Nelson Valley Building Co. v. Morrisey

VAN DYKE, P. J.

This proceeding in mandate was brought to review a final administrative decision of the Contractors’ State License Board, whereby the contractor’s license of petitioner Nelson Valley Building Company, a corporation, was revoked. The trial court entered its judgment upholding the action of the license board and denying the writ sought by petitioner. From that judgment this appeal is taken.

The following facts appear in the record: The appellant Daniel Nelson, Sr., who, as managing employee of petitioner, applied for petitioner’s license, had joined his father in the contracting business in Oakland in 1937. He has been engaged in that business ever since. In 1941 he applied for and obtained a contractor’s license under which he operated until 1949 when he caused to be formed a family corporation to engage in the same business. That corporation is petitioner herein. As managing employee thereof he applied for and obtained a license for petitioner and petitioner has operated thereunder for some time. Proceedings were brought to revoke the license upon the ground that petitioner had been guilty of violating section 7112 of the Business and Professions Code which provides:

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Misrepresentation of a material fact by an applicant in obtaining a license constitutes a cause for disciplinary action. ’ ’

It was alleged that in its application for its license and in response to inquiries concerning the “Personnel of Applicant”

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a false answer had been given to the question as to whether any member of said personnel had ever been convicted of a felony. It appears from the record without conflict that two members of the personnel of petitioner whose names were listed as such in said application had in fact been convicted of felonies; that Daniel Nelson, Sr., had been convicted on May 17, 1933, of the crime of issuing checks without sufficient funds and that he had served a term under said conviction at San Quentin; that another member of the personnel of petitioner, one Howard Edward Cavannah had been convicted of a felony. Cavannah had never been an officer of petitioner. It appears also that Mr. Nelson during the hearing before the administrative agency admitted his conviction. He testified to the effect that he had in fact been innocent of any criminal intent; that the checks he issued had not been honored because expected deposits to his credit had not been made. He asserted that he had been induced by the prosecuting attorney to plead guilty upon a false promise of probation and upon advice that he was being charged with misdemeanors only. He said that when he first obtained his own contractor’s license he had disclosed these matters to a departmental representative who assured him they were immaterial insofar as obtaining his own license was concerned. The trial court, after a hearing based solely upon the administrative’s agency’s record, found: That when Mr. Nelson applied for petitioner’s contractor’s license he stated on the application that no person listed “in the personnel of applicant” had ever been convicted of a felony; that this statement was false as above related; that the falsity was known to Nelson; that the misrepresentation was material “in that had the Registrar of Contractors known of the falsity of the said statement at the time the application of Petitioner Corporation was filed, the said license would not have been issued to Petitioner Corporation with Daniel Nelson, Sr., as Responsible Managing Employee. ’ ’ Based upon these findings, the trial court entered its judgment discharging the alternative writ which it had issued and denying a final writ of mandate.