APPEAL from a judgment of the Superior Court of Los Angeles County, James Chalfant, Judge. Affirmed. (Los Angeles County Super. Ct. No. BS112764).
The opinion of the court was delivered by: Kitching, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
The Dental Board of California (board) revoked Scott Sandarg's dental license after adopting a decision by an administrative law judge. Sandarg filed a petition for a writ of mandate in the superior court seeking reinstatement of his license. The superior court denied Sandarg's petition. We affirm.
We publish a portion of this opinion in order to address an issue of first impression: What is the standard of proof for a petition to revoke a dental licentiate's probation? We shall conclude that the standard of proof is preponderance of the evidence.
1. The Initial Revocation of Sandarg's License and the Placement of Sandarg on Probation
Sandarg obtained a license to practice dentistry in California in 1997. Shortly after obtaining his license, Sandarg commenced a course of conduct that led to disciplinary action.
In 1999, the board filed an accusation against Sandarg for self-furnishing of a controlled substance and alteration of patient charts.*fn2 In March 2000, the board and Sandarg entered into a stipulation in settlement of the accusation, which became effective as of April 17, 2000.
Under the stipulation Sandarg admitted that in violation of Business and Professions Code section 1680, subdivisions (m) and (s), he unlawfully used anabolic steroids in 1998 and 1999 to enhance his participation in martial arts. Sandarg further admitted that he falsely told board investigators that he used steroids to treat his patients and that he altered his patient records to support this false story.
The stipulation provided that Sandarg's license was revoked. However, the revocation order was stayed and Sandarg was placed on probation, subject to 15 terms and conditions, for a period of five years ending on April 17, 2005. (See Bus. & Prof. Code, § 1671.) There were five terms and conditions of probation that are relevant here: (1) condition No. 2 required Sandarg to participate in a diversion program if the program manager determined that his participation would be appropriate; (2) condition No. 3 required Sandarg to obey all federal, state and local laws and regulations governing the practice of dentistry, and to remain in full compliance with any court-ordered criminal probation, payments and other requirements; (3) condition No. 4 required Sandarg to submit quarterly declarations under penalty of perjury on the board's quarterly report compliance forms stating whether he complied with all the conditions of probation; (4) condition No. 7 required Sandarg to inform the board in writing within 15 days of any change of address of his practice or residence; and (5) condition No. 12 required Sandarg to abstain from all use and possession of controlled substances unless legally prescribed for medically or dentally diagnosed health reasons for a bona fide illness or medical/dental condition.
In addition, the stipulation provided that if Sandarg violated any terms of the probation, the board could set aside its stay order and revoke Sandarg's license. Further, the stipulation stated that if during the period of probation, an accusation or petition to revoke probation was filed against Sandarg's license or the Attorney General's office was requested to prepare an accusation or petition to revoke probation during that time, the probationary period would be automatically extended and would not expire until the accusation and/or petition to revoke probation was acted upon by the board.
2. Sandarg's Violation of a Provision of the Harbors and Navigation Code
On March 31, 2001, Sandarg received a citation for reckless operation of a vessel in violation of Harbors and Navigation Code section 655, subdivision (a). The San Bernardino district attorney later filed a criminal complaint against Sandarg charging Sandarg with reckless operation.
The criminal complaint was subsequently amended to dismiss the reckless operation charge and to add a charge of violation of Harbors and Navigation Code section 652, subdivision (c), which prohibits the use of a vessel which does not carry the equipment or meet the standards required by law. On November 5, 2001, Sandarg pleaded nolo contendere to violation of section 652(c), a misdemeanor, and the superior court found him guilty based on his plea.
3. Sandarg's Positive Tests for Controlled Substances
Between April 6, 2001 and October 13, 2005, Sandarg tested positive six times for controlled substances, including anabolic steroids. Sandarg claimed that he had prescriptions for these drugs.
4. Sandarg is Convicted of Violating Drug Laws and for Illegally Dumping Waste Matters
On February 20, 2004, Sandarg was arrested for unlawful possession of several controlled substances, including methamphetamine, hydrocodone, and Valium, and for depositing waste matter in violation of Penal Code section 374.3, subdivision (a). Based on the evidence gathered at the time of Sandarg's arrest, the Orange County District Attorney filed a felony complaint setting forth nine counts. Of relevance here, count 1 charged Sandarg with possession of a controlled substance (methamphetamine), a felony, in violation of Health and Safety Code section 11377, subdivision (a). Count 3 charged Sandarg with being under the influence of a controlled substance (methamphetamine), a misdemeanor, in violation of Health and Safety Code section 11550, subdivision (a). Count 4 charged Sandarg with dumping waste matter, a misdemeanor, in violation of Penal Code section 374.3(h)(1).
On September 7, 2004, Sandarg pleaded guilty to counts 1, 3 and 4, and the district attorney dismissed the remaining counts. As part of the plea agreement, Sandarg admitted the following: "On or about February 20, 2004 in Orange County, I willfully and unlawfully possessed a usable quantity of a controlled substance, to wit: methamphetamine, and was under the influence of the same. [¶] I also dumped waste matter in non-commercial quantities, unlawfully."
As to counts 1 and 3, the court deferred judgment pending Sandarg's completion of a drug treatment program pursuant to Penal Code section 1000. On June 14, 2006, the court held a hearing regarding counts 1 and 3. The court found that Sandarg's testimony was not credible and ordered Sandarg's drug treatment program pursuant to Penal Code section 1000 terminated. On October 10, 2006, the court imposed a suspended sentence of three years of formal probation, and ordered Sandarg to complete a drug treatment program.
On April 27, 2007, Sandarg filed a motion to declare his conviction of possession of a controlled substance a misdemeanor. On September 27, 2007, the motion was granted.
On July 11, 2007, Sandarg filed a petition to set aside plea and vacate judgment with respect to counts 1 and 3. On November 2, 2007, the petition was granted on the grounds that Sandarg had "successfully complete drug treatment and substantially complied with the conditions of probation."
5. The 2006 Accusation and Petition to Revoke Probation
In September 2006, the board filed an accusation and petition to revoke probation.
The accusation set forth 10 alleged causes for discipline. The first cause for discipline was conviction of crimes substantially related to the practice of dentistry. This cause was based on Sandarg's convictions of possessing a controlled substance, being under the influence of a controlled substance, dumping waste matter, and violating Harbors and Navigation Code section 652, subdivision (c). The second cause for discipline was for convictions of crimes involving controlled substances or dangerous drugs.
The third cause for discipline was for repeated acts of negligence and/or incompetence. This cause was based on the following allegations. From about 2002 through 2004, Sandarg "regularly wrote prescriptions to his patients for the benzodiazepine derivative, Diazepam (Valium), and had his staff fill the prescriptions at a local pharmacy, Savon, near his office." After giving the patients a few tablets of Valium, Sandarg "would keep the remaining tablets in his office, ostensibly for future appointments." Sandarg "combined the partially-filled Valium prescription bottles for various patients into a single container ostensibly for dispensing to patients by his staff and failed to follow procedures required by law."
The fourth cause for discipline was for excessive prescribing. This cause was based on the same facts that supported the third cause for discipline.
The fifth cause for disciple was for possession of controlled substances or dangerous drugs. The board alleged that on February 20, 2004, the Huntington Beach police performed a search of Sandarg's vehicle and found numerous controlled substances, including methamphetamine, diazepam and hydrocodone, as well as dangerous drugs, including amitriptyline and levothyroxine. The board further alleged that on or about March 1, 2005, agents of the Drug Enforcement Agency (DEA) performed a lawful search of Sandarg's residential property and found numerous controlled substances and dangerous drugs, including anabolic steroids and hydrocodone.
The sixth cause for discipline was for obtaining controlled substances by fraud, deceit or misrepresentation. The board alleged that from 2002 to 2004, Sandarg obtained prescriptions for steroids from a Dr. Jim D'Amico, a licensed dentist in Florida. Dr. D'Amico, however, is not licensed to practice dentistry in California ...