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Judge Chalfant Failed to Yield to Discretion of Licensing Agency, Appeals Court Holds
Reversal Is Along Same Lines As One a Day Earlier
By a MetNews Staff Writer
A Los Angeles Superior Court judge, for the second time in two days, has been reversed by the Court of Appeal for this district based on its perception that he substituted his view as to appropriate discipline for that of a licensing body.
The judge, James C. Chalfant, was countermanded on Wednesday by Div. Two in an unpublished opinion by Justice Victoria M. Chavez.
The California State Board of Pharmacy on Dec. 11, 2018, adopting the recommendation of an administrative law judge (“ALJ”), revoked the pharmacy license of Medhat Bakr who in 2013 altered or forged prescriptions for pain medications, controlled substances, for his son, a burn victim. The revocation was to take effect on Jan. 10, 2019.
On Jan. 9, 2019, Bakr filed his writ petition. Two days later, Chalfant granted his ex parte application for a stay, with two conditions: that he not fill any prescription for a family member and not fill a prescription that was phoned in with a verification being faxed by the doctor’s office.
Chalfant’s Decision
Chalfant on Oct. 31, 2019, granted a writ of administrative mandamus ordering the board to set aside its decision. He acknowledged:
“The reviewing court does not substitute its judgment for the discretion of the administrative agency.”
However, he found, revocation of Bakr’s license constituted “a manifest abuse of discretion,” the standard for granting writ relief.
The judge set forth in his decision:
“While Bakr’s misconduct was serious, it is unlikely that he would face a similar situation in the future. The ALJ purported to address the uniqueness of the situation by stating that his misconduct could be repeated ‘under unusual or stressful situations.’…The ALJ may have been referring to the prospect that Bakr would be tempted to forge pain medication prescriptions for other family members who were seriously ill or suffering pain. However, this situation—where Bakr is acting as the pharmacist for his own family members—could be prevented through other measures besides license revocation.”
As examples of such measures, he pointed to those contained in his stay order.
‘Situation Was Unique’
Chalfant continued:
“Second, and more important, Bakr has demonstrated that the situation was unique and not likely to be repeated. He practiced pharmacy for 23 years, from 1990 until 2013, without a similar incident. After his 2013 misconduct, he continued to practice for five more years without incident. As Bakr argues, there is no better proof that his misconduct will not be repeated than this five year period without dishonest acts….Bakr’s refusal to accept responsibility and express remorse is not, therefore, dispositive of the likelihood to repeat the misconduct and is overcome by evidence showing that it is unlikely to be repeated.”
Aside from that, he noted, no harm was caused to anyone by virtue of his misconduct.
Chalfant alluded also to an instance of misconduct in 2015, noted by the board. Bakr filled a prescription where a doctor neglectfully indicated the patient was to take “1/12 tablet every other day” and one tablet on alternate days; the pharmacist included on the label the instruction to take “½” tablet every other day while, the ALJ found, what was intended was taking “1½” tablets every other day, faulting Bakr for not checking with the physician to resolve the ambiguity.
No Financial Benefit
The judge said of Bakr:
“His 2013 intentional misconduct occurred over a two-day period and Bakr was motivated by concern for his son. His 2015 misconduct was only negligent in nature. By the 2018 hearing, more than five years had passed since the 2013 offenses and three years since the 2015 negligence. Bakr received no known financial benefit from either misconduct.”
He remarked:
“In making this ruling, the court has in mind that the Board has expertise in pharmacy prescription matters concerning controlled substances and dangerous drugs….But it is also true that the maximum discipline of professional license revocation is a drastic remedy.”
Chavez’s Opinion
In her opinion reversing the judgment granting a writ, Chavez wrote:
“The record discloses no manifest abuse of discretion by the Board in the discipline it imposed. The Board is authorized by statute to revoke a pharmacist’s license when it finds the licensee has engaged in unprofessional conduct….Unprofessional conduct includes ‘any act involving moral turpitude, dishonesty, fraud, deceit, or corruption.’…The Board’s disciplinary guidelines also state that revocation may be appropriate for violations involving fraudulent acts and for repeated violations of controlled substance prescriptions. The disciplinary guidelines further state that no single one or combination of factors is required to justify the maximum penalty in any given case.
“Here, there were multiple violations of controlled substance prescriptions that also involved dishonest or fraudulent conduct. The evidence showed that the June 6, 2013 Norco prescription Bakr processed for his son was not authorized; neither was the June 17, 2013 Norco refill; the June 6, 2013 Motrin prescription was for 40 tablets, not 120 as filled by Bakr; and the June 5, 2013 prescription for Tramadol was for 50 tablets, not the 100 tablets filled by Bakr. Although Bakr testified that he received telephonic authorization for these prescriptions, the ALJ found Bakr’s testimony not credible.”
She went on to say:
“Bakr…contends the mitigating factors outweighed the aggravating factors, and alternative methods of discipline could have been imposed. A reviewing court cannot, however, reweigh the evidence….Although the penalty of revocation may seem unduly harsh under the circumstances presented, we are not free to substitute our own discretion for that exercised by the Board in this case….When reasonable minds can differ over the appropriateness of the penalty imposed, no manifest abuse of discretion has occurred.”
The case is Bakr v. California State Board of Pharmacy, B303980.
Yanking Teacher’s Credentials
On Tuesday, Div. Seven of this district’s Court of Appeal, in an unpublished opinion by Acting Justice Timothy Dillon, a Los Angeles Superior Court judge serving on assignment, likewise observed that the revocation of a teacher’s credentials by a state agency was “harsh.” He said, however, that the facts “do not present the exceptional case in which reasonable minds cannot differ,” and held that Chalfant erred in setting aside the determination.
There, the California Commission on Teacher Credentialing in 2017 stripped a man of his teaching license because he had, in 2006, caused the pregnancy of a former student of his. It did not deem of significance—as Chalfant had—that she was at the time of the relationship an adult, attending a different high school from the one at which the teacher was employed, and that there had been a substantial passage of time.
Dillon concluded that the commission’s decision “was within its discretion.”
Judge’s Bleak Week
Chalfant, who is seldom reversed, has been on a losing streak this week. On Monday, in a published opinion, Div. Four of this district’s Court of Appeal granted a petition for a writ of mandate overturning a preliminary injunction he had granted which blocked enforcement of an emergency order by the Los Angeles County’s Department of Public Health barring outdoor restaurant dining in light of the current pandemic.
Chalfant wanted a “risk-benefit” analysis showing a need for the order before he would validate it.
Justice Brian S. Currey said:
“We now hold that courts should be extremely deferential to public health authorities, particularly during a pandemic, and particularly where, as here, the public health authorities have demonstrated a rational basis for their actions. Wisdom and precedent dictate that elected officials and their expert public health officers, rather than the judiciary, generally should decide how best to respond to health emergencies in cases not involving core constitutional freedoms. Courts should intervene only when the health officials’ actions are arbitrary, capricious, or otherwise lack a rational basis, or violate core constitutional rights, which demonstrably is not the case here.”
Although the county has lifted the order, the matter was not deemed moot in light of the prospect that it might be reinstated.
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