Hutchinson v. Contractors' State License Board

Appeal from a judgment of the superior court denying a writ of mandate to compel respondents to set aside an order revoking appellant’s license as a contractor.

On June 11, 1954, an investigator for the Contractors’ State License Board filed an accusation against appellant Hutchinson alleging that he had violated sections 7107, 7108, 7109, 7110, 7116, 7119 and 7121 of the Business and Professions Code in the construction of an addition to the home of Lida Donnell and the building of a home for Dr. L. Z. Livingston, both in Twentynine Palms. A hearing was held on the charge during which the hearing officer visited both premises and inspected the constructions. That officer found that Hutchinson had violated section 7108 by diverting funds received from both Donnell and Livingston for the prosecution and completion of their homes; violated section 7109 by wilfully departing from plans and specifications of both

Appellant claims that no substantial evidence exists to support the findings of the superior court. A reweighing of the evidence adduced at a hearing conducted by a statutory, state-wide administrative agency which results in the revocation of a license to pursue a common calling is the function of the superior court in a mandamus action, and the superior court makes its own findings of fact after reweighing the evidence. (Moran v. Board of Medical Examiners, 32 Cal.2d 301 , 308 [ 196 P.2d 20 ] ; Dare v. Board of Medical Examiners, 21 Cal.2d 790 , 795 [ 136 P.2d 304 ] ; Ashdown v. State, 135 Cal.App.2d 291 , 299 [ 287 P.2d 176 ].) Where, as here, the superior court does reweigh the evidence and make independent findings, the only function of the appellate court is to determine whether those findings are supported by substantial evidence. (Moran v. Board of Medical Examiners, supra, at page 308; Ashdown v. State, supra, at page 299.)

Diversion of Funds

On June 17, 1953, appellant entered into a written contract with Lida Donnell concerning alterations to be made on her home. The brief instrument provided that Hutchinson should “furnish all materials and perform all labor . .. . in a substantial and workmanlike manner according to standard practices for the sum of $684.” Miss Donnell testified that she paid appellant $525 of such sum. She was not contradicted

The state of the evidence on the Livingston charge is exactly the same as is that in the case of Donnell. Notwithstanding appellant’s receipt of funds sufficient to pay specified materials bills, nevertheless he refused to pay them. Again, there are the ledger sheets which indicate that Hutchinson actually paid out more than he had received.

Rejection of appellant’s testimony with respect to the Livingston matter leaves the finding of diversion of funds without substantial evidentiary support.

Faulty Workmanship

(1) Donnell Job.

The trial court found that although there were numerous defects in Donnell’s addition when first “completed” by appellant, Hutchinson under the pressure of the pending accusation and hearing against him had scurried about correcting his slovenly work. The hearing officer apparently interpreted Terminix Co. v. Contractors’ State License Board, 84 Cal.App.2d 167 [ 190 P.2d 24 ], as requiring only a consideration of those defects which still exist at the date of the hearing. Actually, that case holds only that where the contractor had entered into a satisfactory settlement with the complaining home-owner prior to the filing of the accusation, the homeowner had suffered no substantial injury which is required before there is a violation of section 7110. (Terminix Co. v. Contractors’ State License Board, supra, p. 172.) At any rate, in the instant matter it was found that the exterior stucco on a small portion of the building was cracking excessively and that a very large crack was present between the frame and sash in one of the windows. The existence of these conditions was testified to by Miss Donnell and was observed by the hearing officer. Appellant now argues that the section of the wall complained of was “too narrow for the proper application of plaster.” It is not practicable for an appellate court to speculate on how large a section of wall must be in order for plaster properly to adhere. Appellant offered no evidence for the purpose of excusing the failure of his stucco. As to the crack between the sash and frame,

(2) Livingston Job.

Here again much inferior workmanship was disregarded at the hearing because appellant had succeeded in repairing the damage before the date of the hearing. Nevertheless, certain defects in the Livingston home still existed as found by the hearing officer, and the trial court. In each instance, the facts were developed by the testimony of Dr. Livingston and Mr. Pernald, a building inspector for San Bernardino County, and were observed by the hearing officer. In the first place, the redwood siding was improperly applied as a result of which the siding admits the rain. Appellant argues that the redwood he was forced to use by Livingston had been left over from a prior job by another contractor and not only was of poor quality, but had been warped by the sun. But the hearing officer was able to view the scene and he rejected appellant’s contention. It is impossible to determine here what leakage resulted from inferior material and what followed its improper installation.

A roof overhang was improperly supported and consequently it sags and is not plumb. Appellant points out that he had nothing to do with the plans and specifications and claims that since the plans called for no support, no support it was. Since no drawings or blueprints are contained in the record on appeal, no evidence substantiates appellant’s contention.

Louver glass windows were installed in such a manner that a wide space was left between the ends of the louver and the metal window frame, with the result that they are not weather tight but, on the contrary, admit an excessive amount of air. Appellant claims that louver windows come in integral units from the factory, and that the method of installation has nothing to do with the gap between the louver and the metal

As a somber denouement to her many difficulties in securing the construction of her desert home, Dr. Livingston suffered condemnation of the structure by the building inspector of San Bernardino County immediately upon its completion. Because Dr. Livingston had no other place to live and had nearly exhausted her funds, she was not prevented from living in the house.

The registrar found that appellant had violated sections 7108, 7109, 7110 and 7116 “thereby subjecting his license to disciplinary action” and the order of revocation of his license was general, without any holding in substance or effect that each violation of the code committed by appellant was in itself sufficient cause for such severe discipline. In these circumstances, it is appropriate to reverse the judgment with instructions to the trial court to set aside the order and send the matter back to the board for reconsideration of the penalty (Cooper v. State Board of Medical Examiners, 35 Cal.2d 242 , 252 [ 217 P.2d 630 , 18 A.L.R.2d 593 ]; Bonham v. McConnell, 45 Cal.2d 304 , 306 [ 288 P.2d 502 ]; Black v. State Personnel Board, 136 Cal.App.2d 904 , 912 [ 289 P.2d 863 ] ; Mast v. State Board of Optometry, 139 Cal.App.2d 78 , 91 [ 293 P.2d 148 ]).

The judgment is reversed insofar as it holds that appellant

Fox, J., and Ashburn, J., concurred.