IS REPORTING MANDATORY?

Our communications are not intended to deal exclusively with mandatory reporting requirements, whether applicable or not. The Administrative Procedure Act (APA) is found in the California Government Code, section 11340 et seq. This statute establishes “rulemaking” procedures and standards for California state agencies. Additionally, California regulations must be in compliance with regulations adopted by OAL (see California Code of Regulations, title 1, sections 1-280).  The California Code of Regulations is the official publication of regulations adopted, amended or repealed by California state agencies. Reporting requirements vary from state to state and may be different from one California Regulatory Agency to another. The mandated reporting can be found in the particular license “Practice Act” as well as the rules and regulations that apply to  the profession or occupation.

Example for a Pharmacist: ANY controlled substance loss, small or large, must be reported to the California Board of Pharmacy (BOP) within fourteen (14) calendar days from the date of loss when it was a result of the theft by a licensed employee, or when it is from any other type of loss, within thirty (30) calendar days.

Example for an RN: is the reporting of convictions by Applicants for an RN license issued by the Board of Registered Nursing (BRN). All prior convictions substantially related to the duties, functions and/or qualifications of a registered nurse are reviewed by the BRN on a case by case basis. Since July 1, 2020, applicants are not asked about their prior criminal conviction history, but they will be discovered upon the Board’s receipt of an individual’s fingerprint results.The Board will not generally take action on convictions older than seven years, however, there are several exceptions, such as a serious felony that includes approximately 42 different crimes. Upon renewal of a nurse’s license, the BRN requires nurses to disclose whether they have had ANY license disciplined by a government agency or other disciplinary body; or if they have been convicted of any crime in any state, U.S. territory, military court or other country since their  last renewal. Failing to disclose ANY conviction may be grounds for disciplinary action as the government will contend you falsified information required on your renewal form; this is mandatory even when a conviction is expunged. As stated earlier in this paragraph, any felony or misdemeanor conviction substantially related to the duties, functions and/or qualifications of a registered nurse can be the basis for disciplinary action.

Example for a Physician, who is licensed in California is required to notify the Medical Board (MBC) of certain specific occurrences. Reporting forms and links are set forth below. Pursuant to California Business & Professions Code:

  • § 801.01(b)(2), a licensee must report malpractice settlements over $30,000 and judgments or arbitration awards of any amount, if the licensee does not possess professional liability insurance. (See Report of Settlement, Judgment or Arbitration Award)
  • § 802.1, a licensee must report:
  • An indictment or information charging a felony against the licensee.
  • A conviction, including any verdict of guilty, or plea of guilty or no contest, of any felony or misdemeanor. (See Physician Reporting – Criminal Actions)
  • §2240, a licensee who performs a medical procedure outside of a general acute care hospital, that results in the death of any patient on whom that medical treatment was performed by the licensee, or by a person acting under the licensee’s orders or supervision, shall report, in writing, on a form prescribed by the board, that occurrence to the board within 15 days after the occurrence. (See Outpatient Surgery – Patient Death Reporting Form)
  • § 2021, each licensee shall report to the board each and every change of address within 30 days after each change. (See Notification of Name Change and Address of Record )

We begin with a laser focused analysis of all of the facts and circumstances, and a pivotal strategy to develop a lengthy and comprehensive written presentation, 60 to 75 pages, so that our client is not defined by the actual and perceived conclusions regarding an underlying case. In addition, we pursue and underscore exculpatory evidence and other proof by initiating steps that minimize the risk our client is charged with unprofessional conduct &/or other grounds for disciplinary action. We do not gamble on the Regulatory Agency claiming the underlying situation is substantially related to the duties, functions and qualifications of a licensed professional or occupation. We also do not want to gamble the governmental agency may not perceive there is a basis  to conclude a possible threat to the health and safety of the public; nor do we want to risk by assuming that unequivocally the underlying matter does not evince unfitness, lack of good judgment, etc.

Please note the CALIFORNIA CODE OF REGULATIONS, 16 CCR § 1444 states: [§ 1444. Substantial Relationship Criteria]. “A conviction or act shall be considered to be substantially related to the qualifications, functions or duties of a registered nurse if to a substantial degree it evidences the present or potential unfitness of a registered nurse to practice in a manner consistent with the public health, safety, or welfare Such convictions or acts shall include but not be limited to the following: [Emphasis Added; we prefer to error on the side of caution and, therefore, have provided the information herein](a) Assaultive or abusive conduct including, but not limited to, those violations listed in subdivision (d) of Penal Code Section 11160. (b) Failure to comply with any mandatory reporting requirements. (c) Theft, dishonesty, fraud, or deceit. (d) Any conviction or act subject to an order of registration pursuant to Section 290 of the Penal Code (Emphasis Added).

We understand a previous case may be unsettling; however, our role is to level the playing field and we do so by underscoring in a long written argument both a defense and offense. If you have a situation you would like us to be of  assistance, do not hesitate to send an email [or call us at 1.619.583.0350] during our regular hours of 8:30 am to 8:30 pm seven (7) days a week.

 

What Are Adverse Childhood Experiences (ACE)?

For the most part, many of us have not read or heard about ACE’s, the acronym for adverse childhood experiences. Whereas highly negative experiences as a child often create indelible marks in his/her brain impacting child development, they do not have to be irreversible. For more information of significant interest, see the following:  https://acestoohigh.com/2012/10/03/the-adverse-childhood-experiences-study-the-largest-most-important-public-health-study-you-never-heard-of-began-in-an-obesity-clinic/

Negative childhood experiences inevitably can cause anxiety, toxic stress, fear, shame, disappointment, anger,  hopelessness, helplessness, despair and depression. They can arise from one or more specific incidents of neglect; physical, sexual, verbal and/or emotional abuse; and  family dysfunction in general.  When the feelings that arise from such experiences become intolerable, they can move from being an acute and temporary problem to a chronic and continuing episode. For far too many, they not only impact a child’s development but frame their adult life. They are often linked to and the causal factor behind substance abuse; mental illness; criminal behavior; separation and divorce; neuro-psychiatric and neuro-psychological problems, major medical health conditions as well as auto-immune diseases; work absences and employment problems. However,  learning more about this scourge and most importantly obtaining appropriate and if necessary ongoing care and treatment can alter the fabric of life.

Far too many examples are evident in the news every day, yet there are clues that either were ignored &/or rationalized by parents, siblings, relatives, peers, friends and associates. Become more aware of those you love and with whom you associate so that their personal feelings are addressed, if only to be the one who listens and hears the challenges and struggles they may experience. Hopefully, encouragement will suffice; however, recommending one obtain counseling and professional guidance may ultimately be the best remedy and tool for accommodating negative feelings and ultimately reduce  the ACE score.  Also, see https://www.socialjusticesolutions.org/2014/08/07/q-pediatrician-screens-parents-kids-trauma-ace-score-9/

 

Filner agrees to resign

After only eight months as mayor, Bob Filner has agreed to resign in the wake of multiple sexual harassment accusations.

So far, 18 women have come forward to publicly accuse Filner of sexual harassment, and a former aide filed a lawsuit against him and the city, seeking damages. The city has agreed to pay for some of Filner’s legal fees in exchange for his resignation. They will also cover any damages awarded in the lawsuit brought against him.

It is fortunate that Filner has finally agreed to resign. A person who cannot control or manage their own personal life should not be allowed to control and manage a city.

 

Sheriff’s deputy charged with 11 different counts

A sheriff’s deputy in Los Angeles County was accused of raping women and soliciting bribes while on duty. He is set to appear in court on Wednesday.
28-year-old Jose Rigaberto Sanchez was arrested in his home on Monday night after a three-year investigation. He is being charged with 11 different counts.
The article did not include any interview with the officer &/or his lawyer; no discussion regarding officer’s family,  social history and mitigation, if any. What has happened to honest and balanced journalism? It seems more and more we are provided with short references to events with little analysis and even less about the people and their background to invite a dialogue &/or serious reflection.
Clearly, our system of justice requires that he be given the benefit of doubt and not be tried in the news, regardless how serious and horrific the alleged crimes are, and for which our hearts go out to the victims and their families.
Commentary by Sam Spital, San Diego Criminal Defense Lawyer and former Deputy Attorney General. 

Sex offenders, criminals allowed to be counselors

The lax credentialing system in California has allowed convicted sex offenders and people with substance abuse problems to work with clients.

California is one of only two states that does not require background check on people who are registering to become substance-abuse counselors. No criminal background check is run, and in fact applicants are never asked to disclose any past trouble with the law.

An investigation run by the Senate Office of Oversight and Outcomes revealed that, since 2005, there are 23 sex offenders who have been registered or certified to work as substance-abuse counselors.

 

Police are searching for a man that sexually assaulted a woman at Historic Mission in Oceanside

Police are searching for an unknown man who allegedly sexually assaulted a woman on the grounds of a historic mission in Oceanside last month.

According to investigators, the sexual assault happened on Mar. 18 around 3:30 p.m. outside the Mission San Luis Rey on Mission Avenue.

Police say a man grabbed a female victim, fondled her and allegedly attempted to drag her into some nearby bushes. The woman fought back, striking the suspect, and was able to run away.

Three weeks later, police say the suspect is still at large. On Wednesday, officials released a composite sketch of the man.

Investigators describe him as a Hispanic man in his 30s, approximately 6-feet-tall and 200 pounds. He has brown or black shoulder-length hair, a moustache, a large mole on his neck and a tattoo of a snake on the back of his left forearm.

The Oceanside Police Department is asking anyone with information on this case to contact detectives handling the case at (760) 435-4824 or (800) 78-CRIME.

Statutory Rape Suspect Arrested in San Diego

A Canadian man has been charged with statutory rape and arranging to have sex with a minor in San Diego. In addition to rape charges, the man is accused of possessing child pornography.

San Mateo detectives believe the 26-year-old had been speaking with a 16-year-old San Mateo girl online and was allegedly planning on meeting the minor. Detectives began posing undercover as the teen girl and arranged a meeting with the man at a San Francisco airport. The man flew in from Canada and was then arrested.

A follow-up investigation led detectives to the discovery of child pornography on an electronic device belonging to the suspect. As a result, authorities obtained an additional arrest warrant for him.

 

Hotel Sex Assault Suspect to Stand Trial

A man faces seven felony charges for allegedly beating and sexually assaulting a female housekeeping employee in San Diego. The suspect will stand trial on charges which include three counts of rape by force. According to the report, the man attacked the 54-year-old woman when she was cleaning an empty hotel room.

After the attack, the suspect allegedly fled on foot, but he was arrested three days later. If convicted, the man will face up to 450 years to life in prison. The woman testified at the preliminary hearing and detailed the events that took place.  She stated the man struck her in the head, left her unconscious, and raped her multiple times.

Crime lab personnel identified the man as a prime suspect after DNA linked him to the attack. The suspect is believed to have been connected to another reported sexual assault that took place in October.

O.C. swim coach banned for life; other coach resigns

A Mission Viejo swimming coach has been banned for life by swimming’s national governing body after he admitted to having inappropriate conduct with a female teenage swimmer. According to the report, the coach became involved with a 15-year-old when he was 28-years-old and developed a long-term sexual relationship with the teen girl.

In a separate case, an Orange County swim coach resigned from his position at Golden West Swim Club (GWSC) after a story reporting his alleged sexual misconduct and inappropriate behavior toward female teen swimmers. As a result, the GWSC has implemented policies and programs through a non-profit foundation designed to prevent inappropriate behavior toward athletes.

The swimmer involved in the case of the Mission Viejo Natadores coach case chose not to file a complaint or participate in the investigation. The coach however, stated that an inappropriate relationship occurred and thus he elected not to contest the sanctions imposed, including a lifetime ban.

The case for the Golden West Swim Club coach remains under investigation.

 

Deputy Arrested for Allegedly Soliciting Prostitutes

An undercover prostitution sting has led to the arrest of a San Diego sheriff’s deputy. The deputy, a helicopter pilot, faces one count of soliciting prostitution.  As a result of the arrest the officer has had his badge and gun revoked and he has been placed on paid administrative assignment pending the outcome of his case. According to the report, the deputy has been with the department since 1991.

 

Ratings and Reviews

10.0Samuel Eugene Spital Samuel Eugene SpitalClients’ ChoiceAward 2020 Clients Choice Winner, 2007 to 2019 in Administrative Law Clients Choice Winner, 2007 to 2019 in Litigation avvo rated 10/10 in Federal Crime Law avvo rated 10/10 in Administrative Law avvo rated 10/10 in Criminal Defense avvo rated 10/10 in Juvenile Law avvo rated 10/10 in Licensing avvo rated 10/10 in Personal Injury Top ContributorAward 2012Samuel Eugene Spital Samuel Eugene SpitalReviewsout of 207 reviews