Our client is a California OT, who was convicted of driving under the influence of alcohol (DUI) for the second time. The DUI was not work related and a psychologist determined that our client does not have an alcohol problem.
|“We filed suit against CBOT within 8 days.”|
The California Board of Occupational Therapy (CBOT) filed an Accusation alleging unprofessional conduct (Bus. & Prof. Code, §§ 2570.28 and 2570.29) and violation of ethical standards of the profession (16 CCR § 4170).
In order to settle the case, our client offered to accept CBOT’s standard terms of probation for three years, but CBOT demanded that our client attend regular chemical dependency support groups and submit to drug testing, which we estimated would cost $8,000 in the first year. We rejected this settlement offer because our client is not an alcoholic.
The case proceeded to hearing before an administrative law judge (ALJ). We presented evidence that our client is a good Occupational Therapist and that the DUI was an isolated incident. The Deputy Attorney General representing CBOT requested the outright revocation of our client’s license and that our client be ordered to pay approximately $9,000 for the cost of prosecution. We asked the ALJ to either impose no disciplinary action or a Public Reproval (public reprimand) and to deny CBOT the cost of prosecution.
The ALJ ruled that our client’s DUI conviction, as a second offense, was cause for discipline as unprofessional conduct, but he dismissed the allegation that our client violated ethical standards in the practice of Occupational Therapy. Instead of revoking our client's license or ordering probation, the ALJ decided that the appropriate level of discipline is a Public Reproval. He also denied CBOT's request for prosecution costs.
The Board of Occupational Therapy rejected the ALJ’s Proposed Decision (see Topic: Non-Adoption of Proposed Decision) and ordered the hearing transcript so it could consider the case and make its own decision. CBOT issued a new decision, which ordered our client to be on probation for one year without drug testing. This had been a long battle, and our client accepted the Board’s decision.
The requirement that employment be approved is a standard condition of probation, and approval is routinely granted. To our surprise and disappointment, CBOT refused to approve our client’s employment and ordered the cessation of practice within 10 days.
We filed suit against CBOT within 8 days. Our lawsuit was an appeal of the administrative action by Petition for Writ of Mandate, which is also known as a Petition for Writ of Administrative Mandamus. CBOT offered to settle the case by approving our client’s employment in exchange for our client's agreement to submit to drug testing for six months. Our client agreed, and we entered into a settlement agreement for dismissal of the lawsuit. Our client successfully completed one year of probation and has a clear license.
CLICK HERE FOR A CONSULTATION