Walker v. Physical Therapy Bd. of Cal.

225 Cal. Rptr. 3d 70, 16 Cal. App. 5th 1219
CourtCalifornia Court of Appeal, 5th District
DecidedOctober 16, 2017
DocketD071984
StatusPublished
Cited by4 cases

This text of 225 Cal. Rptr. 3d 70 (Walker v. Physical Therapy Bd. of Cal.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walker v. Physical Therapy Bd. of Cal., 225 Cal. Rptr. 3d 70, 16 Cal. App. 5th 1219 (Cal. Ct. App. 2017).

Opinion

O'ROURKE, J.

*1221Grace Lorraine Walker appeals from a judgment of the superior court denying *73her petition for a writ of administrative mandamus. The petition asked the court to set aside a decision of the Physical Therapy *1222Board of California (the "Board") that subjected Walker to discipline based on a misdemeanor hit-and-run conviction and the Board's finding she had used alcohol in a manner dangerous to herself or others. The superior court concluded the misdemeanor conviction was not an appropriate ground for discipline because it was not sufficiently related to Walker's fitness to practice physical therapy, but that discipline was appropriate pursuant to Business and Professions Code 1 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 2660 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.

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 *1223that 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.

*74At 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 *1224a 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, *75

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Cite This Page — Counsel Stack

Bluebook (online)
225 Cal. Rptr. 3d 70, 16 Cal. App. 5th 1219, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walker-v-physical-therapy-bd-of-cal-calctapp5d-2017.