California Administrative Law: Nurse with one DUI -- Court Overturns License Revocation by California Board of Registered Nursing

A California registered nurse (R.N.) was recently convicted of alcohol-related reckless driving after being charged with driving under the influence of alcohol (DUI). The conviction was a first-time offense, and there was no evidence of alcohol abuse or dependence.

Nevertheless, the Board of Registered Nursing demanded that the nurse submit to a psychological evaluation, physical evaluation, random urine tests, and substance abuse rehabilitation. Since there was no evidence of any alcohol problem, we–as administrative law attorneys–believed that the conditions demanded by the Board were unreasonable.  

In California administrative law, a criminal conviction is not grounds for discipline unless it is substantially related to the qualifications, functions, and duties of the profession.  See Business and Professions Code section 490 (b).

We went to an administrative hearing before a California administrative law judge (ALJ) with the Office of Administrative Hearings and argued that the conviction was not “substantially related.”  The ALJ agreed and dismissed two counts of the Accusation (Business and Professions Code sections 490 (a) and 2761 (f)), however, the ALJ imposed probation (without alcohol/substance abuse terms) based on a Nursing Practice Act statute which defines unprofessional conduct to include the dangerous use of alcohol or the conviction of a crime involving consumption of alcohol (Business and Professions Code sections 2762 (b) and (c)). 

We believe this was an error because Business and Professions Code section 490 (b) limits agency disciplinary statutes by imposing the “substantial relationship” limitation (so does the Constitution).

We appealed the California administrative law case to the San Francisco Superior Court by writ of administrative mandate (mandamus).  We also sought attorney's fees from the Board of Registered Nursing under the Carpenter-Katz Small Business Equal Access to Justice Act of 1981 (Code Civ. Proc. § 1028.5), which provides for the award of attorney’s fees and expenses up to $7,500 to a prevailing licensee if “the action of the agency was undertaken without substantial justification . . . .”  Code Civ. Proc. § 1028.5 (a).

The San Francisco Superior Court agreed with our interpretation of Section 490 (b).  The Court also decided that the Board's decision violated the nurse’s right to due process and equal protection because a Medical Board disciplinary statute defines unprofessional conduct to require more than one alcohol-related misdemeanor conviction.  The Court ordered the Board of Registered Nursing to set aside its decision and to pay attorney's fees to the nurse in the amount of $7,500.

The Board of Registered Nursing has complied with the Court's decision, and it declined its right to appeal the decision. The Board also removed reference to the accusation from it website, which publishes pending disciplinary actions.

If you seek expertise in California administrative law, the San Francisco attorneys at Slote & Links defend licensed professionals and businesses before California administrative agencies. For information on California administrative law, visit www.slotelaw.com.