Judge James C. Chalfant, Case Number: 22PSCP00049, Date: 2023-06-29 Tentative Ruling

Valerie Darlene Romero v. The Board of Vocational Nursing and Psychiatric Technicians, 22PSCP00049

Tentative decision on petition for writ of mandate: denied

Petitioner Valerie Darlene Romero (“Romero”) seeks a writ of mandate overturning the decision by Respondent Board of Vocational Nursing and Psychiatric Technicians (“Board”) to revoke her vocational nurse license.

The court has read and considered the moving papers and opposition (no reply was filed), and renders the following tentative decision.

Petitioner Romero filed the Petition on January 31, 2022, seeking a stay of the impending revocation of her provisional license. The Petition alleges in pertinent as follows.

The Board issued Romero a vocational nurse license on March 27, 2002. On April 5, 2005, the Board and Romero entered a stipulated settlement and disciplinary order. The matters thereafter were expunged and dismissed.

On April 20, 2021, the Board filed an accusation (the “Accusation”) against Romero. During the evidentiary hearing, Romero pled for the Board to treat the crimes at issue as a consequence of the fact that she was a victim of a violent assault and battery on July 25, 2018. That attack left her with documented post-traumatic medical and psychiatric conditions that precipitated major clinical depression, which in turn required extensive medical and psychiatric treatment.

The crimes at issue also occurred within a 2.5-year period. During that time, Romero was admitted to the Los Angeles Centers for Alcohol and Drug Abuse (“LACADA”) as part of a rehabilitation program. She completed the rehabilitation program on September 15, 2021, and has been sober to date.

Despite these facts, the Board issued a decision that revoked her license. Romero does not deny the decision’s findings about her criminal convictions. However, aside from ignoring her pleas for clemency, the decision references her expunged criminal history. The consideration of such facts and testimony presents undue bias. A mitigated disciplinary action, short of revocation, will allow Romero to continue to serve her patients.

On April 27, 2022, Department R (Hon. Thomas C. Falls) reassigned the case to Department 1 (Hon. David J. Cowan). On May 13, 2022, Department 1 reassigned the case to this court.

CCP section 1094.5 is the administrative mandamus provision which structures the procedure for judicial review of adjudicatory decisions rendered by administrative agencies. Topanga Ass’n for a Scenic Community v. County of Los Angeles, (“Topanga”) (1974) 11 Cal.3d 506, 514 15.

CCP section 1094.5 does not in its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (“Fukuda”) (1999) 20 Cal.4th 805, 811. In cases reviewing decisions which affect a vested, fundamental right the trial court exercises independent judgment on the evidence. Bixby v. Pierno, (“Bixby”) (1971) 4 Cal.3d 130, 143; see CCP §1094.5(c). An administrative decision imposing discipline on a professional licensee is decided under the independent judgment standard. Griffiths v. Superior Court, (2002) 96 Cal.App.4th 757, 767.

Under the independent judgment test, “the trial court not only examines the administrative record for errors of law but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” Bixby, supra, 4 Cal.3d at 143. The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners, (2003) 107 Cal.App.4th 860, 868. In short, the court substitutes its judgment for the agency’s regarding the basic facts of what happened, when, why, and the credibility of witnesses. Guymon v. Board of Accountancy, (1976) 55 Cal.App.3d 1010, 1013 16.

“In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” Fukuda, supra, 20 Cal.4th at 817. Unless it can be demonstrated by petitioner that the agency’s actions are not grounded upon any reasonable basis in law or any substantial basis in fact, the courts should not interfere with the agency’s discretion or substitute their wisdom for that of the agency. Bixby, supra, 4 Cal.3d 130, 150 51; Bank of America v. State Water Resources Control Board, (1974) 42 Cal.App.3d 198, 208.

The agency’s decision must be based on a preponderance of the evidence presented at the hearing. Board of Medical Quality Assurance v. Superior Court, (1977) 73 Cal.App.3d 860, 862. The hearing officer is only required to issue findings that give enough explanation so that parties may determine whether, and upon what basis, to review the decision. Topanga, supra, 11 Cal.3d 506, 514 15. Implicit in CCP section 1094.5 is a requirement that the agency set forth findings to bridge the analytic gap between the raw evidence and ultimate decision or order. Id. at 115.

An agency is presumed to have regularly performed its official duties (Evid. Code §664), and the petitioner therefore has the burden of proof. Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal.App.2d 129, 137. “[T]he burden of proof falls upon the party attacking the administrative decision to demonstrate wherein the proceedings were unfair, in excess of jurisdiction or showed prejudicial abuse of discretion. Afford v. Pierno, (1972) 27 Cal.App.3d 682, 691.

The Board may suspend or revoke a license when it finds that the licensee has been convicted of a crime substantially related to the qualifications, functions, or duties of a licensed vocational nurse. Bus. & Prof. Code §490(a).

The Board may suspend or revoke a license for unprofessional conduct, which includes but is not limited to (1) incompetence or gross negligence in carrying out usual nursing functions and (6) failure to report the commission of any act prohibited by this section. Bus. & Prof. Code §2878(a).

The Board may also suspend or revoke a license for a conviction of a crime substantially related to the qualifications, functions, and duties of a licensed vocational nurse, in which event the record of the conviction shall be conclusive evidence of the conviction. Bus. & Prof. Code §2878(f).

The Board may also suspend or revoke a license for the commission of any act involving dishonesty, when that action is related to the duties and functions of the licensee. Bus. & Prof. Code §2878(j).

The Board shall keep a record of all its proceedings, including a register of all applicants for licenses under this chapter and the action of the board upon each application. Bus. & Prof. Code §2852.

Protection of the public is the highest priority for the Board when it exercises licensing, regulatory, and disciplinary functions. AR 169.

A crime is substantially related to the qualifications, functions, or duties of a licensed vocational nurse if to a substantial degree it evidences present or potential unfitness of a licensed vocational nurse to perform the functions authorized by the license in a manner consistent with the public health, safety, or welfare. 16 California Code of Regulations (“CCR”) §2521(a).

The relevant criteria for rehabilitation when a licensee did not complete probation without a violation include the nature and severity of the acts, offenses, or crimes under consideration; the time passed since the acts or offenses occurred, the actual or potential harm to the public or any patient, any overall criminal actions by any court or agency, compliance with court-ordered criminal probation, overall disciplinary record, any prior warnings on record or prior remediation, the number and variety of current violations, cooperation with the Board and other law enforcement or regulatory agencies, mitigation evidence, and rehabilitation evidence. under 16 CCR §2522(b). AR 172.

License revocation is the maximum discipline for unprofessional conduct, incompetence or gross negligence, non-drug-related convictions substantially related to functions of the license, any act of dishonesty, confinement or committal for addiction, disciplinary action by another agency or licensing board, and failure to report child, elder, or dependent adult abuse. AR 191-96. The minimum discipline is a stayed revocation with two years of probation. AR 191-96.

On June 2, 2004, the Board filed an accusation against Romero alleging (1) illegal possession of a controlled substance, (2) falsified hospital records, and (3) dishonest acts. AR 90-92. The accusation alleged that on November 2, 2002, while a vocational nurse at Broadway Nursing Center in San Gabriel, Romero withdrew a Schedule II controlled substance, Demerol, for a patient. AR 90. She documented that she signed the drug out but failed to document its administration or wastage. AR 90-91. During a traffic stop on February 10, 2003, police found a syringe needle with the Demerol in Romero’s car. AR 91.

On November 15, 2004, Romero and the Board stipulated to a stayed revocation of her license with three years of probation. AR 80, 84. The stipulation was accepted by the Board and the probation became effective May 6, 2005. AR 77. The probation expired on May 4, 2008. AR 76.

A Glendora Police Department report shows that on September 22, 2016 at 7:21 p.m., Romero stole 13 items of clothing and seven beauty products from a Walmart store. AR 94, 96-97. She stole the clothes first, put them in her van, then re-entered the store and stashed the beauty products in her purse. AR 96, 98. Romero said that she did not plan to steal when she entered the store and that the customer with her did not know that Romero had stolen anything. AR 97-98.

On February 16, 2017, Romero pleaded nolo contendere to one count of misdemeanor petty theft under Penal Code sections 484(a) and 490.2. AR 100. The court found Romero guilty, suspended imposition of sentence, placed Romero on three years’ summary probation, and ordered her to serve two days in jail with two days’ credit for time served. AR 100. The court also ordered her to pay $150 in restitution and $151 in fines and assessments, complete ten days of community service, and stay away from the Walmart from which she stole. AR 101.

On November 30, 2018, the El Monte Police Department responded to a burglary call at the home of Elvira Quinteros (“Quinteros”). AR 106. Quinteros explained that she had left her house and returned half an hour later to find that someone stole her car and her spare key. AR 106. The police identified Quinteros’ daughter, Romero, as a person of interest. AR 106. The women had an argument over child custody that led Romero to threaten to blow up Quinteros and the house. AR 106.

On March 28, 2019, an arrest warrant was issued for Romero on charges of burglary under Penal Code section 459 and vehicle theft under Penal Code section 10851(a). AR 109. Romero was arrested and appeared in court a few days later. AR 109-10. On June 27, 2019, Romero pled nolo contendere to felony burglary. AR 114. The court suspended sentence and placed Romero on three years of formal probation, conditioned on 172 days in county jail for which she had credit for time served and payment of restitution and fines. AR 114-15.

On August 13, 2019, a Los Angeles County Sheriff’s Department deputy was on patrol in San Dimas when he noticed a car driving 25 miles per hour in a 40 mile per hour zone. AR 129, 132. The deputy sheriff ran the license plate and learned that the vehicle had been reported stolen. AR 132. He conducted a felony traffic stop and discovered Romero driving the car with a passenger. AR 132.

The passenger, Matthew Da Silva, said that Romero had just picked him up and told him that she bought the car from a friend who rents a room from her. AR 132. Romero told the deputy sheriff that she was on probation for burglary. AR 132. She said that “Junior,” who used to live in her house, gave her the vehicle a few days earlier in exchange for rent money. AR 132. Junior had given Romero two keys but did not have title for the car. AR 132.

The deputy sheriff examined the two keys given to Romero by Junior. AR 133. Only the key that was shaved down on both sides could start the ignition, and neither key could open the car doors. AR 133.

On August 15, 2019, Romero was charged with one misdemeanor count of driving or taking a vehicle without the owner’s consent under Vehicle Code section 10851(a). AR 144. On

October 30, 2019, she pled nolo contendere to the charge. AR 147. The court denied probation and sentenced Romero to 157 days in jail with the same credit for time served. AR 147.

On March 4, 2020, El Monte Police Department officers responded to a complaint from Quinteros that Romero was bipolar and acting out. AR 158. When the officers arrived, Quinteros told them that Romero was agitated and refused to go to the hospital for a scheduled mental health evaluation. AR 158.

Quinteros also disclosed that she had an active restraining order against Romero. AR 158. The officers confirmed that the order required Romero to remain 100 yards away from Quinteros and not contact her. AR 158. Quinteros said that Romero did not have permission to be at her house. AR 158. Romero had come to the house two days earlier after release from a drug rehabilitation facility. AR 158. Quinteros told Romero that she could not stay at her home because of the restraining order but Romero did not listen. AR 158.

The officer then talked to Romero, who alleged that Quinteros allowed her to stay there. AR 158. Romero then became agitated and began to yell at Quinteros and threaten to assault her. AR 158. The officer handcuffed and detained Romero. AR 158. Through this interaction, the officer determined that Romero was delusional and a danger to others. AR 158. He transported Romero to a facility for psychological evaluation under Welfare and Institutions Code section 5150 (“section 5150”). AR 158.

On March 12, 2020, after the section 5150 evaluation, officers arrested Romero for violating the restraining order. AR 159. She stated that she was aware of the restraining order and that “words were exchanged” with her mother on March 4. AR 159. She asserted that she had a doctor’s note that allowed her to stay at Quinteros’s house. AR 159. Romero also said she was not in the right state of mind and was taking medication for bipolar disorder and anxiety. AR 159.

On March 16, 2020, a misdemeanor charge was filed against Romero for violating a domestic relations court order under Penal Code section 273.6(a). AR 161. That day, she pled nolo contendere to the charge. AR 164. The court denied probation and sentenced Romero to nine days in jail with credit for time served. AR 165.

On October 30, 2019, Romero appeared in court on a probation violation and admitted that she failed to comply with the terms and conditions of her burglary probation. AR 119. On November 8, 2019, the court conditionally released her to a representative of the Prototypes program for residential treatment for at least six months. AR 120.

On December 20, 2019, the court considered a report from Prototypes that Romero had violated the women’s reentry program’s terms and conditions. AR 120-21. The court discharged Romero from Prototypes and ordered Romero to report to the Alcoholism Center for Women. AR 121.

On March 13, 2020, the court was informed that Romero had been arrested for driving or taking a vehicle without consent and revoked her probation. AR 121-22. Between May 25 and July 28, 2020, Romero completed 43 days of residential treatment at LACADA. AR 198. The discharge report noted that her drug of choice was opiates and methamphetamine. AR 198. Her triggers are Quinteros and not being in a stable environment. AR 198.

On July 28, 2020, the court approved Romero’s transition to LACADA’s intensive outpatient treatment. AR 125. On July 31, 2020, Romero entered the LACADA outpatient program. AR 202.

On September 14, 2020, the court revoked and reinstated Romero’s probation, adding an additional 120-day jail sentence with credit for time served. AR 125.

In a letter dated October 12, 2020, LACADA reported that she was compliant with all program policies. AR 202. On February 2, 2021, Romero completed the outpatient program. AR 204.

Romero began another LACADA program on March 15, 2021. AR 208. In a letter dated September 2, 2021, LACADA reported that she tested positive for amphetamines on April 20, 2021. AR 208. On September 15, 2021, LACADA reported that Romero completed the program. AR 209.

On April 20, 2021, the Board’s Executive Officer (“Complainant”) filed the Accusation. AR 258, 263. The four causes of action were based on Romero’s criminal convictions (1) in March 2020 for violating a domestic relations court order, (2) in October 2019 for driving or taking a vehicle without the owner’s consent, (3) in June 2019 for burglary, and (4) in February 2017 for petty theft. AR 260-62. A fifth cause for discipline alleged that the acts for which Romero was convicted involved dishonesty. AR 262. The Accusation relied on Romero’s disciplinary history of a three-year probation in 2005. AR 263. The Complainant sought revocation or suspension of Romero’s license. AR 263.

An administrative law judge (“ALJ”) heard the Accusation on November 15, 2021. AR 241. The Complainant introduced Romero’s license certification and the 2005 stipulated probation as evidence. AR 277-78.

Luis Pages (“Pages”) has been a health care facilities administrator since 1996. AR 289. Beginning in 2003, Romero worked for about four years in a 98-bed hospital in San Gabriel managed by Pages. AR 289, 292-93. During that time, she caused no issues, followed all of her duties, and was promoted to a supervisor. AR 290. Romero and Pages remained in contact for professional purposes over the next 15 years. AR 290.

Pages knows the criminal history of all his employees because the Department of Justice must fingerprint and vet all nursing personnel. AR 293. None of his current 110 employees has four criminal convictions. AR 293-94. If he saw an applicant with convictions for the offenses at issue in this action, he would consider that an argument against hiring the person. AR 293-94. He would still want to talk to the applicant about the convictions. AR 293-94.

Ketan Patel (“Patel”) is the owner of Purview Hospice. AR 300. He met Romero in January 2021 through a friend when he was looking for help. AR 301. She currently calls patients to check on customer service. AR 301.

Patel considers Romero hard-working, reliable, and punctual. AR 301. He receives good feedback about her from his patients. AR 301.

Romero told Patel that she had four convictions from 2017 to 2020. AR 301. He does not know the extent and seriousness of the convictions. AR 304. Patel focused on her current personality and did not ask much about her history. AR 304.

Roselle Clark (“Clark”) was Romero’s supervisor at Alderwood Skilled Nursing Home for a year and a half beginning in 2006. AR 306, 308. Clark then worked with Romero at Supreme Hospice and Arcadia Hospice from 2013 to 2015. AR 308. In her experience, Romero is an excellent nurse who was knowledgeable about patient care. AR 308. The patients she worked with usually liked her. AR 317.

Clark did not know that the Board disciplined Romero in 2005. AR 309. Romero told Clark that she had criminal convictions between 2017 and 2020. AR 309-310. Clark did not ask much about them. AR 310. Romero just shared that one arrest occurred while crossing the border of Canada with a friend, another involved her mother’s car, and another involved her neighbors. AR 310. Clark never got into the extent and circumstances of Romero’s convictions. AR 314. She does not have a complete picture of Romero’s criminal background, mostly because she does not want to know much about anyone else’s troubles. AR 315.

Romero told Clark that Romero’s husband had cheated on her, and that triggered a chain of events. AR 311. Clark told Romero that it sounded like the cheating affected Romero’s life and her current situation. AR 311.

At Romero’s worst points in her professional career, she did not care about her work. AR 316. She would laugh as if nothing was serious. AR 314. If Clark gave her a task, she would have her own agenda. AR 316. Romero directly disregarded Clark’s directions only once. AR 317.

Romero is the youngest of Quinteros’ three children. AR 319. She is a good worker as a nurse and worked hard for an education, but her problem is with the drugs, which is why Romero took her (Quinteros’) car. AR 320. Quinteros thinks it started in 2008 when Romero started having problems with her husband. AR 326. Quinteros was not familiar with the fact that Romero had prior Board discipline in 2005. AR 326.

Quinteros pressed charges when Romero stole her car in 2018. AR 320. She did not consider that person to be her daughter because the heavy drug usage made Romero do that. AR 321.

In March 2020, Romero came to Quinteros’s house even though she knew Quinteros had a restraining order that prohibited that. AR 321. Romero was on heavy drugs that day. AR 321. Quinteros did not call the police, Romero did. AR 321. The police then took Romero to a clinic in West Agoura. AR 321-22.

Romero never told Quinteros about her arrest for shoplifting in 2018. AR 322. She told Quinteros that she was arrested for driving a stolen car and that she has spent time in jail. AR 322. Romero told her something about being on probation for diverting drugs from her work facility. AR 326. Quinteros did not know Romero was pulled over in a vehicle with those drugs and syringes. AR 326.

Romero first abused drugs when she was 14 years old and continued on and off until she was 17-19 years old. AR 342-43.

Romero and her husband began dating at age 16. AR 340. They got married after she became pregnant at age 23. AR 340. Her pregnancy led her to stop using drugs for a period. AR 343. She started using drugs again in 2008. AR 343.

Romero was the responsible parent in the household and purchased their house. AR 341. She only learned about her husband’s drug addiction in 2005 or 2006. AR 341. She was helping him get clean and then in 2008 she started again on her addiction and the relationship started to fall apart. AR 341.

As for the 2004 Accusation, Romero was a new nurse with a lot of responsibilities. AR 337. A patient requested Demerol, a Schedule II narcotic, which the hospital kept under lock and key. AR 370. Romero retrieved the medication, but the patient then declined it. AR 370. Normal process is to document the incident and have a supervisor witness disposal of the drug, but Romero was a supervisor. AR 370. Instead of disposing of the Demerol, Romero accidentally put it in her pocket and left. AR 337, 370.

Romero asserted that she was driving with her ex-husband to visit her sister in Arizona that weekend. AR 337. Because of this, she did not return the Demerol to the hospital when she discovered she had it. AR 370. She just emptied her pockets into the glove compartment. AR 337. The police stopped her car on the way back home and found the Demerol. AR 337-38. One syringe was attached to the bottle, but she did not take any others. AR 372.

The Complainant’s counsel showed Romero documentation that the Demerol went missing on November 2, 2002 and the police found Romero with the Demerol in her car on February 10, 2003. AR 371. This meant that Romero did not go to Arizona the same weekend that she took the Demerol because three months had passed. AR 371. Romero testified that she forgot to take the narcotic back for three months. AR 372.

Romero finished her three-year stipulated probation from 2005. AR 339. She was unaware that she owed $116.23 upon its completion. AR 339. She must have paid it because she needed to do so or the Board would not have renewed her license. AR 340.

In 2008, Romero became addicted to drugs. AR 341, 343. Sometime after, her relationship with her husband began to fall apart. AR 341. In 2011 or 2012, Romero came home from the Philippines to discover that her husband had been having an affair. AR 341. She told him that he had to leave because she owned the house. AR 341-42.

During the separation, whenever the children were with her husband every other weekend, Romero would indulge in certain drugs. AR 343. She would sober up by the end of the weekend so that she could take the kids to school, fulfill her duties at work, and start her own business. AR 344.

Later, her husband asked to come back. AR 342. After a six-month break for them to find themselves, he returned to the house for a couple months only to cheat on her again. AR 342. In 2011, she filed for divorce. AR 342.

In 2015, her then boyfriend introduced her to methamphetamines. AR 344. She had experimented a little with it when she started abusing drugs at ages 14 to 16, but it now became a major problem. AR 344. From that point, her life spiraled. AR 344. She lost her children, her relationship with her parents soured, and she couldn’t prevent foreclosure of her house because she was not working at the time. AR 344-45.

Her relationship with Quinteros had always been rocky due to domestic abuse as a child. AR 345. When Quinteros found out about the methamphetamine abuse, she refused to talk to Romero. AR 345. Romero justified it by telling herself she deserved a “break” after accomplishing so much and being recognized for none of it. AR 345. She and Quinteros were not talking at all. AR 345.

As for the 2016 petty theft, she was renting rooms out of her residence. AR 346. While in treatment as Social Model Recovery, she went with one of her tenants to Wal-Mart. AR 346. The tenant started shoplifting without Romero’s knowledge. AR 346. Romero then stole 20 items, about 13 of which were children’s clothing. AR 346. Romero herself was under the influence and unable to provide for her children. AR 346. She planned to give the clothing to her children and the seven beauty products to her daughter. AR 346-47.

When caught, she admitted to shoplifting and acknowledged it was illegal. AR 347. She also told the police about her addiction and her attempts to get help. AR 347. She pled guilty to petty theft. AR 347.

As for the 2018 burglary, Romero had inherited a 1950 pickup truck but learned that Quinteros had sold it to a cousin. AR 348. After some verbal confrontation, Romero visited Quinteros’s house to find that she had stepped out to take Romero’s kids for ice cream. AR 348. Romero, again under the influence, decided to take the Toyota in the garage without permission out of spite. AR 347-48. She intended to return it later, but she failed to do so as things got out of control. AR 348. Quinteros reported the case as stolen for insurance purposes, but Romero did not know that. AR 348. She was arrested when she next encountered police. AR 348.

As for taking a vehicle without consent in 2019, a man had a vehicle for sale but needed a place to stay. AR 352. Romero accepted the car as payment to rent out a room for him and his girlfriend. AR 352. The car turned out to be stolen. AR 352. At the time, Romero was unable to cognitively function and had made bad choices. AR 352. In hindsight, Romero should have been suspicious. AR 352. The key was shaved and without teeth, and she had to wiggle it to start the car. AR 352. The tenant did not provide insurance or registration. AR 353. She even knew the man was suspicious. AR 353. When the police revealed the vehicle was stolen, she was not surprised. AR 353.

Romero’s sentences for stealing her mother’s car and driving the tenant’s car without owner’s consent ran concurrently. AR 353.

As for the 2020 breach of a domestic relations court order, Romero was undergoing treatment at Alcoholism Center for Women. AR 354. She had a chance to transfer to Resolve Recovery’s program, and she received a week and a half in between without incarceration. AR 354. Romero discussed the issue with her parents and primary care physician. AR 354. The primary care physician wrote a doctor’s note that allowed her to stay with Quinteros temporarily while she found placement in rehabilitation. AR 355.

At some point, Quinteros and Romero were upset with each other and exchanged words. AR 355. Romero called the police with the hope that they could help her transfer to Resolve Recovery or another program. AR 355. Romero forgot about the court order, or at least thought the doctor’s note would override it. AR 355. The police considered it a violation of her probation and incarcerated her after release from the mental hospital. AR 355.

LACADA is a drug treatment facility with locations all throughout San Diego. AR 329. Romero was in one of them during her rehabilitation. AR 329.

On December 7, 2021, the ALJ issued a Proposed Decision that recommended revocation of Romero’s license. AR 241, 257.

In March 2020, Romero was convicted of a misdemeanor for violating a domestics relations court order. AR 242. After her release from a drug rehabilitation program, she went to Quinteros’s home despite the order and stayed for several days without permission while awaiting a mental health evaluation. AR 242. After Romero called the police, they placed a 5150 hold on her as a danger to herself and others. AR 242. They arrested her on March 12 after her release from the psychiatric facility. AR 242. Romero was sentenced to nine days in jail, approved for the Women’s Second Chance program, and ordered to undergo in-patient drug rehabilitation. AR 242.

In October 2019, Romero was convicted of misdemeanor driving or taking a vehicle without consent and sentenced to 157 days in jail. AR 243. An officer had seen Romero driving at a slow speed, ran the license plate, and discovered the car was stolen. AR 243. Romero told the officer someone gave her the car as payment for rent, but one of the two keys did not work and the other was shaven down to fit the ignition. AR 243.

In June 2019, Romero was convicted of felony burglary. AR 243. She had stolen Quinteros’s car from her unlocked home when Quinteros was out in retaliation for an argument about another vehicle Romero had inherited but Quinteros had sold. AR 243. Romero was sentenced to 172 days in jail plus probation for three years. AR 243.

In February 2017, Romero was convicted of misdemeanor petty theft after she shoplifted $131 in children’s clothes and beauty supplies from Wal-Mart. AR 244. She was sentenced to two days in jail, placed on probation for three years, and ordered to complete ten days of community service. AR 244.

Romero is a mother of three children and has struggled with drug abuse for most of her life. AR 244. She was drug-free from 2003 to 2008 but began using again after marital difficulties, separation, and divorce. AR 244. She shared custody of her children with her ex-husband, and she only used drugs when the children were with him and she was not working. AR 244. She entered a drug rehabilitation program called Prototypes in Pomona. AR 244. She was sober for a while but started using drugs again shortly after the program ended. AR 244.

In 2015, Romero’s use of methamphetamine increased. AR 245. She stopped working because she knew she could not care for patients while on drugs. AR 245. Her house was foreclosed upon. AR 245. Romero’s relationship with her mother deteriorated. AR 245. She was arrested for domestic violence, stealing Quinteros’s car, and violating a domestic violence restraining order. AR 245. Her life spiraled out of control. AR 245.

Between May 25 and July 28, 2020, Romero was enrolled in LACADA as part of a court-supervised rehabilitation program. AR 245. She received therapy and medication for bipolar disorder. AR 245. After LACADA, Romero entered Victoria’s Place and attended two group sessions, two individual counseling sessions, and an individual therapy session each week. AR 245. After an in-patient program, Romero began a LACADA outpatient program where she attended classes, received counseling, and was drug tested weekly. AR 245. Romero had one positive test for methamphetamines on April 20, 2021. AR 245.

On September 15, 2021, Romero completed the LACADA aftercare program. AR 245-46. The program director’s letter said that, despite the failed test, Romero had demonstrated her commitment to recovery. AR 246. Romero also holds certificates of completion for (1) a LACADA drug and alcohol education program dated February 2, 2021, (2) a LACADA Parenting Class dated February 2, 2021, and (3) a Recovery Support Services dated September 15, 2021. AR 246.

Romero presented character testimony from several people. AR 246. Quinteros provided credible testimony that Romero was always a goal-oriented hard worker. AR 246-247. Drugs made her combative and caused behavior issues. AR 247. Quinteros remembered a domestic violence incident, Romero’s theft of her car, and the violation of the restraining order. AR 247. She visited Romero in jail and followed her rehabilitation progress. AR 247. She believes that Romero is sincere in her efforts to rehabilitate herself and remain sober. AR 247. Quinteros has removed the restraining order as no longer necessary. AR 247.

Clark’s letter of support said Romero was smart, intuitive, and quick to learn any tasks presented to her. AR 247. She was a multitasker and a hard worker that can accomplish her goals when focused. AR 247. The hospice patients she cared for all provided positive feedback. AR 248. Despite challenges, Romero has rebounded with reliance and strength to press on to accomplish her goals and care for her children. AR 248.

At the hearing, Clark testified to the same conclusions but admitted that she did not know the specifics of Romero’s convictions. AR 248. Clerk knew about Romero’s general struggle with drugs. AR 248.

Pages’s letter and testimony assert that Romero demonstrated competency and commitment to her job duties when she worked for him. AR 248. She has never had licensure interrupted due to incompetence, negligence, or poor performance. AR 249. He asked the Board to consider Romero’s years of service to her patients and the profession as a whole. AR 249.

Patel’s letter and testimony assert that Romero is a dependable volunteer who never missed a schedule day. AR 249-50. She was cheerful, responsible, motivated, and interested in learning. AR 250.

In the 2004 stipulation, Romero admitted to (1) obtaining and possessing controlled substances, (2) making false, grossly incorrect, or inconsistent entries in hospital records, and (3) dishonest acts. AR 251. On November 2, 2002, Romero had checked out 50 mg of Demerol. AR 251. Although she documented on the patient Medication Administration Record that she gave it to the patient, she did not do so. AR 251-52. She did document that the narcotic was not injected, but the records did not show wastage or that anyone saw her destroy it. AR 252. Four months later, when the police pulled over a vehicle in which she was a passenger, the police discovered the Demerol bottle with a syringe inside the glove compartment. AR 252. Romero asserted that she had put it in her pocket and forgot to waste it before she left for vacation. AR 252. When she discovered it, she put it in the glove compartment and forgot. AR 252.

The Board’s highest priority is the protection of the public. AR 253. Under Bus. & Prof. Code sections 490 and 2878(f), it can suspend or revoke a vocational nurse’s license after a conviction for any crime substantially related to the qualifications, functions, and duties of a licensed vocational nurse. AR 253. Under 16 CCR section 2521, this includes whenever the crime demonstrates present or potential unfitness to perform the functions authorized by a vocational nurse’s license in a manner consistent with the public health, safety, or welfare. AR 253.

The ALJ found that the Accusation’s first four causes of action all provided cause to suspend or revoke Romero’s license for convictions substantially related to the qualifications, functions, and duties of a licensed vocational nurse. AR 253-54. The fifth cause also provided cause for disciplinary action based on acts of dishonesty. AR 254.

Romero had the burden of proof to show that she was sufficiently rehabilitated as to not adversely affect public health, safety, and welfare if allowed to keep her license. AR 254. Relevant criteria under 16 CCR section 2522 include the nature and severity of the acts, offenses, or crimes under consideration, the time passed since the acts or offenses occurred, the actual or potential harm to the public or any patient, any overall criminal actions by any court or agency, Romero’s compliance with court-ordered criminal probation, her overall disciplinary record, any prior warnings on record or prior remediation, the number and variety of current violations, Romero’s cooperation with the Board and other law enforcement or regulatory agencies, mitigation evidence, and rehabilitation evidence. AR 254.

Romero’s evidence of rehabilitation was not enough to avoid license revocation. AR 255. Romero has numerous recent convictions, and the underlying conflict demonstrated a potential for harm to patients and the public. AR 254-55. The convictions demonstrated dishonesty, erratic behavior and disregard for the law, usually when Romero was under the influence of drugs. AR 255. She relapsed from her drug rehabilitation as recently as April 2021. AR 255. Her disciplinary history also included a drug-related incident that led to probation. AR 255.

Romero’s rehabilitation efforts are recent, and they have followed years of drug abuse and multiple criminal convictions. AR 255. Some of the convictions involved dishonesty. AR 255. Honesty is an important quality because vocational nurses often provide care for vulnerable patients in their homes or other settings that put personal possessions at risk. AR 255. Her intense efforts at sobriety were admirable but are too recent to confirm it would last. AR 255.

Overall, Romero had not demonstrated a sustained period of sobriety and law-abiding behavior or sufficient sustained rehabilitation. AR 255. The potential danger to patients is too great to justify allowing Romero to keep her license. AR 255.

The Complainant requested $4,280 in prosecution costs from Romero. AR 256. The amount is reasonable, but Romero is struggling financially. AR 256. The ALJ proposed that Romero pay $2,500 of the costs if she succeeds in having her license reinstated in the future or receives another license from the Board. AR 256-57.

On January 4, 2022, the Board adopted the ALJ’s Proposed Decision, effective February 6, 2022. AR 240.

Petitioner Romero seeks to set aside the Board’s decision to revoke her vocational nursing license. She does not contest her various convictions, that they are substantially related to the qualifications, functions, and duties of a licensed vocational nurse, and that they are cause for discipline. Pet. Op. Br. at 4. Rather, she challenges the Board’s decision to revoke her license in light of her rehabilitation and the effect of events on her criminal intent.

Petitioner Romero fails to comply with these requirements. As the Board points out, Romero’s opening brief fails to cite any part of the administrative record. Opp. at 11. It also fails to set forth a complete set of facts concerning the issue of rehabilitation. These procedural failures are sufficient to deny the Petition. Romero’s pro per status does not affect this conclusion because she must ultimately be treated just as the court would treat a lawyer.

If, arguendo, the court is required to treat the merits, the Petition also fails.

Romero contests the admission of her 2005 stipulated discipline on the basis of bias in accordance with “California Evidence Rule 403”. She contends that she satisfied her probation, and it ultimately was expunged/dismissed by the Board with unrestricted reinstatement of her license. As a result, the admission of this stipulated discipline presented undue prejudice. Pet. Op. Br. at 4-5.

In November 2005, Romero stipulated to placement of her license on probation for illegal possession of Demerol, falsified hospital records, and dishonest acts. AR 90-92. During a traffic stop on February 10, 2003, police found a syringe needle with Demerol in Romero’s car. AR 91. Romero’s explanation for possessing the narcotic may or may not be believed, but the possession of a narcotic and falsification of hospital records is highly relevant to her admitted drug addiction and whether she can be trusted to be around patients as a licensed vocational nurse. The fact that she successfully completed the stipulated probation does not wipe her disciplinary history clean. Contrary to Romero’s belief, the 2005 discipline was not “expunged” or “dismissed”; the probation simply expired, and the discipline remained on her record. AR 76.

The Board correctly notes that Romero’s reference to “Rule 403” probably is to Rule 403 of the Federal Rules of Evidence, which is not authority for a California state board administrative hearing. The counterpart to Rule 403 is Evidence Code section 352, provides for the exclusion of evidence which is unduly prejudicial, confusing, or misleading. In a state administrative proceeding any relevant evidence shall be admitted if it is reliable. Govt. Code §11513(c). Consistent with Evidence Code section 352, “[t]he presiding officer has discretion to exclude evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time.” Govt. Code §11513(f).

At the administrative hearing, Romero never objected to the admission of the 2005 discipline evidence and in fact testified about it. AR 337, 338–39, 369–72. As a result, any objection was waived. Coalition for Student Action v. City of Fullerton, (1984) 153 Cal.App.3d 1194, 1197. Nor would such an objection have been valid. A licensee’s disciplinary history always is relevant to license discipline in the absence of a statutory limitations period barring such consideration. In this case, Romero’s disciplinary history was required to be admitted as one of the express factors the Board must consider in imposing discipline. AR 172 (“Overall disciplinary record”).

Romero argues that the Accusation’s causes 1-2 are based on crimes related to her marriage dissolution after a longstanding domestic violent and traumatic relationship and that causes 3-5 are based on crimes committed after she was a victim of a violent assault and battery on July 25, 2018. Since that violent attack, she suffered documented post-traumatic medical and psychiatric conditions that precipitated major depression requiring extensive medical and psychiatric treatment. Romero prays for clemency on the basis that the criminal activity was committed concurrently with her drug dependency and mental health instability.

She further argues that all her crimes were committed within a two to three-year period from February 2017 through July 2020, after which she was admitted to LACADA as part of a court-supervised rehabilitation program that was completed in September 2021.[2] Romero contends that she maintained her vocational license for 20 years without incurring any registered complaints and/or disciplinary action directly related to the performance of her duties.

Romero concludes that she successfully maintained substantial licensure for 20 years, worked for several healthcare service organizations as a licensed vocational nurse, and provided various character letters. She “prays to the Board” for clemency on the basis that she maintained an untarnished service record prior to the Accusation of April 22, 2021, that she was the victim of a horrific crime that precipitated a series of negative medical and psychiatric conditions that affected her mens rea in committing her crimes, and that a mitigated disciplinary action will enable her to serve patients in time of grave and severe nursing shortages in California and enable her support herself and her family and avoid burdening the state. Pet. Op. Br. at 8-9.

The relevant criteria for rehabilitation when a licensee did not complete a criminal sentence without a probation violation include the nature and severity of the acts, offenses, or crimes under consideration; the time passed since the acts or offenses occurred, the actual or potential harm to the public or any patient, any overall criminal actions by any court or agency, compliance with court-ordered criminal probation, overall disciplinary record, any prior warnings on record or prior remediation, the number and variety of current violations, cooperation with the Board and other law enforcement or regulatory agencies, mitigation evidence, and rehabilitation evidence. under 16 CCR §2522(b).

(1). Nature and Severity of the Crimes/Number and Variety of Current Violations

The offenses are a March 2020 misdemeanor conviction for violating a domestics relations court order, an October 2019 misdemeanor conviction for driving or taking a vehicle without consent, a June 2019 felony conviction for burglary, and a February 2017 conviction for misdemeanor petty theft. None of these convictions is particularly significant, not even the felony burglary because it was Romero’s mother’s home. However, the convictions are numerous, and the crimes were either drug or mental health related.

Romero argues that her two most recent convictions (driving a vehicle without consent and violating a restraining order) were the product of her divorce after long-term “violent and traumatic relationship”, and that her other two convictions for petty theft and burglary stemmed from her victimization from a violent assault on July 25, 2018.

As the Board argues, the facts do not match up. Romero filed for divorce in 2011. AR 342. She provides no connection between the 2011 divorce and her March 2020 misdemeanor conviction for violating a domestics relations court order or her October 2019 misdemeanor conviction for driving or taking a vehicle without consent. As for the alleged 2018 violent assault, there is no evidence in the Administrative Record of such an assault. Romero neither testified about one nor suggested that it caused her to commit any crime. Romero shoplifted on September 22, 2016, so her February 16, 2017 conviction cannot be related to a 2018 violent assault two years later. In any event, victimization from an assault does not excuse, or even explain, unrelated criminal behavior of petty theft and felony burglary of her mother’s home.

In sum, Romero’s crimes were not severe, but they were numerous and either drug or mental health related.

The petty theft of clothes and beauty products from Walmart occurred on September 22, 2016. AR 94, 96-97. The burglary of Quinteros’ home and theft of her car occurred on November 30, 2018. AR 106. The driving or taking a vehicle without the owner’s consent (not Quinteros) occurred on August 13, 2019. AR 129, 132. The violation of a restraining order occurred on March 4, 2020. AR 158. All of these crimes occurred relatively recently before the April 20, 2021 Accusation.

Unlike her 2005 offense, Romero’s crimes did not cause any actual or potential harm to a patient. They did harm the vehicle owners – both Quinteros and an unknown owner – as well Quinteros as homeowner and Walmart.

There are no known criminal actions other than those in the Accusation and no agency actions against Romero other than the Board’s action against her license.

On October 30, 2019, Romero’s probation was revoked for taking or driving a vehicle without the owner’s consent and she was eventually release to the Prototypes program for residential treatment. AR 120.

On December 20, 2019, Romero’s probation was revoked and reinstated for a violation of Prototypes’ terms and conditions, and she was ordered to report to the Alcoholism Center for Women. AR 120-21.

On March 13, 2020, Romero’s probation was revoked after she was arrested for driving or taking a vehicle without consent. AR 121-22. On September 14, 2020, the court revoked and reinstated Romero’s probation, adding an additional 120-day jail sentence with credit for time served. AR 125.

Thus, Romero failed to comply with her probation terms on at least three occasions.

(5). Overall Disciplinary Record/ Prior Warnings on Record or Prior Remediation

The relevant incident is the 2005 stipulated license probation for Romero’s (1) illegal possession of Demerol, (2) falsified hospital records, and (3) dishonest acts after police found a syringe needle with Demerol in Romero’s car after a traffic stop on February 10, 2003. AR 91. The probation expired on May 4, 2008. AR 76.

Although old, the incident shows Romero’s willingness to commit a drug crime directly related to her vocational nurse license. There is no evidence of a prior warning other than the stipulated probation.

Romero successfully completed her 2004 probation and there is no evidence that Romero has not cooperated with the Board.

There is no evidence of other law enforcement or regulatory agency involvement other than the police departments investigating Romero’s criminal cases.

Romero relies on her successful completion in September 2021 of LACADA as part of a court-supervised rehabilitation program. While true, several facts undermine the significance of this rehabilitation evidence.

First, Romero was in the LACADA program only pursuant to court order. It was not a voluntary measure on her part, and this fact undermines its significance. Most people will act on their best behavior when under court supervision and it does not necessarily predict what they will do later on.

Second, Romero did not complete the program without difficulties. She was first conditionally released to the Prototypes program for residential treatment for at least six months, but she was discharged for violation program terms and ordered to report to the Alcoholism Center for Women. AR 121. She then was approved for LACADA’s intensive outpatient treatment and tested positive for amphetamines on April 20, 2021 before completing the program.

Third and finally, Romero only completed the LACADA program on September 15, 2021, just two months before her administrative hearing. AR 209, 241. The recency of this completion makes any conclusion that Romero will refrain from drug abuse less than certain.

The propriety of a penalty imposed by an administrative agency is a matter in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. Lake v. Civil Service Commission, (1975) 47 Cal.App.3d 224, 228. Neither an appellate court nor a trial court is free to substitute its discretion for that of the administrative agency concerning the degree of punishment imposed. Nightingale v. State Personnel Board, (1972) 7 Cal.3d 507, 515. “If reasonable minds might differ as to the propriety of the penalty imposed, this fact serves to fortify the conclusion that the [administrative body] acted within the area of its discretion.” Collins v. Board of Medical Examiners, (1973) 29 Cal.App.3d 439, 446; see also Deegan v. City of Mountain View, (1999) 72 Cal.App.4th 37, 46 (trial court must affirm the punishment imposed “if there was any reasonable basis for sustaining it”); Morton v. Bd. of Registered Nursing, (1991) 235 Cal.App.3d 1560, 1567 (agency’s discretion as to the level of discipline imposed is “virtually unfettered”).

The Board decided that Romero’s rehabilitation evidence is not sufficient to avoid license revocation. AR 255. She has recent and numerous convictions and the conduct underlying those convictions demonstrates a potential harm to patients and the public. AR 254. Romero has a longstanding substance abuse problem and relapsed as recently as April 2021. AR 255. Her “pattern of criminal convictions….involve dishonesty, erratic behavior and disregard for the law” and for the most part “involve conduct while under the influence of drugs.” Id. A vocational nurse “often provides care for vulnerable patients in their homes or other settings putting their personal possessions at risk and making such a licensee’s honesty vitally important.” Id. Romero’s recent intense efforts to obtain sobriety are too recent to know if she will remain sober. Id. Without a sustained period of sobriety and law-abiding behavior, the potential danger to patients and the public is too great to avoid revocation. Id.

The application of the rehabilitation factors under 16 CCR section 2522(b) supports the Board’s decision to revoke Romero’s license. The Board’s opposition also points out that Romero wrongly argues that she worked for 20 years without disciplinary action because she ignores the 2004 stipulated probation which related directly to her vocational nursing work. The Board further correctly points out that none of Romero’s character witnesses -- not even her mother -- was aware of the full extent and seriousness of her criminal activities, and that she relapsed on methamphetamine just 209 days before the hearing. Opp. at 14-15.

The Board’s decision to revoke Romero’s license was not a manifest abuse of discretion.

The Petition is denied, both for procedural failure and on its merits. The Board’s counsel is ordered to prepare a proposed judgment, serve it on Romero for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for August 10, 2023 at 9:30 a.m.

[1] Romero asks the court to grant a motion to augment the Administrative Record that is that her legal representative failed to submit in her defense before the Board. Pet. Op. Br. at 9. No motion to augment is on file, and the Board asserts that Romero never served it with one. Opp. at 14.

[2] Romero notes that she submitted the following supporting exhibits: (1) a LACADA discharge summary; the Victoria’s Places House Guidelines; (2) a LACADA outpatient program enrollment confirmation dated October 9, 2020; (3) a LACADA outpatient program progress letter dated October 12, 2020; (4) a LACADA initial therapy progress letter dated January 25, 2021; (5) a LACADA outpatient program completion dated February 2, 2021; (6) a LACADA parenting class certificate of completion dated February 2, 2021; (7) a LACADA drug and alcohol education program certificate of completion dated February 2, 2021; (8) a LACADA therapy progress letter dated August 2, 2021; (9) a LACADA aftercare program progress letter dated September 2, 2021; (10) a LACADA aftercare program completion letter dated September 15, 2021; and (11) a LACADA recovery support services certificate of completion dated September 15 2021. Pet. Op. Br. at 7-8.