California Court of Appeals, Second District, Fourth Division
ORIGINAL proceedings in mandate. Bob S. Bowers, Judge. Writ granted. Los Angeles County Super. Ct. No. BA389476
Jackie Lacey, District Attorney, Phyllis Asayama, Roberta Schwartz and Cassandra Hart, Deputy District Attorneys, for Petitioner.
No appearance for Respondent.
Joseph F. Walsh for Real Party in Interest Sean Cardillo.
No appearance for Real Party in Interest Andrew Cettei.
WILLHITE, Acting P. J.
The question before us in this writ proceeding is whether a person who does not have a medical license or certificate may be criminally charged with practicing medicine without a license in violation of Business and Professions Code section 2052 for owning a corporation that operates a medical marijuana clinic in which licensed physicians examine the patients and issue medical marijuana recommendations to patients. We conclude that the owner of the corporation may be so charged, and order the respondent trial court to vacate its order dismissing the practicing medicine without a license charge alleged against real parties in interest Sean Cardillo and Andrew Cettei.
A preliminary hearing was conducted on a 13-count felony complaint filed by the Los Angeles County District Attorney against Cardillo and Cettei. Because this writ proceeding raises an issue of law as to one of those counts -- for practicing medicine without a license in violation of section 2052 -- our discussion of the evidence presented at the preliminary hearing will be limited to the evidence relevant to that count. That evidence included the following.
In January 2010, Medical Board Investigator Thomas Morris began an investigation of Kush Dr., a medical marijuana clinic operating at two locations in Venice, California -- 1313 Ocean Front Walk (the 1313 location), and 1811 Ocean Front Walk (the 1811 location) -- after receiving a formal written complaint that those locations were operating as an illegal medical marijuana clinic. In records Morris received from the California Secretary of State, Cardillo is listed as agent for service for Kush Dr., LLC. Other records Morris obtained from the Secretary of State show that Cardillo is chief executive officer of two other businesses at the 1811 location: Canna Merchant and Herbalology. Herbalology was a medical marijuana dispensary located on the second floor of that location, and Canna Merchant was a smoking lounge also located on the second floor.
Morris went to both the 1313 and the 1811 locations and met with the physicians who were seeing patients and issuing medical marijuana recommendations. The physician at the 1313 location, Dr. Karns, told Morris that he was hired by “Andrew” (i.e., Cettei), that his hours were set by Cettei, and that he received one-third of the money collected from patients at that location. The physician at the 1811 location, Dr. Hanson, told Morris that he was hired by Cettei, that Cettei was in control of the practice, and that he was paid by Cettei from the proceeds of the recommendations he wrote, although he was not sure of his rate of pay.
In addition to speaking with the physicians, Morris entered the examination room at each location. Both rooms were small, similar to a closet. Neither room had an examination table or other equipment required to conduct a proper medical examination, other than a blood pressure cuff and a stethoscope. Only the room at the 1811 location had running water.
While he was at the 1811 location, Morris also spoke to Cettei. When Morris told him that licensed physicians must be in charge of medical clinics, Cettei responded that he had a contract showing that Dr. Karns was in charge of the 1313 location. Cettei gave Morris a copy of a lease agreement showing that Kush Dr. was the lessor of the premises at the 1313 location and Dr. Karns was the lessee; Cettei signed the agreement on behalf of Kush Dr. The agreement provided that Dr. Karns, as lessee, would use and occupy the premises to see patients as scheduled by the lessor, that the money collected from the patients would be divided between the lessor and the lessee (with the lessee receiving one-third of the daily profits), and that the lessor would be an agent for the collection of the patient fees.
As part of the investigation of Kush Dr., three undercover agents went to the clinics to get medical marijuana recommendations. They observed people standing in front of each clinic, holding signs and telling passersby that they could “get legal, ” i.e., become a legal medical marijuana user. Although none of the agents actually had any physical ailment, each of them entered the clinic and told the physician he or she had certain symptoms; one said he got headaches from overdrinking, another said he had insomnia, and the third said she could not relax. In each instance, the agent was given a minimal medical examination by the physician, who then provided the agent with a medical marijuana recommendation. When one of the agents disputed the amount he was ...