Judge James C. Chalfant, Case 22STCP00647 2022-08-02 Tentative Ruling

Petitioner Jeff Blea, D.V.M. (“Blea”) seeks a writ of mandate compelling Respondent Veterinary Medical Board (“Board”) to vacate the Interim Suspension Order (“Order”) it issued on January 28, 2022.

The court has read and considered the moving papers, opposition, and reply,[1] and renders the following tentative decision.

Petitioner Blea commenced this proceeding on February 24, 2022, alleging causes of action for (1) administrative mandamus pursuant to CCP section 1094.5 and (2) declaratory relief with an injunction. The Petition alleges in pertinent part as follows.

Since September 1993, Blea has been licensed by the Board, with his practice almost entirely in equine medicine serving racetracks until June 2021. Veterinarians who practice at racetracks must be licensed by the California Horse Racing Board (“CHRB”) and provide it with reports of the medicine the veterinarian is administering to equine patients. Throughout his tenure, Blea’s practices have conformed to accepted standards of veterinary practice.

On June 30, 2021, Blea retired from his private practice. On July 1, 2021, he accepted a position as the state’s Equine Medical Director (“EMD”) through the School of Veterinary Medicine at the University of California, Davis (“UC Davis”). The EMD advises CHRB on all matters relating to medication and drug testing, the practice of veterinary medicine within the areas regulated by the Board, and the health and safety of horses within CHRB jurisdiction. The position does not entail practicing veterinary medicine. There is no requirement that the director be licensed to practice veterinary medicine by the Board, and several past directors have not been licensed.

In February 2021, the Board began investigating several racetrack veterinarians, leading it to make at least three formal accusations. On December 21, 2021, the Board filed an Accusation against Blea seeking to revoke his license pursuant to Business and Professions Code (“B&P Code”) section 4800 et seq. The Board informed Blea’s counsel that it would apply for an interim suspension order pursuant to B&P Code section 494.

The Office of Administrative Hearings (“OAH”) held a hearing on the Board’s application for an interim suspension on December 24, 2021 and granted it on January 3, 2022. The Office of the Attorney General (“Attorney General”) informed Blea that the functions of EMD constitute the “practice of veterinary medicine” as defined in B&P Code section 4826 and his continuing service in that role after the Order was issued would result in further disciplinary action. As a result, UC Davis placed Blea on administrative leave from his EMD position.

Also on January 3, 2022, OAH issued a corrected Order that scheduled a further hearing on January 21, 2022. After this hearing, OAH rendered a January 28, 2022 decision continuing to impose the Order.

On February 11, 2022, the Board filed and served a First Amended Accusation (“FAA”).

Petitioner Blea seeks (1) a writ of mandate compelling the Board to set aside the Order, (2) a declaratory judgment that service as EMD does not constitute employment or engagement as a veterinarian, does not constitute the practice of veterinary medicine, and does not require the holder of that position to be licensed by the Board, (3) a permanent injunction preventing the Board from interfering or threatening to interfere with Blea’s performance of his duties as EMD, and (4) attorney’s fees and costs.

On February 28, 2022, Petitioner Blea served Respondent Board with the Petition and Summons by substitute service, effective March 10, 2022.

On March 7, 2022, Blea filed an ex parte application for a stay of the Board’s Order, or alternatively for an order that, notwithstanding the Order, Blea may resume his position as EMD and on the Anti-Doping and Medication Committee of the Horseracing Integrity and Safety Authority (“HISA”) of the FTC pending the completion of these proceedings. The court denied the application after a hearing on March 9, 2022.

On April 13, 2022, the Board filed a demurrer to the Petition with motion to strike. On April 14, 2022, the demurrer was taken off calendar.

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. The issue for mandamus is whether the agency proceeded without jurisdiction, did not provide a fair trial, or committed a prejudicial abuse of discretion. An abuse of discretion is established if the agency did not proceed in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. CCP §1094.5(b).

CCP section 1094.5 does not on its face specify which cases are subject to independent review, leaving that issue to the courts. Fukuda v. City of Angels, (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, (1971) 4 Cal.3d 130, 143. See CCP §1094.5(c). In all other cases, the substantial evidence standard applies.

“[W]hether the underlying right is considered fundamental must be considered ‘from the standpoint of its economic aspect or its effect… in human terms and the importance… to the individual in the life situation.’” San Benito Foods v. Veneman (1996) 50 Cal.App.4th 1889, 1896 (quoting Strumsky v. San Diego County Employees Retirement Assn., (“Strumsky”) (1974) 11 Cal.3d 28, 34). “[T]he crucial question [in determining whether a right is fundamental] is not the actual amount of harm or damage in the particular case but the essential character of the right in human terms.” Dickey v. Retirement Board, (1976) 16 Cal.3d 745, 751.

An administrative decision imposing final discipline on a professional licensee is decided under the independent judgment standard. Drummey v. State Board of Funeral Directors & Embalmers, (1939) 13 Cal.2d 75, 84-86; Griffiths v. Superior Court, (2002) 96 Cal.App.4th 757, 767. An interim suspension of a license, however, is statutorily governed by a substantial evidence standard of review. B&P Code §494(g). The court need not decide whether B&P Code section 494(g) is constitutional because Petitioner Blea does not challenge the standard for judicial review. In addition, with the exception of the quantum of evidence for public harm, Blea raises mostly issues of law which the court decides de novo. See Tafti v. County of Tulare, (2011) 198 Cal.App.4^th 891, 896. See Opp. at 5.

An agency is presumed to have regularly performed its official duties (Ev. 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.

An administrative agency does not have the power to (1) declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional; (2) declare a statute unconstitutional; or (3) declare a statute unenforceable, or to refuse to enforce a statute on the basis that federal law or federal regulations prohibit the enforcement of such statute unless an appellate court has made a determination that the enforcement of such statute is prohibited by federal law or federal regulations. Cal. Const., Art. III, §3.5.

A board or an administrative law judge sitting alone may, upon petition, issue an interim order suspending any licentiate or imposing restrictions. Business & Professions Code[2] §494(a). The petition shall include affidavits that demonstrate, to the satisfaction of the board, that (1) the licentiate has engaged in acts or omissions constituting a violation of this code or has been convicted of a crime substantially related to the licensed activity; and (2) permitting the licentiate to continue to engage in the licensed activity, or permitting the licentiate to continue in the licensed activity without restrictions, would endanger the public health, safety, or welfare. §494(a).

The board or administrative law judge shall issue a decision on the petition for interim order within five business days following submission of the matter. The standard of proof required to obtain an interim order pursuant to this section shall be a preponderance of the evidence standard. §494(e). If the interim order was previously issued without notice, the Board shall determine whether the order shall remain in effect, be dissolved, or modified. §494(e).

Interim orders shall be subject to judicial review under CCP section 1094.5, but such review is limited to a determination of whether the board abused its discretion in the issuance of the interim order. §494(g). Abuse of discretion is established if the respondent board has not proceeded in the manner required by law, or if the court determines that the interim order is not supported by substantial evidence in light of the whole record. §494(g).

Protection of the public shall be the highest priority of the Board in exercising its licensing, regulatory, and disciplinary functions. §4800.1. The Board’s enforcement priorities include cases involving repeated acts of excessive prescribing, furnishing, or administering controlled substances as defined in section 4021, without a veterinarian-client-patient relationship pursuant to 16 CCR section 2032.1. §4875.1.

The Board may deny, revoke, or suspend a license or registration or assess a fine for unprofessional conduct including but not limited to violations of any federal statute, rule, or regulation or any of the statutes, rules, or regulations of this state regulating dangerous drugs or controlled substances. §4883(g)(3). This includes the state’s statute that no prescriber shall dispense drugs or dangerous devices to patients in his or her office or place of practice unless all conditions are met, including that the dangerous drugs or dangerous devices are necessary in the treatment of the condition for which the prescriber is attending the patient. §4170(a)(2).

The Board may also deny, revoke, or suspend a license or registration for (1) fraud, deception, negligence, or incompetence in the practice of veterinary medicine; and (2) violation, or the assisting or abetting violation, of any regulations adopted by the board pursuant to this chapter. §§ 4883(i), 4883(o).

CHRB shall contract with the Regents of the University of California to provide equine drug testing. §19578(a). It shall contract to provide compensation for an equine medical director who shall be appointed by the Dean of the School of Veterinary Medicine under applicable university hiring rules with the advice of the Board. §19578(e). The equine medical director shall be a member of the scientific advisory committee to the Kenneth L. Maddy Equine Analytical Chemistry Laboratory, and act as the primary advisor to the Board on all matters relating to medication and drug testing, the practice of veterinary medicine within the areas regulated by the Board, and the health and safety of horses within the enclosure. §19578(e).

Blea has been a veterinarian with license number 11982 since 1993. Until June 2021, he had a private practice almost exclusively concerning equine medicine for racetrack horses. On June 30, 2021, Blea retired from his private practice. AR 490.

On July 1, 2021, Blea accepted a position as the state’s EMD through the School of Veterinary Medicine at UC Davis. The EMD helps oversee the CHRB 's drug testing program, works with investigators on medication violations, liaises with peer directing programs at UC Davis, and works with Official Veterinarians in their oversight of practicing veterinarians. AR 490.

On February 9, 2021, the Board received a complaint alleging that multiple veterinarians prescribed or dispensed thyroxine and other drugs to horses under the jurisdiction of CHRB without appropriate diagnostics. AR 434. Thyro-L Thyroxine, sold under the trade name Thyro-L, is a prescription medicine used to treat hypothyroidism and used for treatment of obesity and insulin resistance in horses. AR 438. The drug is not approved by the FDA, and various groups discourage its use on a herd health basis unless the specific animal has abnormal thyroid function. AR 424, 437-38.

The Board reviewed the anonymous complaint, the medical records of six of Blea’s equine patients, and Veterinarian Confidential Reports (“VCRs”) for racehorses that Blea treated from January to March 2021. AR 434. These mandatory confidential reports listed all treatment provided to these horses during that period, although the review was limited by CHRB’s practice of destroying handwritten reports more than six months old. AR 441.

Based on these documents, Board investigator James Howard (“Howard”) concluded that Blea had violated the Veterinary Medical Practice Act (“VMPA”). AR 434. The reports showed that Blea prescribed medication such as acepromazine and thyroxine during drug consultations, but the reports did not contain required documentation that Blea conducted the necessary physical examination or diagnosis of the underlying condition justifying treatment in violation of section 4483(i). AR 435-36; see AR 703, 706, 709, 717. Some of the drugs, such as Thyro-L, were prescribed despite the absence of any medical need based on test results. AR 437; see AR 706, 729. Providing medicine that is unnecessary for treatment of a condition is unprofessional conduct under section 4483(g)(3). AR 437.

Because of Blea’s failure to examine, diagnose, and document the course of treatment for the horses, Howard also found that he failed to establish veterinarian-client-patient-relationships (“VCPR”) before administering these treatments in violation of section 4483(g) and 4483(o). AR 439-40. Finally, because Thyro-L and other drugs were not approved by the FDA for use in veterinary patients, their use was further unprofessional conduct under section 4483(g)(3). AR 440.

Howard further noted that the drugs in question are known to give horses an unfair advantage by increasing metabolism, lightening the horses through dehydration, and masking conditions that would render a horse unsound for racing. AR 441.

The VCRs for horses treated by Blea from January to March 2021 revealed that he treated 3,225 horses over 67 working days in that three-month span, averaging 48 per day. AR 441. Howard saw no substantial difference between these VCRs and those for the six horses he cited to show Blea’s violations of the VMPA. AR 441. Comparisons of the VCRs revealed that Blea would give the same drug to large numbers of horses owned by the same trainer – e.g., aspirin powder given to 11 horses trained by “M.P.” on January 23, 2021. AR 442, 858. This suggested that Blea treated the racehorses without any medical necessity. AR 441-42.

Aside from violating the VMPA, Blea’s decision to treat racehorses without documenting the specific diagnosis in a medical record and without establishing a VCPR violated the American Association of Equine Practitioners’ (“AAEP”) Clinical Guidelines for Veterinarians Practicing in a Pari-Mutuel Environment. AR 447, 458, 460-61.

Howard opined that as EMD, Blea wielded influence over CHRB investigations of medication violations and racehorse deaths. AR 445. Blea’s violations matched the allegations against many racetrack veterinarians and there is a significant concern that Blea may not be transparent and cooperative in the oversight and release of information for medication violations in the death of a racehorse. AR 447. Blea’s effectiveness as a regulator of a culture he has been a part of for 28 years is a concern. AR 447.

On December 21, 2021, the Board filed an Accusation against Blea and an ex parte petition for a temporary suspension order under section 494 that relied on Howard’s declaration. AR 417. The petition asserted that, as EMD, Blea had “immeasurable influence over the drug testing program, necropsies of racehorses, death investigations, and medication violation investigations.” AR 491. An interim suspension order was therefore necessary to prevent him from endangering racehorse health and avoid possible undue influence in UC Davis drug testing programs and any death investigations. AR 491.

The Administrative Law Judge (“ALJ”) held a December 24, 2021 hearing, at which Blea chose not to address the merits of the Accusation. AR 1806. He instead asserted that the question for purposes of an interim suspension was whether he poses a threat or danger to the public welfare or animal patients, which he contended was unlikely because he was no longer seeing patients. AR 1806.

On January 3, 2022, the ALJ granted the petition and issued the Order. AR 148. The ALJ acknowledged that an individual appointed as EMD need not hold a veterinarian license. AR 140. Additionally, the Board did not provide any evidence suggesting that it had the authority to invalidate Blea’s appointment to, or interfere with his duties for, the EMD position. AR 142. The Board’s stated goal in pursuing an Order was to prevent Blea from using that position to interfere with investigations into the sudden deaths of racehorses at CHRB facilities. AR 143.

The ALJ found that the burden of proof for an Order is preponderance of evidence. AR 145. The preponderance of evidence established that Blea treated over 3,000 horses in a three-month period, administering dangerous drugs to them without documented examinations or diagnoses in what is unprofessional and negligent conduct that violated the VMPA. AR 143, 147. While Blea was not practicing at the moment, the threat of him returning to private practice and causing further harm to the public welfare is real as long as his license is valid. AR 144, 147.

The ALJ granted the ex parte petition for issuance of the Order and set a noticed hearing on the petition for January 21, 2022. AR 148. UC Davis subsequently placed Blea on administrative leave. AR 676.

During the January 21, 2022 hearing, Blea again chose to not to defend against the underlying violations. AR 1865. He argued that an interim suspension order is the equivalent of a temporary restraining order (“TRO”), and that the standard is “pretty extraordinary” and requires clear and convincing evidence. AR 682, 1865.

On January 28, 2022, the ALJ upheld the Order. AR 688. The ALJ concluded that the burden of proof for an interim suspension order is preponderance of evidence under section 494(e). AR 683. Even if such a standard unconstitutionally denies Blea due process as he claims, administrative agencies do not have the authority to assess the constitutionality of a statute or choose not to enforce because it believes the statute is unconstitutional. AR 685. No appellate court had ruled that section 494(e) or its standard of proof was unconstitutional. AR 685.

The ALJ summarized Howard’s findings that (1) Blea’s records indicate that he did not conduct a proper examination or diagnose the six equine patients with any medical condition that required treatment before he administered dangerous drugs, (2) he did so without documenting any examination or diagnosis that such treatment was necessary, and (3) he provided drugs to large numbers of horses in a short period of time based on what the trainers wanted and not on documented examination, diagnosis, or medical necessity. AR 678-80.

The ALJ observed that Blea argued that Howard’s opinion was based on facts without evidentiary support and factors that were speculative or conjectural. AR 682. Blea also argued the drugs he used were either approved by the FDA for use in the United States or could be used without FDA approval, and none were prohibited by CHRB. AR 682.

The ALJ rejected Blea’s contentions that Howard lacked the experience to offer his expert opinion or failed to provide the factual basis for it. AR 685-86. Blea failed to provide any evidence that veterinary medical services provided to equine patients in racetracks differ from the veterinary medical services provided to equine patients in other environments. AR 686.

Based on the evidence and Howard’s analysis, the ALJ concluded that the Board established by a preponderance of the evidence that Blea had violated the VMPA. AR 687. While Blea was not practicing at the moment, the threat of him returning to private practice and causing further harm to public welfare was real as long as his license was valid. AR 687.

Petitioner Blea raises two issues: (a) whether the ALJ applied the correct burden of proof and (b) whether the Board met its burden of showing that, if Blea’s license is not immediately suspended, he would endanger the public welfare.

The Board argues that the case is moot – Blea even concedes that the practical benefit from this Petition is “small” and “fleeting” – because the final decision on the Accusation against him may be issued prior to the court’s decision on this Petition. The administrative hearing on the Accusation is scheduled to start on August 8, 2022. As the outcome of this Petition will have little to no practical impact on Blea, it is moot and should be dismissed. Opp. at 14-15.

“A case is moot when the decision of the reviewing court ‘can have no practical impact or provide the parties effectual relief.’” M HC Operating Ltd. P'ship v. City of San Jose, (2003) 106 Cal.App.4th 204, 214. “Although a case may originally present an existing controversy, if before decision it has, through the acts of the parties or other cause, occurring after commencement of the action, lost that essential character, it becomes a moot case or question which will not be considered by the court.” Wilson v. Los Angeles County Civil Service Com., (1952) 112 Cal.App.2d 450, 453.

Blea responds that the court should reach a decision as to the two core questions of law presented in the opening brief to provide future guidance to the parties and to others similarly situated based on a mootness exception for matters likely to reoccur. “‘If an action involves a matter of continuing public interest and the issue is likely to recur, a court may exercise an inherent discretion to resolve that issue, even though an event occurring during its pendency would normally render the matter moot.’ Liberty Mut. Ins. Co. v. Fales, (1973) 8 Cal.3d 712, 715-16. Reply at 4-5.

There is no need to consider the “capable of repetition” exception to mootness because the case is not moot. The FAA against Blea is set to be heard beginning August 8, 2022, a matter of days from the instant hearing, but that does not mean it soon will be completed. Blea states that the administrative hearing is scheduled for 16 days and should end on August 29, 2022 (Pet. Op. Br. at 8), and there is no guarantee that will be the case. Additionally, administrative hearings are often continued, are subject to post-hearing briefing, and the final decision comes after such briefing. The court cannot assume that the Board will render a final decision on the FAA anytime soon and therefore this case is not moot.

As Petitioner argues (Pet. Op. Br. at 8-9), the Board is authorized in an appropriate disciplinary case to apply for an interim suspension order that suspends the licensee’s right to practice during the time that the accusation is being heard and decided. §494(a). As pertinent, the petition for interim suspension shall demonstrate to the satisfaction of the Board through affidavit that (1) the licentiate has engaged in acts or omissions constituting a violation of the Business and Professions Code and (2) permitting the licentiate to continue to engage in the licensed activity would endanger the public health, safety, or welfare. §494(a). The petitioner must prove that an interim suspension is warranted by a preponderance of the evidence standard. §494(e).

Blea contends that the ALJ abused her discretion by refusing to apply the constitutionally mandated standard of clear and convincing evidence to a reasonable certainty and instead applied the statutory preponderance of the evidence standard in section 494(e). He argues that it was an abuse of her discretion not to hold the Board’s Executive Officer to the same higher standard as applies in every case in which a professional license is suspended or revoked. Pet. Op. Br. at 10.

The ALJ applied a preponderance of the evidence standard over the objection of Blea’s counsel. AR 683. The ALJ ruled that she could not act on the constitutionality of the burden of proof in section 494(e). “Even assuming that Respondent’s argument has merit, administrative agencies do not have the authority to assess the constitutionality of a statute or to refuse to enforce a statute on that ground unless an appellate court has held that the statute is unconstitutional. (Cal. Const., Art. III, §3.5.)” AR 685.

“An administrative agency, including an administrative agency created by the Constitution or an initiative statute, has no power:

(a) To declare a statute unenforceable, or refuse to enforce a statute, on the basis of it being unconstitutional unless an appellate court has made a determination that such statute is unconstitutional….

Blea argues that a choice between two standards of proof -- one statutory and the other constitutionally required -- is not a “refusal to enforce” the statute under Art. III, section 3.5. The word “enforcement” typically refers to substantive requirements or prohibitions, not to procedural rules or rules of evidence. Blea contends that Art. III, section 3.5 “merely ‘places restraints on administrative agencies relative to their refusal to enforce statutes on constitutional grounds; it does not affect their enforcement of their own rules or their competence to examine evidence before them in light of constitutional standards.’” Dash, Inc. v. Alcoholic Beverage Control Appeals Bd. (9th Cir. 1982) 683 F.2d 1229, 1234 (citations omitted). Pet. Op. Br. at 14-15.

Blea is incorrect. The ALJ must follow the statutes governing the Board and was constitutionally proscribed from refusing to enforce section 494(e)’s preponderance of the evidence burden of proof. Pursuant to Art. III, section 3.5, state agencies must apply statutes despite constitutional doubts unless and until an appellate court decides it is unconstitutional. See Lockyer v. City & County of San Francisco, (2004) 33 Cal.4^th 1055, 1083-84 (court need not decide whether Art. III, section 3.5 applies to local officials because they do not possess the authority to determine that a statute is unconstitutional under common law). The ALJ correctly noted that no appellate court has determined B&P section 494(e) to be unconstitutional. AR 685. Had the ALJ ignored the unambiguous language of section 494(e) and refused to enforce it, she would have violated the California Constitution.

The ALJ applied the standard of proof required by section 494(e) as she was required by law to do.

Blea correctly notes that, if the ALJ was barred from applying the constitutionally mandated standard of proof, that is no bar to him raising the objection before this court. Chevrolet Motor Division v. New Motor Vehicle Bd., (1983) 146 Cal.App.3d 533, 539. Pet. Op. Br. at 15. Art. III, section 3.5 does not deprive the superior court of the power to declare a statute unconstitutional and order an agency not to enforce it against the challenging party. Therefore, the court must address the Board’s Executive Officer’s correct burden of proof before the ALJ.

When an administrative agency seeks to revoke or suspend a license, the agency must bear both the burden of production and the burden of persuasion. Daniels v. Department of Motor Vehicles, (1983) 33 Cal.3d 532, 536. “[A]n individual having obtained the license required to engage in a particular profession or vocation, has a ‘fundamental vested right’ to continue in that activity.” Hughes v. Board of Architectural Examiners, (“Hughes”) (1998) 17 Cal.4^th 763, 788-89 (due process permits discipline for pre-licensure conduct).

For the suspension or revocation of a professional license, an agency must provide its case “by clear and convincing proof to a reasonable certainty” rather than preponderance of the evidence. Ettinger v. Board of Medical Quality Assurance, (1982) 135 Cal.App.3d 853, 856 (imposing a clear and convincing standard for physician discipline because its purpose is to protect the public and it would be anomalous to treat physicians differently than attorneys or real estate agents); The Grubb Co., Inc. v. Department of Real Estate, (“Grubb”) (2011) 194 Cal.App.4th 1494, 1502 (statute that permits agency to discipline real estate broker based on civil judgment obtained by a preponderance of the evidence violates due process); Realty Projects, Inc. v. Smith, (1973) 32 Cal.App.3d 210, 212 (real estate license revocation). This procedural protection is consistent with the constitutional due process right to practice a profession. Hughes, supra, 17 Cal.4^th at 788-89. “[U]nder the California Constitution, the suspension or revocation of a professional license must be based on misconduct proven by clear and convincing evidence.” Grubb, supra, 194 Cal.App.4^th at 1502 (citing Hughes, supra, 17 Cal.4^th at 789, n.9).

Blea relies on Grubb. Pet. Op. Br. at 12-13. In Grubb, an employee of a licensed real estate broker represented both sides to the sale of a residence. 194 Cal.App.4^th at 1496. The sale fell through and the sellers refused to return the buyers’ deposit. Ibid. The buyers sued the sellers, the brokerage, and several of the brokerage’s employees. Ibid. The jury returned a verdict finding that the brokerage and one of its employees had made misrepresentations and breached their fiduciary duty. Ibid. The jury also found that the buyers had not shown malice, fraud, or oppression by clear and convincing evidence in order to support punitive damages. Ibid.

The Real Estate Commissioner initiated administrative disciplinary proceedings and imposed against Grubb under section 10177.5, which authorized discipline against a real estate licensee based on a civil judgment for misrepresentation, fraud, or deceit. Id. at 1497. The appellate court concluded that collateral estoppel could not apply to impose discipline because the brokerage’s “due process right to proof by clear and convincing evidence” barred reliance on the civil judgment for purposes of licensing discipline because it was not supported by clear and convincing evidence. Id. at 1503. Notwithstanding section 10177.5’s requirement that discipline be imposed based on the civil judgment, due process does not permit a civil judgment to be used to impose discipline where it was reached based on a lower standard of proof than the one required in the disciplinary proceeding. Ibid.

Blea argues that there is no principled reason why Grubb’s rule for clear and convincing evidence would not also apply to an interim suspension proceeding. Pet. Op. Br. at 13-14.

The Board responds that statutes are generally presumed to be constitutional. P roperty Reserve, Inc. v. Superior Court, (2016) 1 Cal.5th 151, 192. The Board argues that courts have consistently held that a temporary restraint on liberty is permissible to prevent harm, and due process does not necessarily require the same standard of proof for interim orders as is required for final adjudication of the charges. The Board correctly notes that E ttinger, supra, 135 Cal.App.3d at 853 and Grubb, supra, 194 Cal.App.4th at 1494, are distinguishable because they concern the standard of proof for final discipline after hearing on an accusation and do not address proceedings involving interim orders. Opp. at 6-7.

Consistent with section 494(e) is the statutory interim suspension of a medical professional license where the statutory degree of proof also is not clear and convincing evidence. An interim suspension may be granted against a medical professional’s license if there is a reasonable probability that the Medical Board will prevail and there is a likelihood of injury to the public in not issuing the order that outweighs the likelihood of injury to the licensee. Govt. Code §11529(e). This statute adopted a standard consistent with the preliminary injunction standard in a civil case under CCP §527 and overturned Silva v. Superior Court, (1993) 14 Cal.App.4^th 562, 569-71, which construed the previous version of Govt. Code section 11529 to require clear and convincing evidence.

In Gow, the court addressed a preliminary injunction in a public nuisance abatement action for obscenity. Id. at 872. The court held that, while a permanent injunction carries a proof beyond a reasonable doubt standard (for First Amendment reasons), this is not the burden of proof for a preliminary injunction. “A preliminary injunction, however, is only a temporary remedy[;]....the trial court does not decide the case on its merits; it merely decides whether or not a defendant's activities should be limited during the period before a final judgment is made.” I bid. (italics in original).[3]

The Board notes that a court may grant a preliminary injunction in a civil action which burdens constitutional rights to the extent necessary to serve a significant government interest. M adsen v. Women’s Health Center, Inc., (1994) 512 U.S. 753, 765. The Board contends that section 494(e)’s preponderance of the evidence standard for an interim suspension is consistent with its legislative purpose of preventing harm; it would be anomalous to require a higher degree of proof for interim suspension orders than for a preliminary injunction that places a temporary restraint on constitutionally-protected liberties. Opp. at 8-9.

Blea argues that an interim suspension is still a suspension, and it is still subject to the constitutional requirement that the state must produce evidence of compelling weight and persuasive power. The damage to a licensee’s reputation, and the interference with licensees’ ability to practice within their profession, is just as immediate and irremediable for an interim suspension lasting a period of weeks or months as it is for a for a term of suspension. In most cases the licensing agency will be prepared to present its full case at the time it applies for an interim suspension. Reply at 7, n. 1. There is no reason, in law or in policy, to permit a board to impose a suspension on its licensee except when its case for doing so is compelling from the outset -- i.e., when the board is satisfied at the time the accusation is made that it will be able to prove its principal case on the merits clearly and convincingly to a reasonable certainty. Reply at 7.

While Blea makes a good argument, it is worth noting that the preponderance of the evidence standard in section 494(e) is supported by the procedural protection of a swift final decision. Section 494(f) expressly requires that the board shall file an accusation within 15 days of the interim order. If the licentiate defends, the hearing must be held within 30 days of receipt of the notice of defense. §494(f).[4] The decision must be made within 30 days after submission of the matter. Id. The board’s failure to comply with these timelines dissolves the interim order as a matter of law. Id. The prompt resolution of the accusation suggests that a temporary burden on a licensee may constitutionally justify a lesser burden of proof.

The court concludes that the constitutionality of a preponderance of evidence burden of proof for interim suspensions has not been properly briefed by the parties. There is no controlling case law. Silva v. Superior Court, supra, 14 Cal.App.4^th at 569-71 -- the case which Govt. Code section 11529(e) overturned to set a standard for the interim suspension for medical professionals consistent with a preliminary injunction under CCP §527 -- expressly declined to determine whether due process requires the clear and convincing evidence standard of proof for the interim suspension of a medical professional license.

The due process constitutionality of the burden of proof for a section 494 interim suspension must be evaluated by addressing the factors articulated by the United States Supreme Court in Mathews v. Eldridge, (“Mathews”) (1976) 424 U.S. 319, 335 and embellished by the California Supreme Court in People v. Ramirez, (“Ramirez”) (1979) 25 Cal.3d 260, 269. Pursuant to Ramirez, the due process required in a particular circumstance in California requires consideration of (1) the private interest that will be affected by the official action, (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards, (3) the dignitary interest in informing individuals of the nature, grounds and consequences of the action and in enabling them to present their side of the story before a responsible governmental official, and (4) the governmental interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” 25 Cal.3d at 269. Except for the additional “dignitary interest” factor, this balancing test is nearly identical to the one articulated by the United States Supreme Court in Mathews, supra, 424 U.S. at 335. “Thus we must look to and weigh the various interests at stake before deciding what procedures are constitutionally required.” Saleeby v. State Bar, (1985) 39 Cal.3d 547, 565.

Neither Blea nor the Board addresses the Mathews/Ramirez factors. The Board also fails to present the legislative history for section 494 on which it purports to rely. Based on the insufficiency of the evidence and argument presented, the court declines to decide whether the Board is required to prove the allegations for an interim suspension by clear and convincing evidence. Given the proximity of the upcoming hearing on the FAA, there is no reason for the court to require additional briefing.[5]

Blea argues that the Board’s Executive Officer was obliged to prove by “affidavits that demonstrate” both that he engaged in conduct violating the VMPA and that he “would endanger” the public if his license is not immediately suspended -- i.e., that there is an articulable and imminent peril if he is not instantly sidelined. §494(a). Pet. Op. Br. at 15.

The Board correctly points out (Opp. at 9-10) that section 494(a) does not require a showing of “imminent danger”. Section 494(a)(2) provides that a board may issue an interim order suspending any licentiate after a showing that “[p]ermitting the licentiate to continue to engage in the licensed activity, or permitting the licentiate to continue in the licensed activity without restrictions, would endanger the public health, safety, or welfare.” (emphasis added). The term “endanger” means “to expose to danger,” which is the commonly understood and plain meaning.

Blea responds that the Board’s position disregards the express language of the section 494(a), which requires that the licentiate’s continued licensed activity “would endanger the public”, as well as general law governing the proof required for restraining orders and prohibitory preliminary injunctions. Blea relies on Gray v. Superior Court, (“Gray”) (2005) 125 Cal.App.4th 629, as instructive. Reply at 9-11.

In Gray, a psychiatrist facing criminal charges of unlawfully prescribing and possessing controlled substances was prohibited from practicing medicine as a condition of bail. Id. at 635. The physician pursued judicial relief from this bail condition. Id. at 636. The appellate court concluded that a prohibition on medical practice is not an unreasonable bail condition per se, but “its imposition violated Gray's procedural due process rights” where he has not been convicted and not received a preliminary hearing on the charges and where he otherwise would have been entitled to statutory procedures before the Medical Board. Id. at 643.

In discussing alternatives available to the Medical Board, the court considered a preliminary injunction under section 2312, which has the same language as section 494 concerning danger to the public: “The Division of Medical Quality shall seek to obtain an injunction against any physician and surgeon within its jurisdiction if the division has reasonable cause to believe that allowing such person to continue to engage in the practice of medicine would endanger the public health, safety, or welfare.” Id. at 639-40. The court emphasized the need for a specific and direct danger posed by the licensee:

“In the absence of a verified showing of threatened harm by the moving party, a trial court exceeds its jurisdiction by granting a preliminary injunction....[T]he complaint alleges no facts supporting a conclusion that permitting Gray to practice medicine poses an imminent danger of serious injury to the public. Therefore, if the Medical Board had pursued an injunction instead of a bail condition prohibiting Gray from practicing medicine, the trial court's order would constitute an abuse of discretion because there is no competent evidence demonstrating a serious threat of injury to the public....” Id. at 640–41.

Gray does not aid Blea. Gray’s reference to “imminent danger of serious injury” is both dictum for its holding that the psychiatrist’s bail condition violated due process and loose language not tailored to the statute. See §2312. The fact is that neither section 2312 nor 494(a) requires imminent harm. They only require the risk of harm to the public welfare, a concept familiar to any court handling preliminary injunctions. The purpose of licensing statutes is to protect the public (§4800.1) and neither actual nor imminent harm is required. See K earl v. Board of Medical Quality Assurance, (1986) 189 Cal.App.3d 1040, 1053 (actual harm not required for discipline of physician’s license).

Blea contends that the ALJ did not require a showing by affidavit that permitting him to practice “would endanger the public health, safety, or welfare”. Rather, the ALJ found that the Board’s proof of a violation of the VMPA was sufficient to warrant a “presumption of public endangerment”, shifting the burden to him to affirmatively establish that he posed no such danger.

The ALJ relied on IT Corp. v. County of Imperial, (“IT Corp”) (1983) 35 Cal.3d 63, 72-73, and stated in her decision: “[The Board] need only prove it is more likely than not that [Blea] violated the Practice Act....Once [the Board] meets [its] burden, a rebuttable presumption of public endangerment arises. See IT Corp....” AR 683.

In IT Corp, the plaintiff corporation engaged in disposal of hazardous waste and had obtained a conditional use permit (“CUP”) from the county authorizing construction of a disposal facility. 3 Cal.3d at 68. The county filed a cross-complaint against the company seeking injunctive relief from the company's violation of the CUP. Id. The county’s ordinances specifically authorized an injunctive remedy for violation of its zoning laws, declaring any such violation to constitute a nuisance subject to abatement. Id. at 68, n. 3.

In determining the proper standard for the issuance of the preliminary injunction, the California Supreme Court held that where a government agency seeks a preliminary injunction for violation of a statute or ordinance that specifically provides for injunctive relief, a rebuttable presumption arises that the potential harm to the public outweighs any harm to the defendant. Id. at 72. If the defendant shows that it would suffer grave or irreparable harm from the issuance of the preliminary injunction, the court must then examine the relative actual harms to the parties. Ibid. The court concluded that the trial court’s issuance of a preliminary injunction was not an abuse of discretion because the county demonstrated a reasonable probability it would prevail in establishing a violation of the CUP and the corporation failed to show grave or irreparable harm to rebut the presumption. I d. at 73-75.

Blea argues that the circumstances in IT Corp differ significantly from an interim suspension under section 494(a). When an ordinance or statute includes injunctive relief as a remedy for its violation, it is reasonable to infer that the legislators included that injunctive authority precisely because the prohibited activity is likely to affect public safety in a manner warranting immediate remedial action. The county ordinance in IT Corp was clear on this point, declaring zoning violations to be a nuisance, which is by definition a harmful condition. 3 Cal.3d at 68, n. 3. In that circumstance, a presumption of potential harm is “baked in” to the authorization to seek injunctive remedies.

In contrast, section 494(a) authorizes a prohibitory injunction against the practice of a licensed profession where the statutes regulating the conduct do not do so. Section 494 is a catch-all provision permitting suspension of a professional license for violation of any provision of the Business and Professions Code. Moreover, section 494 explicitly calls for the agency seeking the suspension to submit “affidavits that demonstrate” the existence of imminent harm. This requirement is inconsistent with the existence of a presumption concerning the matter to be demonstrated by those affidavits. Pet. Op. Br. at 17.

Blea is correct. The ALJ erroneously relied on the rebuttable presumption of public endangerment in I T Corp to show irreparable harm to the public welfare. IT Corp’s holding is that irreparable harm is presumed where a statute or ordinance provides for enforcement of a violation by injunction. As Blea describes it, this is for statutes or ordinances that “bake in” injunctive relief. In contrast, section 494(a) is a general statute authorizing any pertinent board to issue an interim suspension upon a necessary showing. It is not relief tied to any violation of the VMPA (§4800 et seq.). Indeed, the court is unaware of any case holding that a rebuttable presumption of harm applies to a disciplinary case, whether a public employee or licensee. IT Corp’s holding may well be limited to nuisance cases, which is the situation in which the presumption of harm typically arises.

Moreover, Blea rightly argues that the ALJ ignored section 494(a)’s requirement that the Board’s Executive Officer must show by affidavit that continued license activity would endanger the public welfare. Nothing in section 494(a) permits the Board to bypass the necessary showing through a presumption.

The ALJ abused her discretion by relying on a presumption of harm upon a showing that Blea violated the VMPA.

The ALJ found that “permitting [Blea] to practice and engage in veterinary medicine poses a risk of injury to the public health, safety, and welfare.” AR 687. “Though [Blea] argues that he is not currently practicing, this does not ensure public safety. As long as [his] license to practice is active, he is free to return to the practice of veterinary medicine at any time.” AR 687.

Blea argues that the Board’s Executive Officer presented no evidence that he posed an actual threat to the public welfare. He has left private practice and had ceased every violation of the VMPA he was alleged to have committed nearly six months before the Accusation was filed because he had become EMD. Blea argues that the ALJ’s finding of a danger was based entirely on speculation that events that might happen, not events likely to happen. There is not a single shred of evidence that any of the violations would occur again during the pendency of the administrative case, and certainly no evidence that the danger only could be addressed by stripping Blea of his license. Pet. Op. Br. at 17-18; Reply at 11-12.

The ALJ found that Blea engaged in “conduct that is negligent, unprofessional, and poses a danger to the public health, safety, and welfare.” AR 687. This finding is undisputed for this case. Blea’s medical records evidence his failure to examine and diagnose six equine patients prior to administering medically unnecessary drugs. AR 435-36, 703, 706, 709, 717, 719, 722, 727, 752-57, 759-63, 765-70, 772-78. His VCRs show that he routinely and customarily administered medically unnecessary drugs to racehorses at the behest of a trainer. AR 442. He was a prolific veterinarian, administering drugs to approximately 3,225 horses over 67 working days between January and March 2021, an average of 48 different racehorses each working day. AR 441. He consistently failed to establish a VCPR, examine and diagnose racehorse patients before prescribing and administering drugs.

From this evidence and the ALJ’s findings of misconduct, the Board argues that Blea’s continued licensure poses a public endangerment. Blea’s argument that he poses no danger to the public because he is the UC Davis EMD and no longer sees patients is an argument that he is not a danger because he is choosing not to be a danger is not reliable assurance. Blea may no longer treat equine patients, but that does not preclude a finding of public endangerment. Opp. at 11.

The court agrees with Blea that this argument is speculation. But there also is real evidence of danger to public welfare. Nothing in section 494 states that public harm only exists where a licensee is actively involved in patient care or personally interacting with consumers. The EMD is primarily responsible for the enforcement of violations that harm the health and safety of racehorses, including medication and drug testing, and the practice of veterinary medicine at racetracks. AR 676; §19578. The EMD oversees the UC Davis Kenneth L. Maddy Equine Analytical Chemistry Laboratory drug-testing program, works with CHRB investigators to investigate potential medication violations, liaises with peers directing programs at UC Davis, including the UC Davis-CHRB necropsy program, and works with Official Veterinarians in their oversight of practicing veterinarians. AR 444-45, 490. The EMD has control or influence over the drugs administered to racehorses, drug detection, and the investigations of medication violations and racehorse deaths, including the direction of the investigation, the necropsies, and their results. AR 490-91.

Blea’s numerous violations of the VMPA reflect at best a casual approach to veterinary racehorse medicine. The Board notes that Petitioner was an author of the “Clinical Guidelines for Veterinarians Practicing in a Pari-Mutuel Environment” (“Guidelines”) published by the American Association of Equine Practitioners. AR 458, 467. The Guidelines’ important core recommendations include (a) all therapeutic treatments for a horse involved in racing or race training should be based on a specific diagnosis and administered in the context of an owner-trainer-veterinarian relationship, and (b) all medical treatments and diagnostic procedures performed on a horse in a race or training center setting should be documented in a medical record.” AR 460-61. These core recommendations were developed for the “health, safety and welfare of the racehorse.” AR 459. Blea’s failure to adhere to his own recommendations illustrates that he does not act in the best interests of his equine patients. Opp. at 12-13.

As the Board argues (Opp. at 12), if Blea is allowed to continue his EMD role, his involvement will raise questions about the integrity of the drug testing program, the investigations, their findings, and their results due to the unquestionable conflict of interest. Public trust will diminish. Without a trusted drug testing system and without impartial, complete, and accurate investigations, the Board will be prevented from learning the true causes of horse death and injury, from enforcing the VMPA, and from instituting remedial action or regulations to curb unnecessary deaths of racehorses. AR 447. Indeed, this public harm is why the Board pursued the Order to prevent Blea from using his EMDt position to interfere with investigations into the sudden deaths of racehorses at CHRB facilities. AR 143. See AR 23, 447.

The ALJ’s finding that Blea would be a danger to the public if he retained his license is supported by substantial evidence. §494(g).[6]

The Petition is denied. The Board’s counsel is ordered to prepare a proposed judgment, serve it on the Petitioner Blea’s counsel 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 September 13, 2022 at 1:30 p.m.

[1] On July 25, 2022, the Board filed an opposition to a motion by CHRB to file an amicus curiae brief in this action. No such motion has been filed. CHRB only lodged a courtesy copy of its application without filling it. Therefore, the court need not consider CHRB’s application for leave to file an amicus brief.

[2] Unless otherwise stated, all further statutory references are to the Business & Professions Code.

[3] The Board also relies on civil harassment and workplace violence cases in which a petitioner need only show reasonable proof for the issuance of a temporary restraining order. CCP §§ 527.6(d), 527.8(e). Opp. at 8. These statutes are sui generis and have little relevance to the interim suspension of a license.

[4] The Board’s Executive Officer filed the Accusation on December 21, 2021, and the ALJ issued the final Order on January 28, 2022. Although the Board was required to hold a hearing on the Accusation (now FAA) within 30 days, Blea presumably consented to postpone the hearing until August 8, 2022.

[5] The Board is correct (Opp. at 9) that, by not disputing the facts found by the ALJ, Blea fails to show a reasonable probability of a different outcome on the charges supporting the Order. Due process violations always require prejudice and Blea has not demonstrated a reasonable probability of a different outcome on the charges if the ALJ had applied the clear and convincing evidence standard. F isher v. State Personnel Bd., (2018) 25 Cal.App.5th 1, 20 (“Reversible error requires demonstration of prejudice arising from the reasonable probability the party ‘would have obtained a better outcome’ in the absence of the error”).

Blea replies that, while this may be true for the charged offenses, the ALJ did not have clear and convincing evidence, or any direct evidence at all, of public endangerment. He argues that the ALJ’s failure to apply a clear and convincing evidence standard unquestionably relieved the Board of its burden to demonstrate an articulable cause and effect relationship between specific danger and his continued licensure during the pendency of the Accusation. Reply at 8. The court will address this issue post.

[6] As stated ante, Blea argues that the ALJ did not have clear and convincing evidence of public endangerment and that he was prejudiced by her failure to apply the proper standard. Reply at 8. This issue is problematic. The inferences arising from the evidence of Blea’s casual approach to racehorses do not necessarily rise to the level of clear and convincing evidence of public harm. As a result, it is not clear that the ALJ should have reached the same result if she applied a clear and convincing standard. See Fisher v. State Personnel Bd., supra, 25 Cal.App.5th at 20. The court need not decide this issue because it has declined to decide whether a clear and convincing standard is constitutionally required.