Brandt v. Fox

• Decision Date: 21 March 1979
• Citation: 90 Cal.App.3d 737,153 Cal.Rptr. 683
• Court: California Court of Appeals Court of Appeals
• Parties: John L. BRANDT, Plaintiff and Appellant, v. David H. FOX, Commissioner of the Department of Real Estate, Defendant and Respondent. Civ. 43786.

Page 683

153 Cal.Rptr. 683

90 Cal.App.3d 737

John L. BRANDT, Plaintiff and Appellant, v. David H. FOX, Commissioner of the Department of Real Estate, Defendant and Respondent.

Civ. 43786.

Court of Appeal, First District, Division 2, California.

March 21, 1979.

James R. Madison, Norman C. Hile, Orrick, Herrington, Rowley & Sutcliffe, San Francisco, for plaintiff and appellant.

George Deukmejian, Atty. Gen., Charles X. Delgado, Deputy Atty. Gen., San Francisco, for defendant and respondent.

ROUSE, Associate Justice.

Plaintiff John Brandt appeals from a judgment denying his petition for a peremptory writ of mandate to compel defendant David Fox, Commissioner of the Department of Real Estate (hereafter Commissioner) to set aside his decision denying plaintiff a license to act as a real estate salesman. The principal question raised by this appeal is whether denial of plaintiff's application for such a license can be based solely upon his having suffered a conviction in 1974 for distribution of a controlled substance.

Plaintiff filed an application for a real estate salesman's license on October 29, 1976. On January 27, 1977, the Commissioner instituted proceedings for the purpose of inquiring into plaintiff's qualifications for such a license and, in particular, whether plaintiff should be denied a license due to his having sustained a 1974 conviction for distribution of cocaine.

A hearing was held before George Coan, an administrative law judge, who rendered a proposed decision finding that in October 1974, plaintiff had been convicted of a felony involving moral turpitude. He found that the circumstances leading to such conviction were that, while working as a bartender, plaintiff was asked by a customer if he would introduce him to another individual in the bar. Plaintiff, who was "vaguely aware" that narcotics might be involved, arranged the introduction, which took place at a house which was under observation by federal narcotics officers. Plaintiff was to receive $500 for making the introduction, which resulted in a sale of over 100 grams of a substance containing cocaine. However, plaintiff did not personally carry the contraband nor did he take part in the negotiations for its sale. Plaintiff pleaded guilty to the federal offense of distribution of a controlled substance, received a suspended sentence, and was fined $1,500 and placed on probation for a period of three years.

Judge Coan found that plaintiff had led an exemplary life prior to his arrest; that he was married and had a 15-month-old son; that he was highly regarded by his family, friends, employers and coworkers; and that he had received an honorable discharge from the United States Army, where he served in the Green Berets and spent nine months in Viet Nam. Plaintiff was then in full compliance with the terms of his probation. ^{1 1} His probation officer had found him extremely cooperative and was satisfied that his only involvement with drugs was the single event which had resulted in his arrest. Judge Coan observed in his findings that plaintiff was extremely contrite and remorseful concerning the conduct which had led to his arrest and was making regular monthly payments, in an amount specified by his probation officer, toward the $1,500 fine.

Judge Coan determined that since defendant's conviction was for a felony involving moral turpitude, such conviction furnished grounds for denial of a real estate license under section 10177, subdivision (b) of the Business and Professions Code. ² He further found that plaintiff's conviction was for an offense which was substantially related to the qualifications for real estate licensees, thus justifying denial of plaintiff's application under section 480, subdivision (a). However, Judge Coan also found that plaintiff had established that he was now sufficiently rehabilitated and that it would not be against the public interest to issue him a restricted real estate salesman's license. Accordingly, Judge Coan recommended that plaintiff be issued a restricted real estate salesman's license subject to certain specified conditions; further, that he should be ineligible for the issuance of an unrestricted license for a period of three years.

The Commissioner rejected Judge Coan's proposed decision and, in accordance with section 11517, subdivision (c), of the Government Code, elected to decide the case upon the transcript of the administrative hearing and any written arguments which might be submitted.

On September 15, 1977, the Commissioner rendered a decision which incorporated Judge Coan's factual findings with the exception of those bearing upon plaintiff's generally exemplary life and the fact that he was now sufficiently rehabilitated. The Commissioner determined that plaintiff's conviction of a felony involving moral turpitude justified denial of his application for a real estate salesman's license under sections 10177, subdivision (b), and 480, subdivision (a). The Commissioner further determined that while plaintiff had demonstrated some degree of rehabilitation, the showing was not sufficient to justify the issuance of either a plenary or restricted real estate salesman's license at that time. Plaintiff's application for a license was therefore denied.

Plaintiff commenced this action on October 21, 1977, seeking a writ of mandate to compel the Commissioner to grant him a real estate license. In his petition, plaintiff sought a judicial declaration that the Department of Real Estate had followed invalid criteria in denying his application for a license; also, he sought an injunction prohibiting the Commissioner from considering ex parte communications from members of his staff in deciding whether to grant plaintiff a license.

A hearing was held in the trial court and on December 16, 1977, the court filed its order denying plaintiff's petition for a writ of mandate. In rendering its decision, the court determined that the administrative record contained substantial evidence to support the findings and decision of the Commissioner; that said decision was within the sound discretion of the Commissioner and that the discretion of the court could not be substituted for the discretion of the Commissioner.

On December 23, 1977, plaintiff filed a request for findings of fact and conclusions of law. The Commissioner opposed such request, asserting that findings and conclusions were not required.

On December 29, 1977, the court rendered a judgment denying plaintiff a peremptory writ of mandate and determining that he was entitled to take nothing by his petition. An amended judgment, filed on January 6, 1978, specified that plaintiff's causes of action for declaratory and injunctive relief were dismissed. Plaintiff filed a timely notice of appeal from the amended judgment.

Plaintiff's first contention on appeal is that the Commissioner and the trial court both erred in determining that plaintiff's conviction was substantially related to the qualifications, duties or functions of a real estate salesman. He also asserts that the Commissioner and the court erred as a matter of law in determining that plaintiff's showing of rehabilitation was insufficient.

Section 10177, subdivision (b), authorizes the denial, suspension or revocation of a real estate license when an applicant or licensee has been convicted of "a felony or a crime involving moral turpitude . . . ." Section 480, subdivision (a), provides, in pertinent part, that a board may deny a license required by the Business and Professions Code when an applicant has been convicted of a crime. ³ However, the final paragraph of subdivision (a) of section 480 provides that "A board may deny a license pursuant to this subdivision only if the crime or act is substantially related to the qualifications, functions or duties of the business or profession for which application is made."

Section 475 provides, in pertinent part, that "(a) Notwithstanding any other provisions of this code, the provisions of this division shall govern the denial of licenses on the grounds of: . . . (2) Conviction of a crime; . . . (c) A license shall not be denied . . . on the grounds of a lack of good moral character or any similar ground relating to an applicant's character, reputation, personality, or habits."

Plaintiff contends that the crime of distribution of a controlled substance does not bear any reasonable relationship to the qualifications, functions or duties of a real estate salesman and that the denial of his application for a license was therefore improper under the above-quoted language of subdivision (a). He also asserts that, since conviction of any crime necessarily reflects upon one's moral character, the denial of his application violated subdivision (c) of section 475.

Plaintiff's reliance upon subdivision (c) of section 475 is misplaced. The provision in question precludes denial of a license "on the grounds of a lack of good moral character or any similar ground relating to an applicant's character, reputation, personality, or habits." Since criminal convictions are separately dealt with in subdivision (a)(2) of section 475, it is apparent that subdivision (c) was intended to apply to evidence of bad moral character Other than criminal convictions. Any other construction of subdivision (c) would effectively nullify the provisions of subdivision (a)(2) of section 475 and thereby run afoul of the cardinal rule that a court is prohibited from a construction which will omit a portion of a statute; also, that a court is required to construe a statute so as to effectuate all of its provisions. (Mercer v. Perez (1968) 68 Cal.2d 104, 112, 117, 65 Cal.Rptr. 315, 436 P.2d 315; County of Sacramento v. Superior Court (1971) 20 Cal.App.3d 469, 472, 97 Cal.Rptr. 771.)

The language of subdivision (a) of section 480 is in no sense ambiguous. It clearly prohibits denial of a license based upon a criminal conviction or other wrongful act which is not...