Unlicensed Practice of Medicine Although No Patients Seen?

Business and Professions Code § 2052 prohibits practicing medicine without a license.
Summary:  Owners of Venice Medical Marijuana Clinic May Be Charged with the Unlicensed Practice of Medicine Although They Did Not See Patients.
Sean Cardillo and Andrew Cettei operated two Venice, California medical marijuana clinics, both on Ocean Front Walk.  Cardillo was the chief executive officer of Kush, Dr., LLC.  Cetti apparently ran the business on a day-to-day basis, hiring doctors to see patients, who then gave out medical marijuana recommendations.

In January, 2010, Medical Board Investigator Thomas Morris began an investigation of Kush, Dr., after receiving a formal written complaint that the two clinic locations were operating an illegal business.

Morris went to the two locations and met with the physicians who were seeing patients and issuing medical marijuana recommendations.  Morris went to the examination rooms in both locations.  Both rooms, Morris describe in his report, were the size of a closet and had no examination table.  Only one location’s examination room had running water.  Both had only one item to conduct a medical examination; a blood pressure cuff.

Morris spoke to Cettei at one of the clinics.  Morris told Cettei that a licensed physician had to be in charge of the clinic.  Cettei then produced the lease for one of the locations, showing that one of the licensed physicians was the lessor and thus, Cettei claimed, was in charge of the clinic.

As part of the investigation, The Medical Board also sent three undercover agents to the clinic to get medical marijuana recommendations.  Before entering the clinic, the agents had to pass by people holding signs outside the clinic and telling passersby that they could “get legal.”  None of the agents had any physical ailments.

One agent told the doctor he got headaches when he drank too much beer.  Another said he had insomnia.  Another said he had anxiety.  They each were given a medical marijuana recommendation.  When one of the agents disputed the amount he was charged, Cettei settled the amount.  The agents were then told they could buy marijuana upstairs at a dispensary also owned Cettei by Cardillo.

Cardillo and Cettei were then prosecuted for violating Business and Professions Code § 2052 for practicing medicine without a license, a felony.  Cardillo and Cettei moved to dismiss the charge because neither treated any patients and merely provided management services.  The trial court in the downtown Los Angeles Clara Shortridge Foltz courthouse dismissed the action.

The District Attorney then filed a writ of mandate, challenging the trial court’s ruling to the Second Appellate District.

The Second Appellate District reversed the trial court.  It noted that the important language of Business and Professions section 2052 at issue here was “operators” and such meant a layperson may not operate a facility.  The trial judge interpreted “operates” as meaning to perform surgery, such as removing a kidney or conducting an appendectomy.

The appellate court noted, in agreement with the District Attorney’s writ, that section 2052 makes it illegal for an unlicensed person to “practice… any system or mode of treating the sick or afflicted,” which would include “the operation of medical clinics to treat sick people by exclusively prescribing marijuana and selling it to them.”

Turning to the facts and evidence presented at the preliminary hearing, the appellate court noted that Cardillo and Cettie employed licensed physicians to issue recommendations for medical marijuana, set the physician’s hours, solicited and scheduled patients, collected fees from the patients, and paid the physicians a percentage of the fees. “In short, defendant’s set up a system or mode for treating the sick or afflicted in violation of section 2052.         

The appellate court directed the trial court to vacate its order granting defendant’s motion to dismiss.  

This ruling seems to dramatically lower the standard for prosecution of medical marijuana clinics.  However, Cardillo and Cetti certainly still may appeal the ruling to the California Supreme Court, as the broad interpretation given to “operate” within the scope of 2052 is arguably beyond the legislative intent, especially in the medical context.

For more information about sales of marijuana, click on the following articles:
  1. Federal Conviction of Importing Marijuana for Sales Overturned for Improper Use of Rap Sheet
  2. Warrantless Search of FedEx Package Containing Marijuana Held Improper and Case Is Dismissed
  3. Strong Marijuana Smell Does Not Justify Warrantless Search of Hotel Room
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