Hemphill v. Contractors' State License Board

VALLEE, J. Appeal by petitioner, Raymond M. Hemp-hill, from a judgment denying a writ of mandate to compel the Contractors’ State License Board to restore petitioner’s contractor’s license.

Since November 1953 petitioner has been licensed by the board as a general building contractor. On May 24, 1956, an accusation was filed by an investigator of the board wherein Hemphill was charged with having improperly diverted funds received under the terms of a written contract for the construction of a single family residence and garage; departing from plans and specifications in seven instances to the prejudice of the owners, Robert H. and Florence Rosenberg; fail[341]ing to complete construction for the price stated in the contract; and presenting false statements to Mr. Rosenberg for labor and materials in violation of sections 7108, 7109, 7113 and 7116 of the Business and Professions Code.

A hearing was conducted by a hearing officer, after which he found that Hemphill had violated section 71161 in that he breached his fiduciary duty to the owner with the intent of making a secret and undisclosed profit by submitting false statements for materials and services rendered and by permitting subcontractors to wilfully deviate from the plans and specifications to the material prejudice of the owner. The hearing officer recommended revocation of Hemphill’s license and his recommendation was adopted by the board.

It was stipulated that at all times mentioned in the accusation Hemphill was acting as and in the capacity of a contractor under the provisions of chapter 9, division 3, of the Business and Professions Code.

Hemphill petitioned the superior court for a writ of mandate. The court found that the decision and order of the board are supported by the weight of the evidence. Judgment followed denying the writ. Hemphill appeals.

In his brief Hemphill concedes he was acting as a contractor in his relationship with the Rosenbergs. As pointed out, he so stipulated before the hearing officer and the latter so found. Hemphill takes the inconsistent position that he might be exempt from disciplinary proceedings on the theory he acted as an employee of the Rosenbergs rather than as a contractor, and therefore the board was without jurisdiction to discipline him. (See Bus. & Prof. Code, § 7053.) In view of the stipulation, the point is without merit.