CARTWRIGHT v. BOARD OF CHIROPRACTIC EXAMINERS

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Court of Appeal, Second District, Division 2, California.

Adam C. CARTWRIGHT, Jr., Petitioner and Respondent, v. BOARD OF CHIROPRACTIC EXAMINERS of the State of California, Appellant.

Civ. 43332.

Decided: November 20, 1974

Evelle J. Younger, Atty. Gen., Alan Hager, Deputy Atty. Gen., for appellant. Roger Jon Diamond, Hecht, Diamond & Freis, Pacific Palisades, for petitioner and respondent.

Board of Chiropractic Examiners (Board) found respondent guilty of moral turpitude in breach of section 10 of the Chiropractic Act,1 predicated upon undisputed evidence produced at a hearing regularly held pursuant to an Accusation which charged violations and convictions under sections 316 and 315 of the Penal Code, and revoked his license which had been issued on and under which he was authorized to practice chiropractic since February 28, 1959.

Superior court, exercising independent judgment, after a mandate review initiated by respondent pursuant to section 1094.5, reviewed the identical record upon which Board had based its decision and issued its peremptory writ vacating the Board's decision. Board appeals.

Board's Accusation filed in February 1972 alleges in paragraph 3 thereof: ‘Section 10 of the Chiropractic Act provides that the Board may suspend or revoke a license to practice chiropractic if a licensee has been convicted of a crime involving moral turpitude.

In the first count of the Accusation, a judgment of conviction on a nolo contendere plea to violation of section 316 of the Penal Code (keeping a disorderly house) is alleged and is followed by allegations of the date, place and specific facts of the violation, all of which were proved.

In a second count of the Accusation added in April 1972, a judgment of conviction of violation of section 315 of the Penal Code (keeping a house of prostitution) as a result of a guilty plea, is alleged. The date, place and underlying facts in respect thereof were not alleged but were proved.

The hearing called by Board was regular in all respects. Respondent was present in person and by counsel throughout. The complete record before Board comprised, in addition to the preliminary documents, the testimony of four witnesses, inclusive of respondent, and the transcript of the aforesaid judgments received without objection as Exhibit 2. The identical, record, except for atgument of counsel, was before the mandate court.

In respect of the 316 violation, it was established by witnesses and respondent admitted in pertinent part that: he was employed at a weekly wage at four locations owned by Hall and McGee womaned by masseuses who solicited and performed sex acts; the xeroxed copy of his license was displayed in the reception room in the place identified in the charged violation; he periodically appeared at these places and knew female operators were employed, but he denied that he knew that the females sold sex in various ramifications to the customers. There was no testimony that he performed chiropractic services at any of the places.

On January 18, 1972, in respect of the 315 violation, respondent testified that: he had been working at 872 Ladera Street in Pasadena for approximately one and one-half years, originally for Hall and McGee, but that he presently and for approximately six months prior was the sole owner and boss of the place; he bought McGee out in ‘May of this year * * * and since I have run it strictly on my own’; since his sole ownership three girls were employed; he took precautions to avoid illegal activity such as having curtains instead of doors on the massaging cubicles and having the girls checked for improper solicitation by friends who acted as undercover agents for him; sometimes during a massage he looks through the curtains; he needed a chiropractic license to operate an office in which females could give bathroom massages; and his intention is ‘to continue with my present operation * * * not to allow any acts of prostitution to go on in my place of business.’

Respondent contends and the mandate court agreed that the literal Accusation filed by Board rested upon separate judgments of conviction upon two separate criminal charges, one for the 316 violation to which a nolo plea was entered, and the second for the 315 violation to which a plea of guilty was entered, and that the undisputed evidence before Board could not be considered in respect of the 316 violation and was insufficient in respect of the 315 violation.

In respect of the 316 violation the mandate court in its findings recognized that the Board's Accusation ‘also purported to alleged the ‘circumstances' of the conviction’ although it omitted to make findings thereon, and held in effect that such evidence could not be considered in the administrative hearing conducted by Board because ‘the plea may not be held against defendant in any civil suit * * *’, citing Penal Code section 1016(3), and Grannis v. Board of Medical Examiners (1971) 19 Cal.App.3d 551, 557, 96 Cal.Rptr. 863, which includes an administrative hearing as a ‘civil suit’,2 and concluded, in respect of the 316 violation, ‘A plea of nolo * * * may not be considered to be a conviction for the purpose of applying section 10 of the Chiropractic Act’. As to the 315 violation, the trial court declared: ‘* * * mere conviction * * *, without underlying evidence * * * does not demonstrate moral turpitude sufficient to apply section 10 of the Chiropractic Act.’

There is no doubt that the evidence necessary for a conviction by Board for acts involving moral turpitude in respect of the 316 violation within the guidelines of Morrison v. Board of Education (1969) 1 Cal.3d 214, 227–229, 82 Cal.Rptr. 175, 461 P.2d 375, was before Board independent of the nolo plea and the conviction which followed. The Accusation in its charge of the nolo plea and judgment defined the offense involving a breach of section 10 and thereafter set out the facts upon which it intended to rely. After the Accusation was filed, respondent was formally notified and fully advised of the procedure which would follow, and specifically that evidence would be taken and that the burden was upon Board to prove its charges. The transcript of the nolo plea and judgment of guilt thereon was but a cumulative bit of evidence and was surplusage, and Exhibit II which contained the record of the plea and judgment was introduced without objection. The trial court erred when it did not consider the undisputed evidence before Board in respect of the 316 violation and in its omission to make findings thereon.

In respect of the 315 violation, it is true that the Accusation did not, as it did in connection with the 316 violation, aver the background facts which Board expected to and did prove. The record of the guilty plea and judgment thereon, however, were also as part of Exhibit II introduced without objection and as has been noted respondent was given the opportunity to and he did respond thereto. Unlike the nolo plea and the judgment which followed in respect of the 316 violation, the judgment of conviction on the 315 offense was on a plea of guilty and was admissible for all purposes. At bench Board did not as did the Board of Medical Examiners in Weissbuch v. Board of Medical Examiners, 41 Cal.App.3d 924, 116 Cal.Rptr. 479 (1974) rely solely on the judgment of conviction as a conclusive presumption to establish unfitness of respondent to practice chiropractic or that moral turpitude was established as an inherent part of the guilty plea. Board made the Accusation and presented evidence thereon, its witnesses were subjected to full cross-examination, and respondent was given an opportunity to and he did testify. Board did not rely alone on the guilty plea, but considered it as part of the evidence and made its decision to revoke respondent's license only after respondent had been afforded due process complete in all respects.3

In these circumstances it is clear that the mandate court was in error when in commenting upon the Board's decision in respect of the 315 violation it said ‘a mere conviction * * * without evidence of the underlying facts, [is] not * * * a demonstration of moral turpitude sufficient to apply section 10 of the Chiropractic Act. * * *.'4

The burden in respect of moral turpitude had been assumed and discharged by Board. The burden to prove lack of moral turpitude then shifted to respondent. (Evid.Code, §§ 110, 550; Borror v. Department of Investment (1971) 15 Cal.App.3d 531, 92 Cal.Rptr. 525.) He explained in his testimony that since he became the sole owner of the Pasadena property he was taking precautions to prevent the prostitution of his license at the Pasadena address. Thus, he pregnantly admitted prior misconduct at the Pasadena address and by his testimony or otherwise offered no evidence, except lack of knowledge of specific sex acts, in contradiction or extenuation of the evidence produced by Board.

At the conclusion of the Board hearing the Attorney General argued: ‘* * * if the Hearing Officer believes that Dr. Cartwright had knowledge of what was going on at these premises * * * I think this is extremely a gross abuse of a chiropractic license. It is using it * * * to avoid the laws which are made to control this type of activity.5

Respondent's counsel in reply stated: ‘The abuse certainly was present and whether or not the Hearing Officer concludes it was present strictly on the part of Hall and McGee or with a complicity or implied consent of Dr. Cartwright is one thing. I certainly would feel that, * * * the fact that Dr. Cartwright has now been operating under such tight controls, * * * should serve a mitigation. It is important and I would ask that be taken into consideration.’

The evidence of acts demonstrating unfitness of respondent to practice chiropractic is clear and the lack of specific findings of the trial court raise perplexing questions and create a result unfair to the public and to the vast majority of chiropractors. The testimony before Board including that of respondent shows overwhelmingly that Board properly revoked respondent's license because he had violated section 10 of the Chiropractic Act, by literally prostituting his license as a chiropractor and was unfit to practice as one. The effect of the peremptory writ is not only to absolve respondent of any unprofessional conduct involving moral turpitude, but to proclaim to the public and the profession that respondent is fit in all respects to practice chiropractic.

There is nothing in the Chiropractic Act which requires a criminal conviction as a condition precedent before Board may initiate a disciplinary proceeding for unprofessional conduct under that Act. Nor is there anything in the Act or the law which prevents Board from using as a part of the evidence to prove unfitness a guilty plea to an offense which involves unfitness.6

It is clear to us that Board on the record and by evidence independent of the nolo judgment proved the 316 violation and also that it established as a fact the 315 violation in opposition to which respondent offered promissory evidence of future conduct not in contradiction of the misconduct charged, but in hope of absolution from such misconduct.

‘We find nothing in the record impelling us to order a new trial. * * *. Nevertheless in view of its previous determinations, the court may deem it necessary * * * to receive additional evidence * * *. * * * [I]t is appropriate to remand the cause with directions to the trial court to make adequate findings on all issues, based on the evidence now in the record and such additional evidence as it may hereafter receive. [Citation.]

‘It is ordered, therefore, that the * * * [peremptory writ be vacated] and that the cause be remanded with directions to the trial court to set aside the findings of fact and conclusions of law; to receive such additional evidence as it may deem necessary * * *; thereafter having reexamined and redetermined all issues to make and file findings of fact thereon based upon the evidence, including that now in the record, and in conformity with the views herein expressed; to draw proper conclusions of law therefrom; and to enter judgment accordingly. Such findings of fact, conclusions of law and judgment shall be prepared, signed, filed and entered in the manner provided by law.

‘The * * * [peremptory writ is vacated] and the cause is remanded to the trial court to proceed with the disposition thereof under the directions and in conformity with the views herein expressed. Appellant shall recover costs on appeal.’ (England v. Christensen (1966) 243 Cal.App.2d 413, 435–436, 52 Cal.Rptr. 402, 416.)

I concur, but because the majority did not find it necessary to directly confront the issue of the effect of the nolo contendere plea, I feel that some comments on that are in order.

The starting point on the effect of a plea of nolo contendere should be Penal Code section 1016, which authorizes such a plea. The language of that statute simply says that the plea may not be used as an admission in any civil suit. Christensen v. Orr, 275 Cal.App.2d 12, 79 Cal.Rptr. 656, contains a correct interpretation of the effect of that language.

The effect of a nolo contendere plea to a criminal charge in a later civil proceeding depends upon whether, in the civil proceeding, the critical issue is the fact of conviction or the inculpatory effect of the plea.

For example, if a person involved in an automobile accident is charged with drunk driving, his conviction of that offense does not establish civil liability but his admission whether in court or out that he was in fact guilty of drunk driving could be used to establish liability. Thus if he pleads nolo contendere to the drunk driving charge that plea may not be used against him as such an admission. If on the other hand, a conviction, whether by plea or jury verdict was relevant to the issue of the civil proceeding, then it would be immaterial how that conviction came about.

In my opinion, Grannis v. Board of Medical Examiners, 19 Cal.App.3d 551, 96 Cal.Rptr. 863, is in error in quoting without critical analysis the language from Kirby v. Alcoholic Bev. etc. App. Bd., 3 Cal.App.3d 209, 83 Cal.Rptr. 89. Kirby was dealing with a statute that had rather specific and peculiar language and can be distinguished on that basis alone. Even in Kirby the court recognized that the use of the words ‘convicted or conviction’ in a statute such as Vehicle Code section 13352, which was the statute in Christensen, or as used in sections 1–10 of the Chiropractic Act, would produce a different result than was reached in Kirby.

The thing that is wrong with Kirby is its attempted analysis of the development of the law on this point in California and its purported conclusion that California has adopted a so-called ‘minority’ view in regard to this problem. The authority upon which Kirby appears to rely does not support that conclusion.

Caminetti v. Imperial Mut. L.Ins. Co., 59 Cal.App.2d 476, 139 P.2d 681, simply says that a plea of nolo contendere cannot be used as an admission against the party entering the plea. It is to be noted that Caminetti was decided before the enactment of Penal Code section 1016. It dealt with the effect of a plea of nolo contendere entered in a Federal court in proceedings which were being conducted in a State court where proof of fraudulent conduct was at issue not a conviction per se.

In re Hallinan, 43 Cal.2d 243, 272 P.2d 768, another case relied on in Kirby, refers to Caminetti in a passage which is pure dicta. Hallinan was contending in a disbarment proceeding that there were other lawyers who had been convicted of the same offense as he, i. e., income tax evasion, who had not been disbarred. The Supreme Court simply stated, in rejecting Hallinan's contentions, that he had been improperly singled out, that the State Bar was justified in not taking action against these other attorneys because they had pleaded nolo contendere. Hallinan is far from a definitive ruling on the issue insofar as California is concerned. Thus the Kirby court relied on dicta, erroneously interpreted it, and the Grannis court quoting verbatim from Kirby purports to establish a rule which is clearly not warranted by the language of the basic statute—Penal Code section 1016.

It is interesting to note that throughout this tortuous history no court has ever disapproved or overruled the Christensen decision. Some courts have labored mightily and, in my opinion, unsuccessfully to distinguish it.

The basic point is that where the fact of conviction provides the basis for disciplinary action a conviction may be so used even though based on a plea of nolo contendere.

FOOTNOTES

1.  In West's Annotated Business and Professions Code, each section of the Chiropractic Act is preceded by the number 1000. In Deering's Annotated Business and Professions Code the Chiropractic Act [Stats.1923, p. lxxxviii; Deering's Gen.Laws, 1954, Act 4811, p. 232] is included as an appendix to the code.

2.  We have accepted the trial court's application of Grannis for the purpose of this case (cf. Christensen v. Orr (1969) 275 Cal.App.2d 12, 79 Cal.Rptr. 656), but have noted that in Sunset Amusement Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64, 101 Cal.Rptr. 768, 496 P.2d 840, the court at page 75, at page 774 of 101 Cal.Rptr., at page 846 of 496 P.2d says: ‘Moreover, a serious question arises [emphasis added] whether petioners' inadequate parking conviction in 1967, being based upon a nolo contendere plea, properly could constitute grounds for administrative discipline. (See Pen.Code, § 1016, subd. 3; Grannis v. Board of Medical Examiners, 19 Cal.App.3d 551, 557–560, 96 Cal.Rptr. 863, and cases cited.) However, from our examination of the voluminous record herein, and its emphasis upon events occurring in 1968 and 1969, it is beyond question that the Board's decision rested primarily and alternatively upon petitioners' continuing failure to provide adequate parking facilities for Rollerbowl patrons and to control those patrons and prevent major disturbances in the area.’At bench it is clear from the record of the hearing that Board rested its decision on the relevant evidence taken at the hearing. To hold otherwise is to conclude that Board acts only if a chiropractor is initially apprehended and criminally punished.

3.  Sunset Amusement Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64, 81, 101 Cal.Rptr. 768, 779, 496 P.2d 840, 851: ‘Indeed, the record indicates that petitioners were not misled by the notice; counsel permitted the introduction of adverse testimony on the question without objection and actively litigated the matter throughout the hearings. (See Kirby v. Alcoholic Bev. etc. App. Bd., 3 Cal.App.3d 209, 216–217, 83 Cal.Rptr. 89 Vaughn v. Board of Police Comrs., 59 Cal.App.2d 771, 777–778, 140 P.2d 130.) As these hearings extended from December 1968 to June 1969, petitioners had ample time in which to prepare their defense.’At bench the Accusation was filed January 12, 1972 and the hearing was held January 18, 1973.

4.  In the Hastings Law Journal, Vol. 25, March 1974, No. 4, Justice Tobriner and Harold Cohen in an article entitled ‘How Much Process is ‘Due’?', say at p. 804: ‘Similarly, when state law provides for the dismissal of a teacher on the basis of a conviction of a specific crime, the teacher's guaranteed hearing may be very limited in scope, passing only on whether or not the teacher has in fact suffered such a conviction. * * * To illustrate how the importance of a particular safeguard varies with the substance of the injury, and how the individual attributes of a particular decision must be scrutinized in determining which safeguards should be provided, we shall briefly discuss three specific ‘due process' safeguards: (1) the location of the hearing, (2) the right to counsel, (3) the burden of proof.’

5.  It appeared from the record that a Pasadena City ordinance prohibits female operators in ordinary massage parlors rendering that service to males.

6.  In Sunset Amusement Co. v. Board of Police Commissioners, supra, the court says at p. 80, of 7 Cal.3d, at p. 778 of 101 Cal.Rptr., at p. 850 of 496 P.2d: ‘But aside from the notice charged to petitioners by reason to the foregoing ordinances, it is an accepted rule of law (and one with which petitioners may be deemed familiar) that a business permit may be revoked by a municipality if the permittee either fails to comply with the conditions expressed in its permit or if there exist a compelling public necessity. justifying revocation, as where the conduct of that business constitutes a public nuisance. (Jones v. City of Los Angeles, 211 Cal. 304, 315, 295 P. 14; O'Hagen v. Board of Zoning Adjustment, supra, 19 Cal.App.3d 151, 158–159, 96 Cal.Rptr. 484.) As this court stated in Jones (211 Cal. at p. 316, 295 P. at p. 20), ‘once an undoubted menace to public health, safety, or morals is shown, the method of protection [available to a municipality] may be drastic. Private business may be wholly prohibited, where their danger is sufficiently great; and other businesses, no matter how well established and how great the resulting loss, may be excluded from certain districts where, by reason of the circumstances, their maintenance has become a public nuisance in those districts. In these cases, the public welfare demands even the destruction of existing property interests.’ (Italics added; accord O'Hagen v. Board of Zoning Adjustment, suprai.)'

ROTH, Presiding Justice.

BEACH, J., concurs.