Penaat v. Zeiss

NOURSE, P. J.

Plaintiff sued under section 1094.5 of the Code of Civil Procedure to review by mandate the proceedings of the Contractors’ State License Board suspending for one year his license as a contractor. In the superior court after a full hearing the evidence was found sufficient and the ruling of the license board was sustained. The accusations upon which the proceedings were founded charged a violation of three separate sections of the Business and Professions Code. The three accusations were consolidated for hearing and resulted in one judgment, hence one appeal covering all three accusations. The appeal is taken on the clerk’s transcript and a narrative statement which states that the cause was heard in the superior court on the transcript of evidence heard before the reviewing board.

The accusations separately charged violations of sections 7116, 7114 and 7119 of the Business and Professions Code and the appeal attacks each on identical grounds: that the sections are unconstitutional, that the accusations are insufficient, and that the evidence does not support the findings of guilt.

Reserving a statement of the facts until later we may dispose of the attacks upon the form of the accusations. Section 7116 of the Business and Professions Code (hereinafter called the code) provides: “The doing of any wilful or fraudulent act by

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the licensee as a contractor in consequence of which another is substantially injured constitutes a cause for disciplinary action. ’ ’ During the hearing before the hearing officer counsel for the board asked leave to amend the accusation charging fraud in the collection of sums from the owners in excess of the ceiling prices fixed by government authority. The request was granted and the accusations ordered “deemed to have been amended” to that extent.

The appellant argues that section 7116 is unconstitutional because it makes any act which is “wilful or fraudulent” a subject of disciplinary action and that, since it is penal in its nature, it does not define the “crime” with sufficient particularity. The premise is wrong. This is not a penal statute and the rules covering due process in criminal proceedings do not apply.

(Webster