Lorenz v. Board of Medical Examiners

TRAYNOR, J.

On October 3,1952, judgment of conviction was entered on petitioner’s plea of guilty to a violation of section 61, subdivision (a), of the Alcoholic Beverage Control Act¹ (now Bus. & Prof. Code, § 25658). On April 9, 1953, a special investigator for the Board of Medical Examiners filed with the board an accusation against petitioner (Gov. Code, § 11503) charging that his conviction was for an offense involving moral turpitude and that he was therefore guilty of unprofessional conduct under sections 2361² and 2383³ of the Business and Professions Code. It was also alleged that on or about March 13, 1947, petitioner’s license had been revoked for conviction of a crime involving moral turpitude, but that the revocation was suspended and petitioner placed on probation for five years.

A hearing was held before a hearing officer on February 23, 1954. He found that discipline had been previously imposed as alleged, that the conviction in question was for giving a drink of an alcoholic beverage to a 17-year-old boy, but that the crime did not involve moral turpitude. He recommended that the accusation be dismissed. The Board of Medical Examiners, however, decided that petitioner had been convicted of a crime involving moral turpitude and revoked his license to practice medicine and surgery in California.

Petitioner filed a petition for a writ of mandate in the superior court to review the order of the board (Code Civ. Proc., § 1094.5) and a trial was had on the record before the board. The court found that “. . . said conviction was of a crime involving moral turpitude in that it arose from the furnishing of intoxicating liquor by the petitioner on or about August 17, 1952 at the Travelodge Motel in Brawley, California, to a minor . . . without just cause or explanation, and that at said time and place and in connection with the furnishing of said intoxicating liquor the petitioner did engage in immoral acts with the said minor” and entered its order discharging the alternative writ. Petitioner appeals.

Under the plain language of section 2383 it is the conviction alone of an offense involving moral turpitude that empowers the board to suspend or cancel a license. Since the record of conviction is conclusive evidence of the unprofessional conduct, the circumstances in which the crime was in fact committed cannot be considered. Moral turpitude must be inherent in the crime itself to warrant cancellation or suspension of a license because of the conviction. (In re Hallinan, 43 Cal.2d 243, 248-249 [272 P.2d 768].) Moral turpitude is not inherent in the crime itself unless a convietion in every case would evidence bad moral character. {Ibid.) Only if the minimum elements for a conviction necessarily involve moral turpitude and a conviction cannot be had without proof of facts showing moral turpitude, can the conviction be held to be of an offense involving moral turpitude. {Ibid.)

We have concluded that the offense of giving an alcoholic beverage to a person under the age of 21 years does not in every case evidence a bad moral character and that moral turpitude is therefore not inherent in the crime itself. Conviction alone, therefore, of such an offense does not warrant the suspension or cancellation of a license under section 2383. Brainard v. State Board of Medical Examiners, 68 Cal.App.2d 591 [157 P.2d 7], permitting inquiry into collateral acts to determine whether a conviction was for an offense involving moral turpitude is inconsistent with our opinion herein and is disapproved.

If other acts committed at the same time as the offense for which a licensee is convicted constitute unprofessional conduct (Bus. & Prof. Code, § 2377 et seq.) the licensee may be disciplined for those acts. He must, however, be charged with such acts. (In re Hess, 45 Cal.2d 171 [288 P.2d 5].) In the present case petitioner was neither charged nor convicted of anything but a violation of section 61(a) of the Alcoholic Beverage Control Act.

An offense that does not necessarily involve moral turpitude may be committed by an act involving moral turpitude, e. g. section 145, subdivision (b), of the Internal Revenue Code may be violated by intentional fraud (see In re Hallinan, supra, 43 Cal.2d 243, 253); section 61, subdivision (a), of the Alcoholic Beverage Control Act may be violated by adulterating a nonalcoholic drink with alcohol and inducing a minor to take it in the belief that it is nonalcoholic. In such cases a licensee cannot be disciplined under a procedure that makes the record of conviction conclusive evidence of unprofessional conduct, but must be charged with the fraudulent or immoral act and given a hearing on that charge. Petitioner was not charged with such an act and there is nothing in the record to indicate any deception or other immoral act in the giving of the alcoholic beverage.

If further proceedings are to be had against petitioner for unprofessional conduct in connection with his violation of the Alcoholic Beverage Control Act they must be initiated by those charged with that responsibility. (Cf. In re Halliman, supra, 43 Cal.2d 243, 253-254.)

The judgment is reversed with instructions to the trial court to grant a peremptory writ of mandate directing the board to set aside its order of revocation.

Gibson, C. J., Carter, J., Schauer, J., Spence, J., and McComb, J., concurred.

1 Every person who sells, furnishes, gives or causes to be sold, furnished, or given away, any alcoholic beverage to any person under the age of 21 years is guilty of a misdemeanor.”

2 ‘'The hoard shall take action against any holder of a certificate, who is guilty of unprofessional conduct. ...” Business and Professions Code, § 2377 et seq., specify those acts which constitute unprofessional conduct.

3 ”The conviction of a felony, or of any offense involving moral turpitude, constitutes unprofessional conduct within the meaning of this chapter. The record of the conviction is conclusive evidence of such unprofessional conduct.”