that discipline was appropriate pursuant to Business and Professions Code1 sections 2239
and 2660 based on Walker's use of alcohol in a dangerous manner. On appeal, Walker
argues the court erred because the statutes do not permit discipline of a physical therapist
based on a single isolated instance of alcohol use in a dangerous manner without a
specific finding of a nexus between the conduct at issue and the fitness of the individual
to practice physical therapy. We conclude sections 2239 and 2260 did permit the Board
to impose discipline in this context and affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
Walker became a licensed physical therapist in the state of California in 1978.
Between 1978 and 2011, she remained in good standing with the Board, was never
subject to discipline, and received only one citation, which related to a billing issue.
During that time, she also had no history of alcohol related offenses or complaints.
1 All further statutory references are to the Business and Professions Code unless otherwise noted. 2
The Collision and Criminal Proceedings
On the evening of January 1, 2011, around 6:00 p.m. Walker left her home in a
gated residential community and drove while under the influence of alcohol to pick up
dinner at a nearby restaurant. As Walker navigated the narrow streets of the community,
she "nicked" a parked car. She backed up to check for damage and hit a second parked
car, breaking the tail light of that car and denting the bumper of her own car. She got out
of her car to assess the damage and recognized the second car as belonging to a neighbor
that was out of town attending a football game. Norma Carmona and her husband, who
had been walking down the street when the collision occurred, saw Walker stumble as
she exited her vehicle. Carmona asked if Walker was okay, but Walker did not respond
and instead got back into her car and drove away.
Carmona went to a nearby house and knocked on the door to report the collision.
The homeowner, Patricia Thompson, was having a dinner party and some of the guests
went outside to check their cars for damage. Thompson telephoned the gatehouse for the
community and informed the security guard 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.
3
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.
4
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 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.
5
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,
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 problem or that there
were any related deficiencies in her practice. The decision concluded, however, that
Walker was nevertheless subject to discipline based on the hit and run conviction and her
6
use of alcohol in a dangerous manner on January 1, 2011. The Board declined to adopt
the proposed decision and, after reviewing the transcripts from the hearing and additional
briefing by the parties, the Board issued its own decision.
The Board found the evidence suggested Walker was impaired when she left her
home on the evening of January 1, 2011 and hit at least two parked cars. The Board
noted Walker admitted to drinking two glasses of wine at the restaurant and thus found it
troubling that she then drove with even more alcohol in her system after the accident. It
also found Walker's testimony at the hearing that she drank 6 to 7 ounces of vodka at
home just before the police arrived was replete with inconsistencies and likely a
fabrication, calling into question her truthfulness and credibility. Ultimately, the Board
concluded clear and convincing evidence supported a finding that Walker was driving
while under the influence of alcohol when she caused the collision and expressed concern
that she had failed to accept responsibility for her conduct.
The Board therefore determined cause existed to discipline Walker pursuant to
former section 2660, subdivision (d) because she had been convicted of a crime
substantially related to her qualifications, functions, or duties as a physical therapist; and
pursuant to former section 2660, subdivision (h)2 and section 2239 because she used
alcohol in a manner or to an extent as to be dangerous to herself, to another person or to
2 The accusation and decision after nonadoption refer to former section 2660, subdivision (h) with respect to the second and fourth counts, which is similar to current section 2660, subdivision (a). (See Stats. 2013, ch. 389, §§ 54, 3640-3643 [reordering subdivisions]; § 2660, subd. (a).) There is no dispute the Board based its decision in this regard on an alleged violation of section 2239, part of the Medical Practice Act, or that section 2660 has, at all relevant times, permitted discipline based on such a violation. 7
the public. The Board revoked Walker's license but stayed the revocation and placed
Walker on probation for a period 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 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.
8
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.
I. Failure to Exhaust Administrative Remedies
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.) 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
9
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.)
We therefore conclude Walker has not waived any asserted argument, and address
the merits of her contentions.
II. The Statutes Permitted the Board to Impose Discipline
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.) 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 (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 (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
10
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; Marek, supra, 16
Cal.App.4th at pp. 1095-1096; see also Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799-
801 [questions of law, including statutory interpretation, are subject to de novo review].)
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;
Emslie v. State Bar (1974) 11 Cal.3d 210, 226.) 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
11
instead derive from a potential for future adverse impacts. (Watson v. Superior Court
(2009) 176 Cal.App.4th 1407, 1415 (Watson).)
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 [finding
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
14
discipline Walker without making a separate nexus finding. (See Watson, supra, 176
Cal.App.4th at pp. 1411, 1424.)
Walker asserts both Watson and Griffiths v. Superior Court (2002) 96 Cal.App.4th
757 (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; Griffiths, supra, at p. 762.) 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.) 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 (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
15
for the health and welfare of their patients. 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; Watson, supra, 176
Cal.App.4th at p. 1421.) Walker also asserts Sulla is distinguishable because the
discipline there was based on Sulla's conviction for driving under the influence, but the
court in Sulla relied on both the dangerous use and alcohol-related provisions and, in any
event, the fact remains that the discipline was based on only one instance of improper
alcohol use. (Sulla, supra, 205 Cal.App.4th at p. 1201.)
Moving beyond the plain meaning of section 2239 itself, Walker contends the
legislative history indicates the Legislature was referring to the habitual use of alcohol—
and not a single isolated incident—when it defined the use of alcohol in a dangerous
manner as unprofessional conduct. We do not find the argument compelling. The plain
meaning of the statute can be ascertained from section 2399 itself, and there is no need to
turn to the legislative history to impart some additional meaning. (See Borikas v.
Alameda Unified School District (2013) 214 Cal.App.4th 135, 146.)
16
Further, even if we do look to the legislative history, it does not reveal an intention
by the Legislature to require the habitual use of alcohol, but instead indicates the
Legislature was attempting to define problematic uses of alcohol more specifically.
Walker asserts the Legislature added the language regarding the use of alcohol in a
dangerous manner in section 2239 to replace the phrase "habitual intemperance", thereby
implying the language must relate to the habitual use of alcohol. (See Sen No. 1071,
Reg. Sess. (1947); Stats. 1947, ch. 308, § 1, p. 867.)3 However, in so doing, the
Legislature sought to replace an ambiguous term with a more specific and well defined
set of criteria to provide additional guidance as to when the use of alcohol was
sufficiently related to the practice of the profession to justify the imposition of discipline.
(See James A. Arnerich, Director Dept. of Prof. and Vocational Stds., Inter-Departmental
Communication to Earl Warren, Gov. of Cal., May 9, 1947) As we give significance and
meaning to all words in the statute, we decline Walker's suggestion that we limit the more
detailed language in the current version of section 2239 to the ambiguous term the
Legislature sought to replace. (See City and County of San Francisco v. Farrell (1982)
32 Cal.3d 47,54.) Moreover, section 2660 continues to list "habitual intemperance" as a
ground for discipline separate from violations of the Medical Practice Act, further
indicating the Legislature did not intend section 2239 to be limited to conduct
demonstrating "habitual intemperance." (See McLaughlin v. State Bd. of Education
3 The Board submitted an unopposed motion for judicial notice of a number of items related to the legislative history, dated July 25, 2016. Evidence Code sections 452 and 459 permit this court to take judicial notice of such materials, and we hereby grant the motion. 17
(1999) 75 Cal.App.4th 196, 211 [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 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
18
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.
O'ROURKE, J.
WE CONCUR:
HALLER, Acting P. J.
IRION, J.
19
Filed 11/8/17 COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
GRACE LORRAINE WALKER, D071984
Plaintiff and Appellant,
v. (Super. Ct. No. 30-2015-00769721)
PHYSICAL THERAPY BOARD OF ORDER CERTIFYING OPINION CALIFORNIA, FOR PUBLICATION
Defendant and Respondent.
THE COURT:
The opinion in this case filed October 16, 2017, was not certified for publication.
It appearing the opinion meets the standards specified in California Rules of Court, rule
8.1105(c), the respondent's request pursuant to California Rules of Court, rule 8.1120(a)
for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and ORDERED that the words
"Not to be Published in the Official Reports" appearing on page one of said opinion be
deleted and the opinion herein to be published in the Official Reports.
HALLER, Acting P. J.
Copies to: All parties
AI Brief
AI-generated · verify before citing
Holding. The court held that the Physical Therapy Board of California may discipline a physical therapist for a single instance of using alcohol in a dangerous manner under Business and Professions Code sections 2239 and 2660 without a separate finding of a nexus between that conduct and the therapist's professional practice.
Issues
Whether Business and Professions Code sections 2239 and 2660 permit the Board to impose discipline for a single isolated instance of alcohol use in a dangerous manner.
Whether a separate finding of a nexus between the conduct and the individual's fitness to practice is required to impose discipline under these statutes.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“the plain language of section 2239 indicates any use of alcohol in a dangerous manner constitutes unprofessional conduct.”