Robbins v. Davi

1. The standard of review.

When a trial court rules on a petition for writ of mandate following a license revocation, it must examine the record for errors of law, and exercise its independent judgment to determine whether the weight of the evidence supported the administrative decision. (Bixby v. Pierno (1971) 4 Cal.3d 130 , 143 & fn. 10 [ 93 Cal.Rptr. 234 , 481 P.2d 242 ]; Yakov v. Board of Medical Examiners (1968) 68 Cal.2d 67 , 69 [ 64 Cal.Rptr. 785 , 435 P.2d 553 ].) After the trial court' has exercised its independent judgment upon the weight of the evidence, an appellate court’s function “is solely to decide whether credible, competent evidence supports [the trial] court’s judgment.” {Yakov, supra, 68 Cal.2d at p. 69.) The trial court’s legal conclusions, however, are open to appellate review for errors of law. (Green v. Board of Dental Examiners (1996) 47 Cal.App.4th 786 , 796 [ 55 Cal.Rptr.2d 140 ].) Whether a licensee’s convictions are substantially related to his or her professional qualifications is a question of law. (Donaldson v. Department of Real Estate (2005) 134 Cal.App.4th 948 , 954 [ 36 Cal.Rptr.3d 577 ] {Donaldson).)

2. Robbins’s convictions for municipal code violations were substantially related to the qualifications of a real estate licensee.

A determination that a licensee’s conviction justifies discipline “requires a reasoned determination that the conduct was in fact substantially related to the licensee’s fitness to engage in the profession.” (Donaldson, supra, 134 Cal.App.4th at p. 955, fn. omitted.) As Donaldson explains, licensing authorities do not have unfettered discretion to determine whether a given conviction is substantially related to the relevant professional qualifications. {Id. at pp. 955-956.) Licensing authorities are required to develop criteria to aid them in making that determination. (§ 481.) The Department’s criteria appear in section 2910 of title 10 of the California Code of Regulations. As applicable here, those criteria state: “When considering whether a license should be denied, suspended or revoked on the basis of the conviction of a crime, ... the crime . . . shall be deemed to be substantially related to the qualifications, functions or duties of a licensee of the Department... if it involves: [][]... [1] (8) Doing of any unlawful act with the intent of conferring a financial or economic benefit upon the perpetrator or with the intent or threat of doing substantial injury to the person or property of another.” (Cal. Code Regs, tit. 10, § 2910, subd. (a)(8).)

Here, as the ALJ observed, the code violations of which Robbins was convicted arose out of his ownership and/or management of apartments, and Robbins himself indicated this was a very profitable business. (He placed in evidence a summary of his background in real estate development, which indicated that he had discovered many years ago that by acquiring and upgrading apartment buildings, “he could obtain extraordinary rates of return on the marginal sums spent on rehabilitation, and could purchase buildings at disproportionately high discounts in price for the problems involved.” And, “[currently he represents owners of over twenty properties with over 1000 apartment units and the owners continue to upgrade buildings and achieve significant operating income increases in greater Los Angeles.”) As the ALJ concluded, Robbins’s convictions for violations of fire protection and prevention provisions of the Los Angeles Municipal Code “resulted from his failure to take care of health and safety requirements for the tenants of the apartments.” Since there was a profit motive (as well as the chance of substantial injury to apartment inhabitants), the ALJ concluded the requirements of section 2910 of title 10 of the California Code of Regulations were met. The trial court agreed.

We see no error of law in the trial court’s conclusion, which is supported by the evidence just recited, considered in the context of Robbins’s history of disregard for Los Angeles Municipal Code requirements. (As the trial court observed at the hearing, when Robbins’s counsel suggested the record was “devoid of any evidence of Mr. Robbins’ intent”: “I think his own declarations indicate that intent in doing all of his real estate transactions—and justifiably so—his intent was making money. He was doing great at it. ... I don’t know how you can be more—his intent was obtaining financial and economic benefit. And obviously he was getting a lot of it out of the running of all these units.”) When this profit motive—which of course is unassailable standing alone—is viewed in the context of Robbins’s extensive history of convictions for building code violations, it is clear that section 2910 is fully satisfied: Robbins’s convictions for fire code violations occurred in connection with a property he managed (and indeed a broker’s license is required for persons who, for compensation, lease or rent real property, collect rents from real property, and so on) (§ 10131, subd. (b)), and it is reasonable to infer from his history of convictions for similar violations that his unlawful acts were done “with the intent of conferring a financial or economic benefit upon the perpetrator . . . .” (Cal. Code Regs., tit. 10, § 2910, subd. (a)(8).)

Robbins resists this conclusion, contending no substantial relationship exists as a matter of law because his convictions did not involve “honesty or

truthfulness” and did not “impair[] his performance of professional duties to his clients in an honest and faithful manner.” Certainly honesty and truthfulness are required for the holder of a real estate license. (Golde v. Fox (1979) 98 Cal.App.3d 167 , 176 [ 159 Cal.Rptr. 864 ] [“there is more to being a licensed professional than mere knowledge and ability”; “[h]onesty and integrity are deeply and daily involved in various aspects of the practice”].) But nothing in Golde or any other authority cited by Robbins supports the proposition that crimes must involve a failure of “honesty or truthfulness” in order to be substantially related to the fitness of a real estate licensee. Moreover, while a licensee’s integrity may not be implicated by three convictions for code violations, when those convictions are placed in the context of an extensive history of similar violations, one may well question the claim that the licensee’s integrity is not implicated. In any event, all that is required to find a substantial relationship between a crime and the qualifications of a licensee is the doing of an unlawful act with the intent of conferring a financial benefit on the doer of the unlawful act. Contrary to Robbins’s assertions, and as we have just concluded, the evidence in the record is sufficient to show that requirement has been met.

Finally, Robbins asserts there is no evidence to support the ALJ’s findings that Robbins’s convictions “arose out of his ownership and/or management of apartments,” or that his convictions “resulted from his failure to take care of health and safety requirements for the tenants of the apartments,” and that “the only evidence on the [latter point] was submitted by Robbins that the criminal charges against him were unfounded . . . .” Nonsense. Robbins is not entitled to relitigate the issue of guilt as to the underlying criminal convictions. (Ar neson v. Fox, supra, 28 Cal.3d at p. 448 [“[t]he Legislature reasonably might have concluded that a nolo conviction represents a sufficiently strong indicator of guilt to warrant discipline of a licensee without necessitating any administrative relitigation of the underlying charges”; a “strong majority of courts in this and other states have considered nolo convictions as conclusive evidence of guilt for the purpose of imposing administrative discipline”].)

In sum: Under the Department’s criteria, a substantial relationship is deemed to exist between a crime and the “qualifications, functions or duties” of a licensee if the crime involves doing an unlawful act “with the intent of conferring a financial or economic benefit upon the perpetrator . . . .” Robbins’s convictions for municipal code violations, viewed in the context of his extensive history of previous code violations, meet this requirement, and accordingly there was no error in the revocation of Robbins’s license as a real estate broker.

DISPOSITION

The judgment is affirmed. The Real Estate Commissioner is to recover his costs on appeal.

Rubin, Acting R J., and Flier, J., concurred.

A petition for a rehearing was denied July 10, 2009, and appellant’s petition for review by the Supreme Court was denied September 17, 2009, S175141.