Drucker v. State Bd. of Medical Examiners

• Decision Date: 07 August 1956
• Citation: 143 Cal.App.2d 702,300 P.2d 197
• Court: California Court of Appeals Court of Appeals
• Parties: Jacques DRUCKER, Petitioner and Respondent, v. The STATE BOARD OF MEDICAL EXAMINERS of the State of California, and Wilbur Bailey, M.D., Henry Gibbons III, M.D., Louis E. Jones, M.D., Clayton D. Mote, M.D., Frank W. Otto, M.D., William F. Quinn, M.D., Daniel W. Sooy, M.D., Justin J. Stein, Jr., M.D., Charles E. Von Geldern, M.D., Joe Zeiler, M.D., as Members of the State Board of Medical Examiners of the State of California, Defendants and Appellants. Civ. 21488.

Page 197

300 P.2d 197

143 Cal.App.2d 702

Jacques DRUCKER, Petitioner and Respondent, v. The STATE BOARD OF MEDICAL EXAMINERS of the State of California, and Wilbur Bailey, M.D., Henry Gibbons III, M.D., Louis E. Jones, M.D., Clayton D. Mote, M.D., Frank W. Otto, M.D., William F. Quinn, M.D., Daniel W. Sooy, M.D., Justin J. Stein, Jr., M.D., Charles E. Von Geldern, M.D., Joe Zeiler, M.D., as Members of the State Board of Medical Examiners of the State of California, Defendants and Appellants.

Civ. 21488.

District Court of Appeal, Second District, Division 1, California.

Aug. 7, 1956.

As Modified on Denial of Rehearing Sept. 4, 1956.

Hearing Denied Oct. 4, 1956.

Edmund G. Brown, Atty. Gen., Dan Kaufmann, Deputy Atty. Gen., for appellants.

L. R. Martineau, Jr., Glenn B. Martineau Los Angeles, and Peart, Baraty & Hassard, San Francisco, Amici Curiae.

Richards, Watson, Smith & Van Petter, Los Angeles, Amici Curiae.

Elconin & Elconin, Los Angeles, for respondent.

FOURT, Justice.

The defendants have appealed from a judgment wherein the court issued a peremptory writ of mandate directing the Board of Medical Examiners to vacate and set aside its order of September 9, 1954, revoking respondent's license to practice as a dispensing optician, and ordering the Board to issue a dispensing optician's license to respondent (doing business as Southern California Optical Company), and to advise the court thirty days from the date of service of the writ that there was compliance.

The respondent holds a certificate from the Board of Medical Examiners (hereinafter referred to as the Board) as a registered dispensing optician. In October, 1953, an accusation was filed before the Board under the Administrative Procedure Act charging the respondent, doing business as Southern California Optical Company, with violation of section 2556 of the Business and Professions Code. ^*

The accusation was in four counts. Count 1 charged, in substance, that on October 18, 1952, the respondent did furnish the services of a physician, namely Dr. Maurice Sachnoff, to Harold LaMour, and on November 25, 1952, did employ and maintain Dr. Sachnoff on or near the premises which were used for optical dispensing, namely 2620 Saturn Avenue, in Huntington Park.

Count 2 charged that on March 28, 1952, respondent furnished the services of an optometrist, namely Dr. M. M. Krieger, to William P. Ingles, and further, did, about the same date, employ and maintain Dr. Krieger on or near the premises which were used for optical dispensing, namely 5319 South Hoover Street, Los Angeles.

Count 3 charged that on September 24, 1952, the respondent did furnish the services of a physician and surgeon, namely Dr. Nathaniel Berman, to Lorrean Hubbard, and further, did, about the same date, employ and maintain Dr. Berman on or near the premises which were used for optical dispensing, namely 5319 South Hoover Street, Los Angeles.

Count 4 charged that on September 24, 1952, the respondent did furnish the services of a physician and surgeon, namely Dr. Nathaniel Berman, to Hazelle D. Hotz, and did, about the same date, employ and maintain Dr. Berman on or near the premises which were used for optical dispensing, namely 5319 South Hoover Street, Los Angeles.

A hearing was held before a hearing officer of the Division of Administrative Procedure and the hearing officer rendered a proposed decision, the essence of which was that he found that the respondent had violated the provisions of section 2556 of the Business and Professions Code as charged, and recommended that respondent's license and certificate be revoked. The hearing officer's proposal was adopted by the Board on September 9, 1954.

On November 1, 1954, the respondent filed a petition for a writ of mandate in the Superior Court of Los Angeles county. An answer was filed by the Board denying generally respondent's allegations. The judge of the superior court granted the writ of mandate, ordering, as heretofore set forth, among other things, that the Board set aside its order of revocation.

Under Chapter 5, Part 1 of Division 3 of Title 2, § 11523, Government Code, it has been held that in a mandamus proceeding, where an administrative agency exercises statewide jurisdiction, the superior court, in reviewing the agency's actions in revoking licenses, must exercise an independent judgment of the facts in addition to reviewing questions of law. Dare v. Board of Medical Examiners, 21 Cal.2d 790, 136 P.2d 304; Sipper v. Urban, 22 Cal.2d 138, 137 P.2d 425; Hohreiter v. Garrison, 81 Cal.App.2d 384, 184 P.2d 323.

The issue on this appeal is whether the court, after its independent review of the facts, was justified in determining that the evidence was insufficient to support the finding of the Board that the respondent herein employed, furnished or maintained an optometrist or physician and surgeon, in violation of the provisions of section 2556 of the Business and Professions Code.

Harold F. LaMour testified that he was an investigator for the Board and that he went to the premises at 2620 Saturn Avenue, Huntington Park, which were the premises occupied by the Southern California Optical Company, owned by the respondent. The witness stated that he entered the place about 10:30 o'clock a. m., and talked to a woman dressed in white, telling her that he needed glasses. The lady advised him that the doctor would not be in until noontime, and he informed her that he was in a hurry, to which she replied that she might be able to get the doctor there sooner. The witness then told the lady that noontime would be satisfactory, and she gave him a card of the Southern California Optical Company with its four addresses printed thereon. He inquired as to whether the doctor would be at the address of the company and was informed that he would be next door. The witness came back about 1:00 o'clock p. m., and was told by the woman to go next door, where, upon the window, was the name Maurice Sachnoff. Dr. Sachnoff spoke to the witness and took him down a hallway to another room, and there examined his eyes. The doctor wrote out a prescription and told him to take it next door. He was told by the doctor that the charge would be $5, and thereupon paid the doctor and obtained a receipt therefor. There was no receptionist at the doctor's office. The witness returned to the premises at 2620, with the prescription, and made arrangements to return for the glasses. Upon his later return, a pair of glasses were produced, which were adjusted to his ears and eyes. The witness asked for a copy of the prescription and during the conversation Dr. Sachnoff appeared and signed the copy of the prescription. The witness paid $22.77 for the glasses.

There was testimony that the premises at 2620 Saturn were leased to Southern California Optical Company some time in the middle of 1951. The premises at 2622 were leased to Western States Optical Company on or about January 21, 1952. Both of these names were fictitious business names of respondent. Respondent requested electrical services for the premises at 2622 and was billed and paid for the same. The records of the city of Huntington Park Apartment Buildings showed that respondent applied for a certificate of occupancy for the premises at 2622, and in accordance with the procedure of the city, the occupancy permit was forwarded to the License Tax Department of the city clerk's office, and in the course of the procedure, respondent told the city clerk, in substance, that a doctor would occupy the premises. The respondent admitted leasing the adjoining store and stated that in the first instance he desired the premises for manufacturing purposes in connection with his dispensing business. He further stated that the premises were not leased to Dr. Sachnoff until September 1, 1952, and that prior to that date, he had attempted to rent it to a general practitioner.

William P. Ingles testified that he was a state inspector for the Department of Professional and Vocational Standards Bureau of Furniture and Bedding Inspection, and that he visited the offices of Southern California Optical Company at 5319 South Hoover Street. He stated that he first called the optical company about getting some glasses and was told, in substance, that he should have a prescription, and further that they could arrange to have an examination made and then could fill the prescription and sell him glasses. He stated that he was told that that could be done right there. He further stated that he inquired as to the cost and was told that the examination fee would be $5 for a doctor who would be supplied by the company. He thereupon made an appointment for the following afternoon. He further testified that he entered at about 2:00 o'clock p. m., March 28, 1952, and stated that his name was Ingles. He was told that Dr. Krieger was not in as yet, but was expected at any moment. Later he was informed that the doctor was available and was shown the stairway to the doctor's office. In the upstairs portion of the building he saw a glass door with the name of Dr. Gottschalk, M. D. on it, and entered the room and there found Dr. Krieger who gave him an eye examination. On completion of the examination the doctor gave the witness a prescription for glasses. Ingles paid the doctor $5. On the next day Ingles called Southern California Optical Company and inquired about getting glasses and told them he had had no examination. A male voice answered the telephone and indicated that they would take care of that for him through a Dr. Schwartz of Beverly Hills, who would charge him $5.

Dr. Krieger testified that he never maintained an office at 5317 1/2 South Hoover Street, the address of the upstairs portion of the building; that he was employed full-time as an optometrist at 842 South Broadway and was so employed on the date in question. He stated that he went to the address of 5317 1/2 South Hoover Street to do eye examinations...