Hall v. Bureau of Employment Agencies

• Decision Date: 07 October 1976
• Citation: 64 Cal.App.3d 482,138 Cal.Rptr. 725
• Court: California Court of Appeals Court of Appeals
• Parties: Willis B. HALL, Plaintiff and Appellant, v. BUREAU OF EMPLOYMENT AGENCIES, Defendant and Respondent. Civ. 14460.

Page 725

138 Cal.Rptr. 725

64 Cal.App.3d 482

Willis B. HALL, Plaintiff and Appellant, v. BUREAU OF EMPLOYMENT AGENCIES, Defendant and Respondent.

Civ. 14460.

Court of Appeal, Fourth District, Division 1, California.

Oct. 7, 1976.

As Modified Nov. 12, 1976.

Hearing Denied Dec. 2, 1976.

Certiorari Denied May 16, 1977. See 97 S.Ct. 2187.

Willis B. Hall, in pro. per.

Evelle J. Younger, Atty. Gen., and Earl R. Plowman, Deputy Atty. Gen., for defendant and respondent.

WHELAN, Associate Justice (Retired Associate Justice of the Court of Appeal, sitting under assignment by the Chairman of the Judicial Council.)

This appeal is by Willis B. Hall from a judgment denying his petition for mandate directed to the Bureau of Employment Agencies (Bureau) which is within the Department of Consumer Affairs of the State of California and is charged with the licensing and regulation of employment agencies.

Mr. Hall is a licensee of the Bureau and has been since 1968. His headquarters is in the city of San Diego.

In 1973 and 1974, a series of four accusations was filed by Bureau against Mr. Hall charging him with certain breaches of professional conduct. Those accusations were heard in November 1973 and July 1974 and resulted in findings that Mr. Hall, in each of the four cases, conducted his relations with those for whom he acted as agent in a manner inconsistent with his duties as an agent.

Based upon its findings of fact, ¹ Bureau determined Mr. Hall had violated specific provisions of the Business and Professions Code:

'As to Count I, (Mr. Hall) violated Section 9993(a) of the Business and Professions Code, but not Section 9993(i) thereof;

'As to Count II, (Mr. Hall) violated Section 9993(h) of said Code;

'As to Count III, (Mr. Hall) violated Section 9993(a) of said Code, in conjunction with Section 2875(c)(3) of Title 16 of the California Administrative Code, and Section 9993(c) of the Business and Professions Code, but not otherwise;

'As to Count IV, (Mr. Hall) violated Section 9993(a) of the Business and Professions Code in conjunction with Section 2857(c)(3) of Title 16 of the California Administrative Code, and Section 9993(g) of the Business and Professions Code.'

Bureau concluded thereby grounds existed for suspension or revocation of Mr. Hall's license, and ordered a 20-day suspension as to each of the four counts, operation of the order to be suspended as to 15 days on each count, on condition Mr. Hall be on probation for one year and not exercise any privilege under his license for a period of 20 days.

The trial court in the proceeding for mandate applied the independent judgment test to the evidence presented to the hearing officer in the disciplinary proceeding and denied the petition for mandate.

Mr. Hall contends (1) that the term 'unprofessional conduct' as used in the Employment Agency Act is unconstitutionally vague; (2) that the evidence is insufficient to support the findings of the hearing officer and the decision of the trial court; and (3) that in the Rowray case Bureau was without jurisdiction to determine Rowray was entitled to a refund.

Mr. Hall contends the term 'unprofessional conduct' is unconstitutionally vague as a basis for discipline of an employment agency as provided for under Business and Professions Code section 9993(a), which reads:

'Acts or omissions constituting grounds for disciplinary action by the bureau shall include, but shall not be limited to:

'(a) Engaging in unprofessional conduct.'

Mr. Hall's contention is the cited statute, even read in conjunction with section 2857(c)(3) of Title 16 of the California Administrative Code, fails to give adequate notice of what conduct is prohibited. Section 2857(c)(3) provides in part:

'Conduct which shall be deemed unprofessional includes, but is not limited to, conduct which fails to conform to the following standards of ethical practice:

'. . .t w

'(c) Service charges and collections.

'. . .rvi

'(3) Account collection methods shall conform to ethical business standards.'

That contention is confined to counts one, three and four.

Statutes, regardless whether criminal or civil in nature, must be sufficiently clear as to provide adequate notice of the prohibited conduct as well as to establish a standard of conduct which can be uniformly interpreted by the judiciary and administrative agencies (Morrison v. State Board of Education, 1 Cal.3d 214, 231, 82 Cal.Rptr. 175, 461 P.2d 375).

In McMurtry v. State Board of Medical Examiners, 180 Cal.App.2d 760, 766, 4 Cal.Rptr. 910, 913, the court commented:

'It is well settled that 'a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' (Citations.) This principle applies not only to statutes of a penal nature but also to those prescribing a standard of conduct which is the subject of administrative regulation. (Citations.)'

In Morrison v. State Board of Education, supra, 1 Cal.3d 214, 220, 82 Cal.Rptr. 175, 179, 461 P.2d 375, 379, the court commented, since the Legislature has employed general terms like 'unprofessional conduct' in the authorization of disciplinary action against holders of a variety of licenses and certificates, it has not attempted to explicitly define the terms, but rather:

'. . . have given (them) . . . more precise meaning by referring in each case to the particular profession . . . to which they were applicable.'

Since the Legislature hardly had intended that the same standards of conduct apply to all professions regardless of their varying duties, responsibilities and relationship to the public, the court concluded the characterization of conduct in the particular case must relate to the licensee's fitness to practice his profession. The court, in Morrison, stated at page 239, 82 Cal.Rptr. at page 194, 461 P.2d at page 394:

"The right to practice one's profession is sufficiently precious to surround it with a panoply of legal protection' (citation) and terms such as . . . 'unprofessional,' . . . constitute only lingual abstractions until applied to a specific occupation and given content by reference to fitness for the performance of that vocation.'

Business and Professions Code section 9993(a), construed in conjunction with section 2857 of Title 16 of the California Administrative Code, relates the section 9993(a) disciplinary ground of 'engaging in unprofessional conduct' to a rather complete, substantive statement of the required standards of ethical practice relating to the fitness for the performance of a licensed employment agency.

California Administrative Code section 2857 of Title 16 reads in its entirety:

'Conduct which shall be deemed unprofessional includes, but is not limited to, conduct which fails to conform to the following standards of ethical practice:

'(a) Relations With Employers.

'(1) A candidate's personal record, employment record, qualifications, and salary requirements shall be stated by the agency to the employer as accurately and fully as possible.

'(2) Candidates shall be referred to the employer for interview only with the prior authorization of the employer, which may be given verbally.

'(3) Confidential information relating to the business policy of employers which is imparted as an aid to the effective handling of their job requirements, shall be treated accordingly.

'(4) Letters, bulletines and resumes concerning applicants that are presented to employers shall represent bona fide candidates.

'(b) Advertising.

'(1) Advertising shall be factual.

'(2) Positions listed in the 'Help Wanted' columns of newspapers or other media shall refer to bona fide openings available at the time copy is given to these publications for insertion.

'(c) Service Charges and Collections.

'(1) No applicant or employer shall be held obligated for a fee until an offer and acceptance have been made between employer and applicant as a result of the agency's efforts.

'(2) Adjustments and refunds of fees shall be made promptly.

'(3) Account collection methods shall conform to ethical business standards.'

Here, section 2857 provides sufficient notice to employment agencies of what kind of conduct is regulated and within the prohibition of the disciplinary ground of 'unprofessional conduct,' which, if granted standing by itself, would be ambiguous. Further, in time, on a case-by-case analysis by the judiciary, as well as the administrative agencies, those standards provided in section 2857 will become more definitive and substantive.

In regard to Mr. Hall's contention that Business and Professions Code section 9993(a), construed in conjunction with California Administrative Code, Title 16, section 2857, is unconstitutionally vague, he argues that the expository statement of section 2857(c)(3) requiring that '(a)ccount collection methods shall conform to ethical business standards,' is of little help in determining what behavior in legally proper. Thus, the issue is whether the agency's promulgated Administrative Code section 2857(c)(3) is in itself sufficient notice of what collection practices are prohibited.

For consideration, the court in McMurtry v. State Board of Medical Examiners, supra, 180 Cal.App.2d 760, 767, 4 Cal.Rptr. 910, 914, stated that:

'(I)f the words used may be made reasonably certain by reference to the common law, to the legislative history of the statute involved, or to the purpose of that statute, the legislation will be sustained (citations); and a standard fixed by language which is reasonably certain, judged by the foregoing rules, meets the test of due process 'notwithstanding an element of degree in the definition as to which estimates might differ.' (Citations.)'

Further, even though all statutes regardless of nature must be sufficiently clear to provide fair notice of prohibited conduct:

"Reasonable certainty is all that is...