Bd. of Behavioral Sciences v. Ventimiglia 02:15:2007
Bd
Bd. of Behavioral Sciences v. Ventimiglia
Filed 1/18/07 Bd. of Behavioral Sciences v. Ventimiglia CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
Bill Lockyer, Attorney General, Alfredo Terrazas, Senior Assistant Attorney General, Karen B. Chappelle, Lead Supervising Deputy Attorney General, Jennifer S. Cady and Christina Thomas, Deputy Attorneys General, for Defendant and Appellant.
Rushfeldt, Shelley & Drake LLP, Kenneth W. Drake and Erica A. Levitt for Plaintiff and Respondent.
The issue in this appeal concerns the proper interpretation of former section 4982.26 of the Business and Professions Code, the statute governing the administrative penalty for a licensed marriage and family therapist who has sexual contact with a patient or former patient.[1] Until it was amended effective January 1, 2006, section 4982.26 provided that administrative decisions containing a finding of inappropriate sexual contact â€
Description
The issue in this appeal concerns the proper interpretation of former section 4982.26 of the Business and Professions Code, the statute governing the administrative penalty for a licensed marriage and family therapist who has sexual contact with a patient or former patient. Until it was amended effective January 1, 2006, section 4982.26 provided that administrative decisions containing a finding of inappropriate sexual contact "shall [also] contain an order of revocation [of the therapist's license]," and that "[t]he revocation shall not be stayed by the administrative law judge." (Stats. 1994, ch. 1274, $ 32.) Section 4982.26 now provides that "[t]he board [referring to appellant Board of Behavioral Science of the California Department of Consumer Affairs (BBS)] shall revoke any license" where there has been a finding that the licensee engaged in inappropriate sexual contact with a patient, and that "[t]he revocation shall not be stayed by the administrative law judge or the board." ($ 4982.26, italics added; see $ 4980.03, subd. (a).) The question raised is whether, prior to 2006, the BBS had discretion to stay the license revocation of a therapist who had engaged in such behavior. The trial court concluded, based on both the plain language of the statute and its legislative history, that former section 4982.26 permitted the BBS to exercise discretion whether to stay revocation of the license in such situations, and that the BBS erred in failing to do so in the underlying case involving the license of respondent Gary Ventimiglia, M.F.T. The court issued a writ directing the BBS to set aside its decision revoking respondent's license and to re_determine the penalty to be imposed in light of the court's ruling. Court affirm.
