HUGHES v. BOARD OF ARCHITECTURAL EXAMINERS

Reset A A Font size: Print

Court of Appeal, Third District, California.

Charles Scott HUGHES, Plaintiff and Appellant, v. BOARD OF ARCHITECTURAL EXAMINERS, Defendant and Appellant.

No. C019165.

Decided: August 23, 1996

Smiland & Khachigian, William M. Smiland and Kenneth L. Khachigian, Los Angeles, for Plaintiff and Appellant. Daniel E. Lungren, Attorney General, Joel S. Primes and Steven M. Kahn, Deputy Attorneys General, for Defendant and Appellant.

The question on appeal is whether, under provisions of the Architects Practice Act (Bus. & Prof. Code, § 5500 et seq.), an architect's license may be revoked for prelicensure wrongdoing.   We hold that it may not.   Although a license may be denied for prelicensure misconduct, once a license has been issued it can be revoked only for misconduct occurring after licensure or for fraud or misrepresentation in obtaining the license.

Defendant Board of Architectural Examiners (the Board) revoked the architect's license of plaintiff Charles Scott Hughes for violations of Business and Professions Code sections 5583 and 5584, relating to fraud, deceit, negligence and willful misconduct.  (All subsequent statutory references are to the Business and Professions Code unless otherwise indicated.)   The complained-of acts occurred in other states before plaintiff was licensed in California.   Plaintiff filed a petition for writ of administrative mandamus in superior court seeking to overturn the Board's decision.   Although the trial court found the issue to be a “close call,” it ultimately denied the petition.   Plaintiff challenges that ruling on appeal.

In addition to challenging the Board's authority to impose discipline for prelicensure conduct, plaintiff also asserts the discipline imposed was too severe and that the Board lacked power to reverse its earlier determination granting the license.   The Board has filed a protective cross-appeal.   We shall reverse the judgment.

OVERVIEW OF LICENSING STATUTES

In order to place plaintiff's claims in perspective, we provide an overview of the architectural licensing statutes as found in the Architects Practice Act (the Act) (§ 5500 et seq.).   The Act is divided into seven different articles:  article 1, general provisions (§§ 5500–5502);  article 2, administration (§§ 5510–5528);  article 3, application of chapter (§§ 5535–5539);  article 4, issuance of certificates (§§ 5550–5557);  article 5, disciplinary proceedings (§§ 5560–5590);  article 6, revenue (§§ 5600–5604);  and article 7, architectural corporations (§§ 5610–5610.7).

Under the Act, the Board is empowered to establish “the minimum professional qualifications and performance standards for the admission to and practice of the profession of architecture.” (§ 5510.1.) These standards are to be set “in the interest and for the protection of the public health, safety, and welfare.”  (Ibid.)

A candidate seeking licensure must file an application with the Board and take the prescribed examination. (§ 5550.)   An applicant must also furnish evidence of having completed eight years of training and educational experience in architectural work (§ 5552, subd. (b)), and must “[n]ot have committed acts or crimes constituting grounds for denial of a license under Section 480.”  (§ 5552, subd. (a).)  Section 480 in turn specifies the grounds on which the Board may deny a license, including the fact that the applicant has “[b]een convicted of a crime,” “[d]one any act involving dishonesty, fraud or deceit with the intent to substantially benefit himself or another, or substantially injure another,” or “[d]one any act which if done by a licentiate of the business or profession in question, would be grounds for suspension or revocation of license.” (§ 480, subds.(a)(1),(2) & (3);  see also § 5553.)   However, the Board may deny a license for these reasons “only if the crime or act is substantially related to the qualifications, functions or duties of the business or profession for which application is made.” (§ 480, subd. (a)(3).) 1  Thus, issuance of a license may be denied if evidence is received by the Board of “the commission or doing by the applicant of any act which, if committed or done by the holder of a license, would be grounds for the suspension or revocation of that license.” (§ 5553.)

The Board shall issue a license to practice architecture if the applicant's examination is satisfactory, no deception was involved in obtaining the license, and no charges of violations of the Act have been filed with the Board.  (§ 5551.)

The Board is also empowered to suspend or revoke the license of an architect who is guilty of, or commits any one of, the specified acts or omissions constituting grounds for disciplinary action.2 (§ 5560.)   Two of these specified grounds are outlined in sections 5583 and 5584.  Section 5583 provides:  “The fact that, in the practice of architecture, the holder of a license has been guilty of fraud or deceit constitutes a ground for disciplinary action.”  Section 5584 provides:  “The fact that, in the practice of architecture, the holder of a license has been guilty of negligence or willful misconduct constitutes a ground for disciplinary action.”

The “practice of architecture” is defined “as offering or performing, or being responsible for, professional services which require the skills of an architect in the planning of sites, and the design, in whole or in part, of buildings, or groups of buildings and structures.” (§ 5500.1, subd. (a).)  An architect is defined as “a person who is licensed to practice architecture in this state under the authority of this chapter.” (§ 5500.)

Section 5561 sets forth the statute of limitations for any disciplinary action:  all accusations must be filed with the Board “within five years after the board discovers, or through the use of reasonable diligence should have discovered, the act or omission alleged as the ground for disciplinary action, whichever occurs first, but not more than 10 years after the act or omission alleged as the ground for disciplinary action.” 3

With this framework in mind, we turn to the case before us.

FACTUAL AND PROCEDURAL BACKGROUND

From 1970 until 1975, plaintiff studied architecture at the University of Virginia and the Boston Architectural Center, but did not receive a degree.   He worked for several architectural firms and, in 1980, took and passed the written examinations for licensure in Washington, D.C.   However, because plaintiff never submitted his transcripts as required to complete the licensing process, he did not receive his architect's license.

In 1982, plaintiff opened his own architectural firm in Washington, D.C.   He performed work on residential projects that did not require licensure, and employed licensed architects for other projects.   However, eventually plaintiff himself did work on projects that required licensure, even though he was not licensed.

During this period of time, plaintiff also used, or caused to be used, the stamps of other architects on his own works.4

In 1986, plaintiff applied for membership in the American Institute of Architects (AIA).   Because licensure in at least one United States jurisdiction is required for membership, and plaintiff could not meet this requirement, plaintiff falsely stated that he had been registered in the District of Columbia since 1977 and included the registration certificate of another architect, substituting his name for the true name of the licensee.

In his resume, plaintiff falsely stated he was a graduate of the University of Virginia and was a registered architect in Maryland, Virginia, and the District of Columbia.

While plaintiff was working on an addition at the home of then-Vice-President Dan Quayle, it was discovered that plaintiff was not a licensed architect.   In 1989, the Commonwealth of Virginia brought criminal charges against plaintiff for fraudulent misrepresentation related to work plaintiff had done for Arlington County.   An agreement was reached in which imposition of sentence was suspended and plaintiff performed community service work and made restitution.   Upon successful completion of these conditions, the charges against plaintiff were dismissed in 1990 and the court entered an order of nolle prosequi.

Plaintiff decided to move to California and, in February 1990, applied to the Board to become licensed as an architect in this state.   In a letter accompanying his application, plaintiff stated that although he passed the licensing examination in the District of Columbia in 1980, he did not complete the licensing and was therefore seeking initial registration in California.

In his application, plaintiff listed the colleges he had attended and noted he did not receive a degree.   He listed all of his architectural experience and marked the box indicating he had not been licensed elsewhere to practice architecture.   The application also asked whether the applicant had ever been convicted by any court of an offense.   Plaintiff answered “no.”

In a supplemental letter to the Board dated March 8, 1990, plaintiff explained that while he passed all portions of the District of Columbia's licensing examination, he did not receive his architect's license because he did not submit a copy of his University of Virginia transcript as required.   Plaintiff stated that in 1983 he opened his own architectural firm and explained:

“The majority of services performed by me and/or my firm involved renovations of residential property (i.e., projects that did not require the services of a licensed architect).   I take pride in saying that my firm enjoyed some not-insignificant success.   Indeed, I was establishing a professional and personal reputation about which I was very proud when, in January 1989, my office became involved in civil litigation which called into question my professional licensing status.   I immediately informed the D.C. Board of Architects about the facts surrounding my non-licensure, and closed my office pending resolution of the matter.   Unfortunately, a great deal of publicity ensued, as I was designing an addition to the residence of the Vice President of the United States.

“As a result, investigations were instituted by the District of Columbia and the Commonwealth of Virginia.   To date, the District has taken no action against me.   In Virginia, I was charged with one count of misrepresentation to a governmental agency arising from architectural services I had performed for Arlington County.   Pursuant to my plea to that count, in November, 1989 the Court suspended imposition of sentence, placed me on probation for a period of two years, and requested restitution to the County of the amount paid for those architectural services ($11,000) and the performance of 200 hours of community service.   Incidentally, the public service which I performed consisted of providing design services to the Arlington Housing Corporation.

“I promptly met the conditions of my probation and, on February 22, 1990, the termination date of my probation was accelerated and all charges against me were dropped.   As a result, there are no charges pending against me nor will any other criminal charges be brought against me in Virginia.   For practical as well as legal purposes, I have no record.” 5

The Board issued an architect's license to plaintiff on September 10, 1990.

In May 1991, the Board received a letter from the National Council of Architectural Registration Boards (NCARB), stating that plaintiff had applied for NCARB certification.   The letter noted plaintiff's application “indicates that he was not educated in California, has not worked in California, has not lived in California, nor has he passed any registration exams in California, (all exams passed in Washington, D.C.).   Furthermore, the California registration certification form indicates that the board has no derogatory information on file for [plaintiff].”

The NCARB letter continued:  “It is [our] understanding that [plaintiff] had previously applied for registration as an architect in Virginia and Washington D.C. and was denied registration on the basis of character.   You may want to contact the Virginia and Washington D.C. Boards for further information on this matter.”

The Board began an investigation and obtained a copy of a letter that plaintiff had written to the District of Columbia licensing agency.   In that letter, plaintiff stated he could not explain why he did not respond to the earlier request for the University of Virginia transcript to complete the licensing requirements.   He noted that while he began his career working on projects which did not require licensure, he eventually did work for which he was not licensed.   Plaintiff admitted he “conducted [him]self inappropriately and dishonestly.”

Plaintiff then revealed the following incidents:

“In 1986, in an effort to expand my practice and to become a recognized member of the architectural profession, I submitted an application for membership in the American Institute of Architects (AIA).   As every member of the Board undoubtedly knows, in order to become a member of AIA, an applicant must submit a copy of his or her Certificate of Registration from the jurisdiction in which he or she is registered.   Obviously, I had no such Certificate.   Therefore, I am embarrassed to admit that I used a copy of another architect's certificate and replaced his name with mine.   Coincident with this conduct, I falsely stated on my resume that I was both a graduate of UVA and a registered architect in Maryland, Virginia and the District of Columbia.

“Architectural assignments requiring the services, and certification, of a lawfully registered architect presented themselves during this time period.   I realized that, not only was I capable of performing the required services, but that it was a professional challenge and potential boon to my career.   However, I also realized that, due to the scope of the work, it would or may require that a responsible architect stamp the final set of plans.   Obviously, no such stamp had been issued to me.   However, through both a former employee and a former colleague, two stamps belonging to others were located in my office.   The former employee had inadvertently packed the stamp of a colleague when she relocated from Virginia to D.C., and my former colleague left his stamp behind when our professional affiliation ceased.

“Obviously, I was very sensitive about using these stamps.   As noted earlier, the majority of our work did not need to be stamped.   Moreover, whenever possible, if a stamp or certification was required or requested, I would have a structural engineer review the plans and certify as to their accuracy.   However, the stamps were, or may have been, used by me or under the auspices of the office on limited occasions.” 6

In February 1992, the Board filed an accusation against plaintiff, charging him with violations of sections 490 and 5579 for making a false statement on his license application.7  This accusation charged that plaintiff's statement that he had never been convicted by a court of any offense was false, as evidenced by the Virginia proceedings in which plaintiff had entered a guilty plea.8  The accusation also charged that plaintiff had made another misrepresentation when he informed the Board in his March 8, 1990, letter that the charges against him had been dropped on February 22, 1990.

Several months later, a supplemental accusation was filed, alleging plaintiff's conviction also warranted the imposition of discipline under section 5577.   This statute provides in relevant part that “[t]he conviction of a crime substantially related to the qualifications, functions, and duties of an architect by the holder of a license constitutes a ground for disciplinary action.”

The supplemental accusation also alleged violations of sections 5583 and 5584 based on the misrepresentations plaintiff discussed in his letter to the District of Columbia licensing authority.   As noted, section 5583 provides:  “The fact that, in the practice of architecture, the holder of a license has been guilty of fraud or deceit constitutes a ground for disciplinary action.”  Section 5584 provides:  “The fact that, in the practice of architecture, the holder of a license has been guilty of negligence or willful misconduct constitutes a ground for disciplinary action.”

Specifically, the supplemental accusation alleged the following incidents as the basis for these charges:

“A. In or about 1986, [plaintiff], in applying for membership in the American Institute of Architects (AIA), obtained a copy of a certificate of registration of another architect, replaced his name with [plaintiff's] and submitted the false certificate to the AIA.

“B. In or about 1986, [plaintiff] falsely stated on his resume that he was a graduate of the University of Virginia and that he was a registered architect in Maryland, Virginia and the District of Columbia.   In [or] about 1986, in applying for membership in the AIA, [plaintiff] falsely stated that he was registered as an architect in the District of Columbia since 1977.

“C. Commencing in or about 1986, [plaintiff] used the stamps or certificates of other architects on plans which he had prepared.”

At the administrative hearing, plaintiff introduced evidence that the disposition of his case was not deemed a conviction under Virginia law, and thus, he argued, he made no misstatement on his license application.   Evidence also indicated that while the prosecutor and court apparently agreed to drop the prosecution in February 1990, a formal order to that effect was not entered until May.

Plaintiff's letter to the District of Columbia licensing board was introduced into evidence.   At the hearing, plaintiff admitted he altered another architect's certificate to support his AIA application, and had made misrepresentations as to his licensing status.   Despite plaintiff's admission in his letter to the D.C. board that architect stamps “were, or may have been used by [plaintiff] or under the auspices of the office on limited occasions,” plaintiff asserted at the hearing that only one such instance had occurred, and involved an office employee who “inadvertently submitted a set of plans stamped in her hand to the County of Arlington.”   Plaintiff stated he did not know that the plans “had gone out with an inappropriate nonapproved stamp.”

In arguments reiterated on appeal and discussed at length below, plaintiff asserted sections 5583 and 5584 could not be applied to prelicensure conduct.   In arguing that revocation of his license was an excessively severe punishment, plaintiff noted that the Board did not ask any questions requiring the disclosure of this information.

In its decision, the Board concluded that accusations relating to the prior conviction were without merit because under Virginia law, plaintiff had not suffered a prior conviction.   The Board further found that plaintiff's misstatement as to when the charges were dropped was a statement of error, not a knowing misrepresentation.

However, the Board concluded that plaintiff had practiced architecture without a license.   The Board also found that in his AIA application, plaintiff “falsely stated that he was registered to practice architecture in the District of Columbia since 1977 and included the certificate of registration of another architect, substituting [plaintiff's] name.”   The Board further found that “in or about 1986, [plaintiff] falsely stated on his resume that he was a graduate of the University of Virginia and a registered architect in Maryland, Virginia, and the District of Columbia.”   Finally, the Board concluded that “[d]uring the period he operated his own firm, [plaintiff] used, or caused to be used, the stamps of other architects on [plaintiff's] work.”

The Board concluded revocation of plaintiff's license was warranted for these four acts pursuant to sections 5583 and 5584.

Plaintiff filed a petition for writ of mandate to set aside the Board's decision.   He argued that because he was not the holder of a license at the time of these offenses, his license was not now subject to revocation.   He further asserted that revocation was an overly severe punishment, given the Board's failure to investigate his application more thoroughly, the time that had passed since these events occurred, and the fact that none of these charges related to the quality of services he provided.9  The trial court denied the writ petition.

This appeal followed.

DISCUSSION

I. Application of Sections 5583 and 5584 to Prelicensure Wrongdoing

 Plaintiff contends that the language of sections 5583 and 5584 must be construed to apply only to fraud, deceit, negligence and willful misconduct committed in the practice of architecture by an architect then licensed in California.   Because he was not licensed when the charged acts occurred, plaintiff asserts the Board lacked the power to revoke his license.   We agree.

 Our analysis starts, as always, “from the fundamental premise that the objective of statutory construction is to ascertain and effectuate legislative intent.  [Citations.]  In determining intent, we look first to the words themselves.  [Citation.]  When the language is clear and unambiguous, there is no need for construction.  [Citations.]  When the language is susceptible of more than one reasonable interpretation, however, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.”  (People v. Woodhead (1987) 43 Cal.3d 1002, 1007–1008, 239 Cal.Rptr. 656, 741 P.2d 154.)

 When examining the statutory scheme, “ ‘we do not construe statutes in isolation, but rather read every statute “with reference to the entire scheme of law of which it is part so that the whole may be harmonized and retain effectiveness.” ’ ”  (People v. Thomas (1992) 4 Cal.4th 206, 210, 14 Cal.Rptr.2d 174, 841 P.2d 159, quoting People v. Pieters (1991) 52 Cal.3d 894, 898–899, 276 Cal.Rptr. 918, 802 P.2d 420.)

Section 5583 provides:  “The fact that, in the practice of architecture, the holder of a license has been guilty of fraud or deceit constitutes a ground for disciplinary action.”  Section 5584 parallels this phraseology, and states that “[t]he fact that, in the practice of architecture, the holder of a license has been guilty of negligence or willful misconduct constitutes a ground for disciplinary action.”

Plaintiff contends these statutes must be interpreted to apply only if a licensee commits the forbidden acts in the practice of architecture.   He asserts the statutes set forth three prerequisites, namely (1) wrongful acts, (2) done in the practice of architecture, and (3) by a holder of a license, and these three prerequisites must be contemporaneous with one another.   Consequently, discipline may be imposed only if the wrongful acts in the practice of architecture are committed while someone is a holder of a license.   Plaintiff reasons that article 4 of the Act sets forth the standards for issuing or denying architectural licenses.   Under that article, a license may be denied if the Board receives information that the applicant had committed any prelicensure act which, “if committed or done by the holder of a license,” would be grounds for suspension or revocation of the license. (§ 5553;  see also § 480, subd. (a)(3);  § 5552, subd. (a).)  “By contrast,” he argues, “as long as the license was not obtained by misrepresentation, Article Five contains no parallel provision allowing the Board to revoke an issued license if the Board subsequently receives information that may have been grounds for the denial of a license in the first instance․  The failure of the Legislature to include a parallel authorization in Article Five underscores [plaintiff's] argument that the Legislature did not therein intend to allow revocation based upon prelicensure conduct.   The expression of such authority in Article Four excludes it from Article Five.”

In response, the Board asserts that under sections 5583 and 5584, the individual must be the holder of a license at the time discipline is imposed, but need not have been licensed at the time of the wrongful acts.   We conclude that plaintiff has the better argument.

The four wrongful acts found by the board (unlicensed practice of architecture, false statements and forged documentation in the AIA application, false representations concerning educational background and licensure, and the use of the stamps of other architects) would have individually or collectively provided sufficient reason for the Board to deny plaintiff's license application.   However, the Board had no knowledge of these offenses at the time plaintiff made his application.10  The question before us is whether these prelicensure acts may be grounds for discipline after a license has been issued.

As noted, the parties take opposing views on this issue, with plaintiff asserting that under the language of sections 5583 and 5584, the individual must have been the holder of an architect's license at the time of the fraudulent or negligent act.   The Board responds that the individual need only be a holder of a license at the time discipline is imposed, and need not have been licensed at the time of the wrongful acts.

By the terms of these statutes, it is the “holder of a license” who must engage in the “practice of architecture” and who in the course of that practice must have committed (“has been guilty of”) fraud, deceit, negligence or willful misconduct.   Thus, an unlicensed person cannot violate these statutes because he is not a “holder of a license.”   The Board's construction would unlink the connection between the holder of a license and the holder's misconduct.   Under the Board's view, these statutes could be violated by an unlicensed person who commits architectural misconduct anywhere in the world if perchance that person should later become licensed in California.   Such a strained construction is contrary to the ordinary meaning of the statutory language.

The Board counters that plaintiff's interpretation would render the provisions of section 5578 meaningless.   The argument is hard to follow.   Section 5578 simply provides that “[t]he fact that the holder of a license is practicing in violation of the provisions of this chapter constitutes a ground for disciplinary action.”   This section would apply, for example, if the licensee failed to report a settlement or arbitration award as required by sections 5588 and 5589.   It speaks to the present conduct of a licensee and does not address the question of the prelicensure misconduct at all.

But even if these statutes could be said to be ambiguous, we would still reject the Board's claim that they apply to prelicensure misconduct.   The claim of ambiguity must rest on the fact that the language of the two statutes in question does not explicitly state they are limited to post-licensure misconduct.   By any construction, these statutes require that the charged fraud, deceit, negligence or willful misconduct be committed “in the practice of architecture” by “a holder of a license.”   But the statutory definition of “the practice of architecture” does not by its terms limit that practice to services rendered in California.   And it might be argued that these statutes are facially unclear on whether the charged misconduct must occur after the architect was licensed in California or whether the architect need only be licensed at the time an accusation is filed against him.   They simply refer to the fact that the licensee “has been guilty” of the listed grounds for discipline, without any temporal reference to when that guilty conduct must have occurred.   Assuming this could be said to be ambiguous, we would resolve this ambiguity by first looking at the statutory scheme in its entirety.   As we read it, the licensing denial and disciplinary components of this statutory scheme for licensees are divided into two separate parts, one dealing with denial of a license for prelicensure misconduct (article 4) and the other dealing with revocation or suspension for post-licensure misconduct (article 5).

This dichotomy is most clearly set forth in sections 5552, subdivision (a), and 5553 of article 4.   Under section 5553, the Board may deny a license if evidence is received of “the commission or doing by the applicant of any act which, if committed or done by the holder of a license, would be grounds for the suspension or revocation of that license.”   Similarly, section 5552, subdivision (a), provides that an applicant shall “[n]ot have committed acts or crimes constituting grounds for denial of a license under Section 480.”   Section 480, subdivision (a)(3), in turn, provides that the Board may deny a license if the applicant has “[d]one any act which if done by a licentiate of the business or profession in question, would be grounds for suspension or revocation of license.”   All these provisions pertain to prelicensure misconduct.

In contrast, the provisions for disciplinary proceedings are found in article 5 of the Act.   They permit the Board to investigate and then suspend or revoke “license of any architect who is guilty of, or commits any one or more of, the acts of omissions constituting grounds for disciplinary action under this chapter.”  (§ 5560.)   Article 5 contains a series of statutes which permit disciplinary action to be brought for their violation, including the ones at issue in this appeal.

 This statutory scheme thus recognizes two categories of misconduct, those committed by licensees and those committed by applicants which would have been grounds of discipline had the actor been licensed as an architect in California at the time of their commission.   As we have noted, the Board is empowered to deny a license for a variety of prelicensure misconduct.   By virtue of this authority, the Board is granted sweeping powers to deny a license for prior misconduct by an applicant committed anywhere.

But once the Board issues a license that was not obtained by fraud or misrepresentation, the statutory scheme contemplates the imposition of discipline only for misconduct occurring after licensure.   As we have noted, the Board is empowered to investigate and suspend or revoke the license of any “architect who is guilty of, or commits any one or more of, the acts or omissions constituting grounds for disciplinary action under this chapter.” (§ 5560.)   This statute uses the present tense and by its terms, it is an “architect” who must commit the misconduct and an architect, by definition, is someone licensed as such in California. (§ 5500.)   This pattern of prospective, post-licensure application continues throughout article 5 of the Act. After an investigation, if the executive officer of the Board has probable cause to believe that a licensee has violated the Act, the officer may issue a citation to the licensee.   But before a citation may issue, the executive officer shall submit the alleged violation to a least one designee of the Board who is a certificate holder or a staff architect.  “The review shall include attempts to contact the licensee or unlicensed individual to discuss and resolve the alleged violation.” (§ 5566, emphasis added.)   Obviously, this review procedure could not be applied to a unlicensed nonresident who acted years before in another state.   It presupposes that the unlicensed person committed his acts in California or that the violation occurred after the accused was licensed to practice architecture in California.

 Other sections are also designed to deal with violations after licensure.   For example, the license holder must report to the Board any settlement or arbitration award in excess of $5,000 for a claim or cause of action based on the licensee's “fraud, deceit, negligence, incompetency, or recklessness in practice.”  (§ 5588.)   The report must be sent within 30 days after the settlement agreement has been consented to by the insured or after the service of the arbitration award on the parties.  (Ibid.)  It goes without saying that a nonresident who is not licensed in California has no duty to send such a report for architectural misconduct in another state.   Unlike the federal government, the Board does not have national jurisdiction and has no power to regulate or discipline a nonresident for misconduct committed in another state.   This reporting statute, like the other disciplinary statutes, is designed to be applied only to licensed California architects who commit their misconduct after licensure.   Similarly, section 5590 requires a license holder to report “after a judgment by a court of this state” that the licensee has committed a crime or was been found liable for any death, personal or property injury or loss caused by the licensee's fraud, deceit, negligence, incompetency, or recklessness in practice.   This section also contemplates post-licensure misconduct in this state.   Finally, section 5527 authorizes the superior court to issue an injunction or other restraining order whenever “any person has engaged in or is about to engage in any act or practice which constitutes or which will constitute an offense against this chapter, ․”  In like fashion, this statute also contemplates present misconduct committed in California.

This structural division between prelicensure misconduct and post-licensure misconduct reflects a legislative intent to treat the two types of wrongdoing differently and thus militates against the construction urged by the Board.

None of the other extrinsic aids to resolve ambiguity supports the Board's position.   For example, the Board has not cited any legislative history of the Act to support its construction.   This is not surprising since the legislative history in fact supports a contrary view.   In 1994, the Legislature enacted section 5586.   This section reads:  “The fact that the holder of a license has had disciplinary action taken by any public agency for any act substantially related to the qualifications, functions, or duties as an architect constitutes a ground for disciplinary action.”   The Board was the sponsor of this legislation.   The digest of the Assembly Committee on Consumer Protection, Governmental Efficiency and Economic Development on the bill in question, Assembly Bill No. 2702, recites that “the sponsor [the Board] contends that currently if an architect, licensed to work in California and another state, works in another state, and that work is found to be in violation of that state's requirements, because the work did not occur in California, there is no action that can be taken by the Board of Architectural Examiners.   This bill would allow for such an action.”  (Assem. Com. on Consumer Protection, Analysis of Assem. Bill No. 2702 (1993–1994 Reg. Sess.) as introduced Feb. 7, 1994.)   The Board's contention before the Legislature, and the new statute itself, are inconsistent with the position taken by it in this case.   Under the construction now urged by the Board, the enactment of section 5586 would have been unnecessary.

 The construction urged by the Board would also cast a constitutional shadow over the Act.   By its terms, whenever a citation for revocation of a license is filed, the citation may “contain an assessment of a civil penalty.”  (§ 5566.)   After exhaustion of the review procedures, the Board may apply to the appropriate superior court for a judgment in the amount of the civil penalty. (§ 5566.2, subd. (d).)  Under the regulations adopted by the Board, the assessments may range from $50 to $2,000 for each violation depending upon the gravity of the violation and its consequences.  (Cal.Code Reg., tit. 16, § 152.)   Thus, under the construction advanced by the Board, plaintiff could have been fined under the Act for conduct committed in another jurisdiction when he was a nonresident and years before he was licensed by the Board in California.   Such a construction would pose grave substantive due process questions.   As we noted in People v. Armbruster (1985) 163 Cal.App.3d 660, 664, 210 Cal.Rptr. 11, “[t]he cardinal principle of substantive due process is that a law which deprives a person of life, liberty, or property must not be the product of arbitrary legislative judgment.  [Citations.]  Such a law must be reasonably related to the object sought to be attained by its enactment.”   We would be hard pressed to find a rational basis for the imposition of such a retroactive, extraterritorial fine.   We are admonished to “adopt an interpretation that, consistent with the statutory language and purpose, eliminates doubts as to the provision's constitutionality.”  (In re Kay (1970) 1 Cal.3d 930, 942, 83 Cal.Rptr. 686, 464 P.2d 142.)  “The basis of this rule is the presumption that the Legislature intended, not to violate the Constitution, but to enact a valid statute within the scope of its constitutional powers.”  (Miller v. Municipal Court (1943) 22 Cal.2d 818, 828, 142 P.2d 297.   See also People v. Superior Court (Romero ) 13 Cal.4th 497, 509, 53 Cal.Rptr.2d 789, 917 P.2d 628.)   Consistent with that admonition and the statutory language and purpose, we must reject the Board's construction.

It is true that section 5510.1 clearly delineates the purpose of the Act, particularly the disciplinary functions of the Board, as the protection of the public health, safety and welfare.   But this express legislative goal would not be thwarted if the Board were precluded from retroactive action against an individual for past misconduct.   While it may be unrealistic to expect the Board, or any other agency for that matter, to uncover evidence of all past charged or uncharged wrongdoing anywhere in the world, the Act empowers the Board to require the applicant to reveal that damning information and to deny such an application if revealed or to revoke the license if concealed by fraud or misrepresentation.   Consequently, the Board is already furnished with broad powers to protect the public against an applicant who has previously committed acts of misconduct related to architectural work.   The fact that the application form could have, but did not, ask if the applicant had ever engaged in conduct which would have been a ground for discipline had the applicant been licensed in California is a blunder on the part of the Board, not a statutory defect that needs curing by construction.   The public is amply protected by the statutory scheme without that scheme being distorted beyond its plain meaning.

Finally, the Board claims that plaintiff's reliance upon Taylor v. Dept. of Pro. Regulation, (Fla.1988) 534 So.2d 782, is misplaced.   In Taylor, the appellate court found the Florida Board of Medical Examiners had no jurisdiction to discipline a doctor for acts of professional misconduct committed prior to the doctor's licensure.   An allegation against the doctor charged him with being “unable to practice medicine with reasonable skill and safety contrary to [statute].”  (Id. at p. 783.)   The majority of acts proven occurred prior to licensure.   The court noted “physician disciplinary proceedings are governed by statutes which, being penal in nature, are to be strictly construed and strictly followed.”  (Id. at p. 784.)   The court concluded that in the absence of a clear legislative statement to the contrary, the public was adequately protected by those powers expressly conferred upon the Board of Medical Examiners.  (Ibid.)

 As the Board correctly notes, in contrast to the rule in Florida, California does not deem disciplinary actions against licensees to be penal in nature.   In Viking Pools, Inc. v. Maloney (1989) 48 Cal.3d 602, 257 Cal.Rptr. 320, 770 P.2d 732, a case involving discipline under the Contractors' State License Law, the California Supreme Court noted this statutory scheme was designed to “protect the public against the perils of contracting with dishonest or incompetent contractors” (id. at p. 606, 257 Cal.Rptr. 320, 770 P.2d 732), and must therefore be interpreted broadly to prevent contractors from easily evading the statute's protective purposes.  (Id. at p. 607, 257 Cal.Rptr. 320, 770 P.2d 732.)   The court noted the purpose of the disciplinary proceedings was “ ‘to determine the fitness of a contractor to continue in that capacity.   It is not intended for the punishment of the individual contractor, but for the protection of the contracting business as well as the public by removing, in proper cases, either permanently or temporarily, from the conduct of a contractor's business a licensee whose method of doing business indicates a lack of integrity upon his part or a tendency to impose upon those who deal with him․’ ”  (Ibid.)   But the fact that disciplinary statutes are not deemed penal in California and hence are not strictly construed does not mean that a grammatically untenable construction, one not supported by any extrinsic aid, ought to be adopted.

For all of these reasons, we hold that sections 5583 and 5584 apply only to misconduct committed by a licensee after licensure.11  Because of this holding, we have no occasion to consider plaintiff's remaining contentions that the Board lacked power to reverse its earlier licensing determination and that revocation is an excessive sanction.

II. Cross-appeal

The Board has filed a protective cross-appeal, contending the superior court had jurisdiction to determine whether it erred in concluding that the Virginia criminal proceeding against plaintiff did not constitute a conviction within the meaning of section 5577.   The Board further contends the court erred in refusing to consider additional, newly discovered evidence related to plaintiff's prelicensure misconduct.   Given our construction of the governing statutes, the claims concerning additional evidence of prelicensure misconduct are moot.

 The Board's argument concerning section 5577 fares no better.   There are two fatal flaws to this contention.   First of all, the Board itself made the determination that the Virginia proceedings did not constitute a conviction.   The Board cannot claim to be “aggrieved” by a judgment upholding its own decision.   Under the governing statute, only a party “aggrieved” may appeal.  (Code Civ. Proc., § 902.   See generally, 9 Witkin, Cal. Procedure (3rd ed. 1985) Appeal, § 139, pp. 148–150.)   Since the Board was not aggrieved by the affirmation of its own determination, it lacks standing to appeal that issue.   Secondly, the prior conviction claim suffers from the same defect as the Board's construction of the other statutes.   As we have noted, section 5577 provides in relevant part:  “The conviction of a crime substantially related to the qualifications, functions, and duties of an architect by the holder of a license constitutes a ground for disciplinary action.” 12  Like the other statutes in the disciplinary article of the Act, this statute also is designed to cover only post-licensure conviction of crimes.   Prelicensure crimes are covered in article 4 of the Act.   As we have noted, section 5552 authorizes the Board to deny a license to an applicant who has “committed acts or crimes constituting grounds for denial of a license under Section 480.”   Section 480, subdivision (a)(1), authorizes the Board to deny a license if the applicant has “[b]een convicted of a crime.”   Subdivision (a) of that section further provides that Board may “deny a license pursuant to this subdivision only if the crime or act is substantially related to the qualifications, functions or duties of the business or profession for which application is made.”   Thus, the same structure for prelicensure and post-licensure conviction of crimes is repeated in the statutory scheme.   For the same reasons, we hold that section 5577 refers only to conviction of crimes relating to architectural qualifications, functions and duties that occur after licensure.   Even assuming that plaintiff has been convicted for such crime in Virginia, an issue we do not decide, that conviction occurred before plaintiff was licensed in California and thus is beyond the purview of section 5577.   Consequently, whether or not the Virginia proceeding constituted a conviction within the meaning of section 5577 is immaterial.

DISPOSITION

The judgment is reversed and the cause remanded to the trial court with directions to issue the writ in favor of plaintiff.   Plaintiff shall recover his costs on appeal.

FOOTNOTES

1.   A license may also be denied if the “applicant knowingly made a false statement of fact required to be revealed in the application ․”  (§ 480, subd. (c).)

2.   The Board may also discipline individuals who practice architecture without a license.  (§ 5566.)

3.   If a license was obtained by fraud or misrepresentation, a violation of section 5579, the accusation must be filed within three years after discovery of the alleged facts constituting the fraud or misrepresentation.  (§ 5561.)

4.   Certain architectural plans must bear the stamp of the licensed architect working on the project.  (See generally § 5536.1;  Cal.Code Regs., tit. 16, § 136.)

5.   As discussed in the body of the opinion, although plaintiff apparently believed the charges against him were dropped in February 1990, the charges were not officially dropped until several months later, in May.

6.   The rest of this letter was devoted to plaintiff's descriptions of curative measures he had taken to correct these misrepresentations.   Because Virginia criminal proceedings were underway, plaintiff determined it was not the appropriate time to pursue licensure in the District of Columbia and, on March 27, 1989, plaintiff withdrew his application.

7.   As in effect at that time, section 490 authorized the suspension or revocation of a license on “the ground of knowingly making a false statement of fact required to be revealed in an application for such license.”  (Stats.1980, ch. 548, § 1, p. 1529.)   Section 5579 provides:  “The fact that the holder of a license has obtained the license by fraud or misrepresentation ․ constitutes a ground for disciplinary action.”

8.   The accusation further alleged the circumstances surrounding this conviction were substantially related to plaintiff's qualifications, functions, and duties as an architect.

9.   Plaintiff did not challenge the Board's findings of facts, nor does he raise such a challenge on appeal.

10.   Plaintiff suggests the Board was on notice of these acts because his application stated he was working at “C.S. Hughes Associates” but had never been licensed as an architect.   This disclosure does not in any way indicate plaintiff might have performed work for which he was not licensed, forged an AIA application, authorized the use of another architect's stamp, or misstated his qualifications to practice architecture.   We further note the brochure of firm work that plaintiff apparently attached to his application is not part of the record on appeal.   Therefore, contrary to plaintiff's assertion, there is no evidence in the record that this particular brochure contained the misstatements regarding educational and licensing achievements that formed the basis for this disciplinary action.

11.   It has been held that the California Supreme Court may discipline an attorney for preadmission misconduct.  (Stratmore v. State Bar (1975) 14 Cal.3d 887, 891, 123 Cal.Rptr. 101, 538 P.2d 229.)   But unlike the limited powers conferred upon the Board, the Supreme Court has inherent power over the admission, disbarment and suspension of attorneys.  (Id. at p. 889, 123 Cal.Rptr. 101, 538 P.2d 229.)   Consequently, “the statutory grounds for discipline are not exclusive.”   (Ibid.)  “Since under our inherent power we may discipline an attorney for conduct ‘either in or out of [his] profession’ which shows him to be unfit to practice [citation], it is irrelevant that [the attorney's] misconduct preceded his admission to practice.”  (Id. at p. 890, 123 Cal.Rptr. 101, 538 P.2d 229.)   In contrast, in this case the statutory grounds constitute the exclusive authority of the Board to impose discipline upon a licensee.

12.   This statute further provides that the Board “may order the license suspended or revoked, or may decline to issue a license, when the time for appeal has elapsed, the judgment of conviction has been affirmed on appeal, or an order granting probation is made suspending the imposition of sentence, irrespective of a subsequent order under the provisions of Section 1203.4 of the Penal Code allowing the person to withdraw his or her plea of guilty and to enter a plea of not guilty, or setting aside the verdict of guilty, or dismissing the accusation, information, or indictment.”   As we read it, the reference to declining to issue a license refers to a renewed license, not to the denial of an application for a license in the first instance.   As we explain in the text, the denial of a license in the first instance is governed by sections 480 and 5552.

SPARKS, Associate Justice.

PUGLIA, P.J., and BLEASE, J., concur.

Copied to clipboard