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 Vietnam. Plaintiff was then in full compliance with the terms of his probation.
Judge Coan determined that since plaintiff'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.
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.
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.
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."
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 substantially related to the qualifications, functions or duties of a particular profession. The California courts have long adhered to such a policy.
In Morrison v. State Board of Education (1969) 1 Cal.3d 214 [82 Cal.Rptr. 175, 461 P.2d 375], the petitioner's life diplomas to teach in public secondary schools were revoked after he had participated with a fellow teacher in a noncriminal physical relationship of a homosexual nature. The revocation was based upon provisions of the Education Code authorizing such a sanction for immoral or unprofessional conduct or acts involving moral turpitude. (P. 220.) The California Supreme Court held that the Board of Education could not "abstractly characterize" the petitioner's conduct as immoral, unprofessional or involving moral turpitude in the absence of evidence that such conduct rendered him unfit to teach. (P. 229.) The court held that in making such a determination, the board should consider such matters as "the likelihood that the conduct may have adversely affected students or fellow teachers, the degree of such adversity anticipated, the proximity or remoteness in time of the conduct, the type of teaching certificate held by the party involved, the extenuating or aggravating circumstances, if any, surrounding the conduct, the praiseworthiness or blameworthiness of the motives resulting in the conduct, the likelihood of the recurrence of the questioned conduct, and the extent to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of the teacher involved or other teachers." (P. 229.)
In Comings v. State Bd. of Education (1972) 23 Cal.App.3d 94 [100 Cal.Rptr. 73, 47 A.L.R.3d 742], the Morrison reasoning was applied in a situation where two teachers, Comings and Jones, each had their teaching credentials revoked, in separate proceedings, after they were convicted of possession of marijuana. The appellate court concluded that the revocation of Comings' credentials was unsupported by a sufficient showing of his unfitness to teach and, like the Morrison situation, was improperly based upon an abstract characterization of his conduct as immoral, unprofessional and involving moral turpitude, without any evidence of extenuating or aggravating circumstances, likelihood of recurrence, motivation or the other factors enumerated by the Morrison court. (Pp. 103-104.) As to the other petitioner, Jones, the court reached a contrary conclusion and held that his credentials were properly revoked based upon testimony that he had been rendered unfit to teach due to the notoriety of his involvement with marijuana and the resulting adverse effect upon the attitude of students and parents in the community. (Pp. 105-106.)
Vielehr v. State Personnel Bd. (1973) 32 Cal.App.3d 187 [107 Cal.Rptr. 852], involved the dismissal of a tax representative trainee from state employment after he pleaded guilty to possession of marijuana. The State Personnel Board had based its action upon a Government Code section authorizing dismissal for a failure of good behavior which was of such a nature that it caused discredit to the employee's agency or department. (P. 191.) The board had received no evidence other than the fact of the criminal conviction. In accordance with the Morrison reasoning, the appellate court concluded that possession of marijuana did not, in itself, establish that the appellant had caused discredit to the agency for which he worked and that proof should have been presented establishing that the appellant's failure of good behavior had caused harm to public service. (Pp. 194-195.) The court suggested that such proof should include extenuating or aggravating circumstances, the likelihood of recurrence,
Finally, in Cartwright v. Board of Chiropractic Examiners (1976) 16 Cal.3d 762 [129 Cal.Rptr. 462, 548 P.2d 1134], the California Supreme Court held, in a four-to-three decision, that revocation of the plaintiff's license to practice as a chiropractor could not properly be based upon a misdemeanor conviction of keeping or willfully residing in a house of ill fame resorted to for the purposes of prostitution or lewdness. Although there was evidence at the administrative hearing which strongly suggested that the plaintiff was intentionally lending a false aura of respectability to a house of prostitution by posting his license at said premises and purporting to practice his profession there (see pp. 774-776), the majority of the court held that the question whether a conviction involved moral turpitude could not be determined in the abstract, but depended upon whether the conviction demonstrated unfitness to practice a profession. (P. 767.) Citing Morrison, the court also observed that the state's power to regulate a profession could not be used arbitrarily to penalize conduct having no demonstrable bearing upon fitness for its practice. (P. 767.) The court concluded that since the offense of which the plaintiff had been convicted could have been committed without personal or entrepreneurial participation in illicit sexual activities and since such conviction could have been based merely upon personal residence unrelated to chiropractic practice and only peripherally related to prostitution, revocation of the plaintiff's license was unwarranted. (P. 768.)
In summary, the evidence shows that on one isolated occasion, relatively remote in time, plaintiff was peripherally involved in an illegal drug transaction which, in view of his character, his remorseful attitude and his otherwise exemplary conduct, was unlikely to recur. Under the authorities previously discussed, it appears that, only by indulging in the sort of abstract characterization which has been condemned by the California courts, can the connection between this plaintiff's one instance of misbehavior and his qualifications to act as a real estate salesman be established. The Attorney General's argument that, having once violated the law to make a quick profit, plaintiff might be tempted to engage in overreaching and dishonest conduct as a real estate salesman, is not convincing. While we do not condone the conduct which resulted in plaintiff's conviction, yet it did not involve fraud or dishonesty in any fundamental sense. Given the isolated nature of the incident, the fact that it occurred over four years ago, the lack of any evidence that plaintiff's subsequent conduct has been other than exemplary, or that such conduct bore a substantial relationship to the qualifications, functions or duties of, or otherwise rendered him unfit to engage in, the activity for which he sought a license, we must conclude that the Commissioner's decision to deny plaintiff's application was not supported by substantial evidence.
The Attorney General contends that, even if the evidence was insufficient to establish that plaintiff's application for a license was
We find the Attorney General's position unpersuasive. All three cases upon which he relies were decided prior to the 1974 legislative revisions to division 1.5 (§ 475 et seq.). In Loder v. Municipal Court (1976) 17 Cal.3d 859, at page 874 [132 Cal.Rptr. 464, 553 P.2d 624], the California Supreme Court pointed out that "Chapter 1321 of the Statutes of 1974 substantially rewrote the provisions of law governing denial, suspension, and revocation of ... [business or professional] licenses. (Bus. & Prof. Code, div. 1.5.) ... [A] conviction can no longer support a denial or revocation of a license unless the crime is `substantially related to the qualifications, functions or duties of the business or profession' in question (Bus. & Prof. Code, §§ 480, subd. (a), & 490.)"
We have no doubt that the Legislature intended that this prohibition prevail over those sections of the Business and Professions Code which prescribe licensing requirements for a particular business or profession. Section 475, subdivision (a), states that "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...." (Italics added.) Section 480, subdivision (a), specifies the grounds for denial of a license and states in subdivision (a)(3) that "The board may deny a license pursuant to this subdivision only if the crime ... is substantially related to the qualifications, functions or duties of the business or profession for which application is made."
In view of the result which necessarily follows from our determination of this matter, we find it unnecessary to deal with other issues raised by plaintiff in his appeal.
The judgment is reversed and the matter remanded to the trial court with directions to issue a peremptory writ of mandate.
Taylor, P.J., and Kane, J., concurred.