Capen

BLEASE, Acting P.J.

The plaintiff, Dr. Daniel Capen, a licensed physician, is building a surgical clinic that he will wholly own and operate, in which non-owner, non-lessee, physicians will practice. He was informed by the Department of Health Services (Department) that a license for the clinic was required because it would be used by physicians who do not share in its ownership or operation in violation of Health and Safety Code section 1204, subdivision (b)(1), and does not come within the exemption of Health and Safety Code section 1206, subdivision (a). [1]

Section 1204, subdivision (b)(1) defines a surgical clinic subject to licensing as a "clinic that is not part of a hospital and that provides ambulatory surgical care for patients who remain less than 24 hours." It excludes from the definition a clinic "owned or leased and operated as a clinic or office by one or more physicians ... in individual or group practice..." Section 1206, subdivision (a) exempts from licensing a clinic "owned or leased and operated ... by one or more [physicians] and used as an office for the practice of their profession ..."

Dr. Capen brought this declaratory relief action claiming that…