This is an appeal from a judgment granting a writ of administrative mandamus against appellant Board of Medical Quality Assurance of the State of California (the Board). The proceedings below were instituted by respondent William T. Williamson, M.D. (respondent), who sought an order setting aside a decision of the Board revoking his license as a medical doctor. The judgment ordered the Board “to reconsider the discipline imposed and make findings as to the propriety and applicability of less drastic alternatives of discipline.”
Facts and Procedural History
The underlying facts are not in dispute. They are succinctly stated in the proposed statement of decision prepared by the administrative law judge and adopted by the Board. The Board’s decision is attached to this opinion as an appendix and incorporated herein. In sum, the statement of decision reveals that respondent, a 79-year-old physician, has a history of long-term drug dependency and of prescribing dangerous drugs/controlled substances to others without a good faith prior examination and medical indication. Consequently, the Board revoked his license to practice medicine.
After the Board revoked respondent’s license and denied his motion for reconsideration, he petitioned the superior court for a writ of administrative mandamus. (Code Civ. Proc., § 1094.5.) Among other things, respondent asserted that the penalty was drastic and, as such, was a clear abuse of discretion.
The judgment reveals that in the exercise of its independent judgment, the court found the evidence supported the factual findings in the Board’s statement of decision. Acknowledging that the discipline which had been imposed was authorized by statute, the court went on to identify the real focus of the petition as being the propriety of the discipline of revocation. In pertinent part, the judgment states: “The difficulty is that neither the board nor the administrative law judge made findings as to penalty by which the court could determine whether there had been an abuse of discretion. . . . Here, neither the board nor the administrative law judge revealed why probation with strict conditions regarding drug use and their prescription, drug testing and treatment, further education, and supervised practice in conjuction [szc] with actual suspension until petitioner could be evaluated would not be sufficient to protect the public—all as contemplated in the ascending order of discipline or probation of [Business and Professions Code] §§ 2221 and 2227. Petitioner’s long service to his community and to
Issues
The issues on appeal are ones of law. First, we are asked to determine whether statutory or case law requires the Board to provide findings as to a penalty imposed. Second, we must consider whether the Board abused its discretion, as a matter of law, when it ordered the revocation of respondent’s license.
Discussion
Penalty Findings.
In pertinent part, Government Code section 11518 provides that after an administrative adjudication, an agency’s decision “shall be in writing and shall contain findings of fact, a determination of the issues presented and the penalty, if any.” Here, the Board’s decision contains 19 findings of fact, a determination of the issues for imposing discipline, and the penalty of revocation; therefore, it complies with these statutory requirements. The Board’s decision admittedly does not include findings as to the penalty; however, the clear language of the statute does not require them.
(Otash
v.
Bureau of Private Investigators
(1964)
The Revocation Penalty and Abuse of Discretion. Because on the erroneous ground that the decision lacked penalty findings the court failed to determine whether the penalty of revocation constituted an abuse of discretion, we do so now.
We recognize that under certain circumstances, the determination of whether a penalty is appropriate is a mixed question of law and fact to which the appellate court may defer to the trial court on the basis of the substantial evidence rule.
(Toyota of Visalia, Inc.
v.
Department of Motor Vehicles
(1984)
Section 1094.5, subdivision (b) of the Code of Civil Procedure defines abuse of discretion in review of an administrative decision as follows: “Abuse of discretion is established if [the Board] has not proceeded in the manner required by law, the order or decision is not supported by the
The inquiry focuses on whether the revocation penalty is supported by the Board’s findings. “The propriety of a penalty imposed by an administrative agency is a matter vested in the discretion of the agency, and its decision may not be disturbed unless there has been a manifest abuse of discretion. [Citations.]”
(Lake
v.
Civil Service Commission
(1975)
“ ‘[I]n reviewing the penalty imposed by an administrative body which is duly constituted to announce and enforce such penalties, neither a trial court nor an appellate court is free to substitute its own discretion as to the matter;
nor can the reviewing court interfere with the imposition of a penalty by an administrative tribunal because in the court's own evaluation of the circumstances the penalty appears to be too harsh.
[Citation.] Such interference, . . . will only be sanctioned when there is an arbitrary, capricious or patently abusive exercise of discretion.’ [Citation.]”
(Cadilla
v.
Board of Medical Examiners
(1972)
Here, the Board’s decision of revocation followed findings of seven individual instances of illegally prescribing drugs and three incidents of falsifying medical records to cover up the illegal prescribing—all occurring between November 1986 and August 1987. The Board was also confronted with evidence of respondent’s personal abuse of drugs.
In addition, the Board was aware that this was not appellant’s first instance of discipline. By an order effective May 12, 1966, the Board previously had revoked respondent’s medical license, stayed this revocation and placed respondent on probation for 10 years without narcotics, and had ordered respondent to surrender his federal narcotics permit. In October 1979, the Board began investigating a complaint by former employees of respondent, who suspected that he was abusing Talwin.
1
Respondent was interviewed by an investigator for the Board concerning this allegation, and he agreed to enter the Board’s diversion program in late 1981. On or about
Although not required to do so, the Board also entered three findings in mitigation.
(Vienna
v.
California Horse Racing Bd.
(1982)
Given this factual foundation, we cannot say that, as a matter of law, the Board abused its discretion when it ordered the revocation of respondent’s license. Even truer today are the words of Justice Dunn written 18 years ago: “In view of the rampant drug abuse problems existing today we cannot say as a matter of law that a board, composed chiefly of licensed doctors who presumably have some professional expertise in the matter, abused its discretion in revoking [the doctor/respondent’s] license.”
(Collins
v.
Board of Medical Examiners
(1972)
Disposition
As the court erred in ordering the Board to reconsider the discipline imposed and to make penalty findings, the judgment is reversed. Instead, a new and different judgment is to be entered denying respondent’s petition for writ of mandate. Each party to bear its own costs.
Woods (A. M.), P. J., and McClosky, J., concurred.
The petition of respondent Williamson for review by the Supreme Court was denied April 18, 1990.
-6-
Notes
Talwin is classified as a schedule IV controlled substance pursuant to Federal Uniform Controlled Substances Act.