Toczauer v. State Board of Registration

Opinion

COBEY, Acting P. J.

Tibor Ivan Toczauer appeals from a judgment denying him a writ of mandate, pursuant to Code of Civil Procedure section 1094.5, that would have set aside the order of the State Board of Registration for Professional Engineers refusing him registration as an industrial engineer under Business and Professions Code section 6767.5, the grandfather provision.

Appellant’s principal contentions

1

are that the trial court erred in not applying its independent judgment and that, in any event, the findings of the board are not supported by substantial evidence.

Under

Bixby

v.

Pierno, 4

Cal.3d 130, 144 [93 Cal.Rptr. 234, 481 P.2d 242], the independent judgment type of judicial review is required only when the administrative decision affects substantially a fundamental right vested in an individual. The threshold issue in this case is whether appellant by reason of his prior engineering experience possessed such a

vested

right.

2

In this connection appellant claims that since he was a registered electrical engineer

3

and a practicing utilities engineer prior to his application for registration as an industrial engineer, his right to such registration vested in him by reason of the aforementioned grandfather provision.

We do not agree. Under

Bixby, supra,

the necessary right is vested if it is possessed or acquired, as opposed to being sought, Appellant has never possessed or acquired registration as an industrial engineer. This is what he has been seeking in the proceedings before us. All that the grandfather provision (§ 6767.5)

4

gave him was the right to at

[1070]