that 2384 and 2390 should be read together and that the hearing provided for in 2390 in respect of abuse by a licensee of alcohol or dangerous drugs should be extended to a self-user of narcotics and that the Legislature did specifically require proof and a finding that self-use of a narcotic, or a dangerous drug or alcohol “. . . impairs the ability of such person ... to conduct with safety to the public the practice authorized. . . .”
Petitioner asserts, too, that section 2384 if read alone and literally applied is unconstitutional since it incorporates an arbitrary conclusive presumption and deprives him of a property right without due process of law. (Stanley v. Illinois (1972) 405 U.S. 645 [31 L.Ed.2d 551, 92 S.Ct. 1208]; Cleveland Board of Education v. LaFluer (1974) 414 U.S. 632, 643 [39 L.Ed.2d 52, 62, 94 S.Ct. 791].) The trial court did, indeed, conclude that Board’s decision did deprive petitioner of a property right. Petitioner also asserts that the section is unconstitutional because it deprives him of equal protection of the law since a different application has been made of section 2384 with respect of an attorney (In re Higbie (1972) 6 Cal.3d 562 [99 Cal.Rptr. 865, 493 P.2d 97]), a teacher (Comings v. State Bd. of Education (1972) 23 Cal.App.3d 94 [100 Cal.Rptr. 73, 47 A.L.R.3d 742]), and an employee of the state (Vielehr v. State Personnel Bd. (1973) 32 Cal.App.3d 187 [107 Cal.Rptr. 852]). (All three cited cases involve marijuana.)2
[935]The majority opinion does not deal with this constitutional challenge. Morrison does meet the challenge but shows that the legislative intent was not to set up an arbitrary and absolute presumption, but that the statute there construed is only a guide to test unfitness. At bench Morrison is applicable in all respects and in addition it appears that the Legislature intended 2384 and 2390 to be read together. In these circumstances the direct constitutional question is not treated.
Board is a vital arm of the state government created by the Legislature to supervise and police its licensees to insure the public that doctors have a continuing good character and a continuing ability to practice medicine with that degree of skill and competence which meet the average norm of their profession. The state has not abdicated to Board its responsibility to punish for crime. It has done so in this case.3
The complete record shows that petitioner’s medical skill, proficiency and character were before the Board, trial court, and are before this court. There is no suggestion of unfitness or that his fitness was impaired as a competent doctor nor is there any suggestion that petitioner was unfit because his character was impaired by reason of moral turpitude, dishonesty or corruption.
The naked fact in the case at bench is that petitioner in fixed off duty hours, when his judgment was neither invited nor used, to alleviate personal distress, smoked marijuana and suffered a misdemeanor conviction as a result.
Board’s zealous efforts to fit petitioner’s conduct within a literal reading of 2384 predicated upon no evidence of unfitness other than the record of misdemeanor conviction was a procrustean hearing which might well have been dispensed with unless Board had a reasonable belief that the presumption of the statute could not be refuted. Since the refutation was overwhelming an objective Board should have dismissed the proceeding. An ex-
[936]pungement of Board’s decision is the effective and proper method to “out” the “damned spot.”4
A petition for a rehearing was denied October 15, 1974, and the petition of the defendant and appellant for a hearing by the Supreme Court was denied November 21, 1974.
A11 references herein are to Business and Professions Code unless otherwise noted.
Petitioner testified without contradiction that the episode occurred while he was in residency at the VA center (Wadsworth Hospital) and that although Dr. Jorgens, his immediate supervisor, attempted to persuade the hospital administrator to retain him, the administrator thought it was necessary for him to leave. Petitioner testified in part: “Dr. Jorgens . . . Dr. Mellinkoff of UCLA and Dr. Langdon, attempted to persuade the administrator that my abilities as a doctor had not been affected and that I would carry out m.y duties properly; the hospital administrator did not feel that I should continue there, or he was ordered by his superiors to ask me to leave.”
Possession of marijuana for one’s own use does not involve moral turpitude. Speaking on this subject, our Supreme Court in In re Higbie (1972) 6 Cal.3d 562, says at page 572 [99 Cal.Rptr. 865, 493 P.2d 97]: “Possession or use of marijuana [935]is, of course, unlawful (see Health & Saf. Code, § 11530 et seq.), but measured by the morals of the day (In re Hatch, supra, 10 Cal.2d at p. 151) its possession or use does not constitute ‘an act of baseness, vileness, or depravity . : . contrary to the accepted and customary rule of right and duty between map. and man’ (In re Craig, supra, 12 Cal.2d at p. 97), or indicate that an attorney is unable to meet the professional and fiduciary duties of his practice.” (Italics added.)
Yakov makes it clear that a disciplinary proceeding is not for punishment but to protect the public. (P. 73, fn. 6.)
In a letter to respective counsel, dated March 7, 1973, the trial court said: “The conditions of probation are so vague that petitioner could, conceivably, permanently lose his license for a minor infraction.”