Tuesday, November 18, 2008
Court Overturns Board’s Revocation of Therapist’s License
By SHERRI M. OKAMOTO, Staff Writer
This district’s Court of Appeal yesterday overturned a decision by the California Board of Behavioral Sciences to revoke the license of a therapist who had engaged in a sexual relationship with a patient for over a year.
Div. Four explained that the board was required to comply with the Administrative Procedure Act’s procedural safeguards in exercising its discretion to determine what penalty to impose on Gary Ventimiglia pursuant to a writ of administrative mandate.
Ventimiglia began practicing as a licensed marriage and family therapist in 1986 and admitted to starting a sexual relationship with a patient, identified as S. D., in 1999.
His attempt to end the relationship in 2001 resulted in an altercation in which Ventimiglia tried to physically remove S. D. from his office, and the police were called. S. D. later reported the relationship to the board, and the board filed an accusation against Ventimiglia.
At a hearing before an administrative law judge, Ventimiglia stipulated to having had a sexual relationship with S. D. while he was treating her, and that he knew or should have known that she was in an emotional and vulnerable position.
The administrative law judge found Ventimiglia had violated Business and Professions Code Sec.729—which bars therapists and other medical providers from engaging in sexual contact with a patient or client—and, among other findings, determined that Ventimiglia presented a substantial amount of credible evidence regarding the background of his therapeutic and sexual relationship with S. D., his remorse, and rehabilitation.
However, the administrative law judge nonetheless concluded that former Sec. 4986.71 required mandatory revocation of Ventimiglia’s license, and the board subsequently adopted the administrative law judge’s decision.
Ventimiglia petitioned for a writ of mandate, arguing that the board had discretion to issue a lesser penalty, and Los Angeles Superior Court Judge Dzintra Janavs, since retired, found that the board’s decision was based on an erroneous statutory interpretation. She issued a peremptory writ of mandate directing the board to set aside its decision revoking Ventimiglia’s license and remanding the matter to re-determine the penalty to be imposed.
After the Court of Appeal affirmed Janavs’ ruling, the board issued a new decision with 18 new paragraphs detailing findings of fact. The board found that Ventimiglia failed to demonstrate remorse, blamed other people and circumstances rather than focusing on his own conduct, and lacked credibility.
It further found that Ventimiglia engaged in acts of sexual contact with a patient he knew to be a borderline unstable individual continually and systematically over a 16 month period and that his efforts at rehabilitation did not justify allowing him to continue to practice as a therapist, even under limited or restricted conditions.
Ventimiglia then brought a second petition for peremptory writ of mandamus, arguing that the board had effectively rejected the administrative law judge’s decision and issued its own, materially different decision. In such circumstances, he contended, the APA required that he be given an opportunity to present argument before the agency.
Janavs determined that the board “did just what the Court commanded it to do,” and ruled that the board’s decision was “not a nonadoption or rejection of a proposed decision of an ALJ, but a decision made in response to a writ of mandate issued by this Court.”
Writing for the appellate court
On appeal, Judge Norman L. Epstein explained that, under the APA, when an agency determines that it will reject the proposed decision of the administrative law, the agency itself shall not decide the case without affording the parties the opportunity to present either oral or written argument.
Noting that the APA does not create an exception to this procedural safeguard when a case is remanded for a new decision following judicial review on a petition for writ of administrative mandamus, Epstein reasoned that once the board determined that it would reject the proposed decision of the administrative law judge, it could not issue a decision without affording the parties an opportunity to present either written or oral argument.
As Ventimiglia never had an opportunity to provide either oral or written argument to the board addressing the board’s new findings and conclusions of law, Epstein, joined by Justices Nora M. Manella and Steven C. Suzakawa, concluded Ventimiglia’s petition for writ relief should have been granted, and ordered the matter remanded for further proceedings.
Kenneth W. Drake and Kenneth R. Myers of Kenneth W. Drake & Associates represented Ventimiglia while Deputy Attorneys General Karen B. Chappelle, Marc D. Greenbaum and Christina M. Thomas represented the board.
Myers said he had not yet had a chance to review the opinion when contacted, but that his client was pleased with the result
The case is Ventimiglia v. Board of Behavioral Sciences, 08 S.O.S. 6193.
Copyright 2008, Metropolitan News Company