Although the cases are not numerous, they are more numerous than those arising from the Board of Appeals and Review and it is felt their frequency will increase in the years to come. As might be expected, several cases have arisen to establish I strictly the necessity for the making of a complete record by the occupational or professional board, review being limited to that record. One of the most unusual cases emphasising the importance of a complete administrative record and of judicial reliance upon that record was Stone v. Board of Examiners and Registrars of Architects, 126 A 2d 157 (1957), in which the Municipal Court of Appeals sustained the Board's action revoking Petitioner's certificate of registration as an architect. Petitioner had been granted a license in 1952 pursuant to a 5-year grandfather clause in the statute.19 Petitioner had answered in the negative a routine question as to whether he had ever had a prior registration certificate revoked. In 1955, information was brought to the Board's attention that Petitioner had been registered in Maryland from 1936 to 1942 and that his Maryland license had been revoked in 1942 upon his conviction of a criminal offense. The Board held a hearing and questioned Petitioner concerning his negative response and his omission of any disclosure concerning revocation. The Board concluded that Petitioner deliberately withheld information from the Board and apparently denied him a license on the ground that he had attempted to perpetrate a fraud upon the Board or was otherwise ethically unqualified by his conduct Review by Court of Appeals for the District of Columbia Circuit: Board of Examiners and Registrars of Architects, §2-1028. Appeal from revocation by Court of Appeals of the District of Columbia: Board of Examiners of Veterinary Medicine, §2-810. Review by Court of Appeals of the District of Columbia: Board of Pharmacy, §2-606. Appeal to the Board of Commissioners only and purporting to be final: District of Columbia Board of Cosmetology, §2-1305. Review by District Court for the District of Columbia: District of Columbia Board of Registration of Professional Engineers, §2-1809; Real Estate Commission, $45-1409. "Then §2-1019(b), D.C. Code (1951). Such clauses are common when a new statute is enacted, usually permitting an otherwise qualified person who has been practising his profession or engaging in his occupation for 5 years prior to the effective date of the statute to secure a license to continue in his endeavor without submitting to an examination. [ 407 ] before the Board to be a registered architect. Petitioner contended that his erroneous answer was at most a mistake and for other reasons that he was entitled to have his license continued. The Municipal Court of Appeals opined that, “The Board could have concluded that it was inconceivable that from 1943 to 1951 Petitioner made no inquiry, official or otherwise, of the status of his prior registration in Maryland. . . ."5o and accordingly held that the finding of the Board was neither arbitrary nor capricious. Petitioner appealed to the Court of Appeals for the District of Columbia Circuit.51 The Court, in a brief per curiam opinion, held that even though the Board found specifically that Petitioner violated §27 (a) of the Architects' Registration Act,52 that, nevertheless, the Board had "... failed to find that the instant certificate was . . . obtained... through fraud or misrepresentation "53 and thus, the Court remanded the case to the Municipal Court of Appeals with directions to further remand the case to the Board and with further directions to the Board to vacate its decision "... and to dismiss these proceedings unless it can and does find, from the evidence of record, that the actual obtaining of the instant certificate was due to fraud or misrepresentation.' "54 55 When the conclusion of a professional board is challenged as not being supported by substantial evidence in the record, the reviewing court will, consistent with federal administrative review principles, limit its consideration to the facts adduced in the adminstrative record. Thus, in the case of Ehrlich et al v. Real Estate Commission of the District of Columbia, the Municipal Court of Appeals considered Appellant's contention that the Real Estate Commission had concluded without substantial evidence of record that Appellant's advertisement substantially misrepresented the property he was attempting to sell and that Appellant demonstrated an unworthiness to act as a licensed real estate broker in the best interests of the public. The Court relied extensively upon the general consensus of to Ibid, at 159. 51 Stone v. Board of Examiners and Registrars of Architects of the District of Columbia, 249 F 2d 104, 101 App DC 348 (1957). Ibid. 118 A 2d 801 (1955). 71-472 0-72- -7 opinion of experts who testified before the Real Estate Commission. The Court also expressed the view, of importance in any review involving a business or professional license to deal with the public, that, "When a person undertakes to make a statement in a business transaction, either voluntarily or in response to inquiries, he is bound not only to state fully what he tells, but not to suppress or conceal any facts within his knowledge which would materially qualify those stated." 56 As one might expect, the various boards are expected to make adequate findings of fact. In the case of Coffey v. Jordan," the Court of Appeals for the District of Columbia Circuit held that, even though the statute involving licensing of life insurance solicitors 58 did not specifically require the Superintendent of Insurance to make findings of fact, and even though Appellant had not requested such findings until after he went to court, Appellant should be given an opportunity to be presented with such findings before the Superintendent would be permitted to revoke an insurance solicitor's license. Although this case does not involve a board, committee or commission within OCCUPATIONS AND PROFESSIONS, it undoubtedly states the rule with respect to findings of fact. As Professor Davis has noted," there are practical reasons for requiring administrative findings which virtually all federal and state courts have recognized, irrespective of statutory requirement. There are a few strange statutory requirements, and the case of Hendelberg v. Goldstein 60 tends to indicate these will be strictly enforced. In the Hendelberg case, the pharmacist's license expired on October 31, 1947. On November 28, 1952, the pharmacist applied for a renewal of his long expired license. The Board of Pharmacy considered his application as timely but denied it on December 31, 1952, because the applicant had been convicted on December 9, 1952, of selling drugs illegally. At a subsequent hearing before the Pharmacy Board, 61 evidence was adduced which tended to show other convictions. The Court held that the Board had no authority to consider the pharmacist's application at all because the statute 1 required that "in the month of November . . ." a licensed pharmacist must present his application for renewal and the Board must act upon it ". . . in the month of November." In the instant case, the Board did nothing upon it until the following month -December. The Court of Appeals expressed the view that the Board should have at least made an adequate notation in the record in order to take and preserve its jurisdiction. The Court implied that that notation should have been made in November 1947. The Court noted a number of irregularities in complying with the statute upon the part of the Board of Pharmacy and expressed the doubt that the Board fully understood its duties. The Court characterized the governing statutes as ". . . inaptly worded and confused by ambiguity and inconsistency . . ." and opined that they . . should be replaced by an entirely new Code," 62 a view evidently shared by an increasing number of people. 63 ་་ A perusal of the statutes indicates several places where they are conspicuously vague or incomplete. A case arose on one such point. In Kaiser v. Real Estate Commission of the District of Columbia, the Municipal Court of Appeals was asked to decide, inter alia, if two out of three members of the Real Estate Commission could act in the name of the Commission pursuant to the statute, the statute being silent as to the constitution of a quorum. The Court held that in the absence of a specific requirement for a full board, a majority would suffice. Although this report does not analyze all of them, the cases on record are too few to indicate a trend in judicial review. However, comparing the prevailing attitude of the Court of Appeals for the District of Columbia Circuit regarding administrative review, it appears certain that to the extent pertinent issues are appropriately raised, the Court increasingly will require the various occupational and professional boards to hold §2-606, D.C. Code (1951). Hendelberg V. Goldstein, op cit, at 431. 155 A 2d 715 (1959). hearings, to make precise findings of fact and to base their decisions clearly upon evidence of record. If the proposed Administrative Code for the District of Columbia or some similar code were enacted, several statutory peculiarities could be eliminated and a general harmony among procedures in OCCUPATIONS AND PROFESSIONS could be substituted for the extreme divergence which now prevails. IX. AUTHOR'S EDITORIAL COMMENT "To grasp this Sorry Scheme of Things entire, Remould it nearer to the Heart's Desire!" 6 64 It is not the primary purpose of this writing to editorialize but to report. One conclusion, however, seems inescapable: the various boards, committees and commissions of OCCUPATIONS AND PROFESSIONS must inevitably publish systematic and coordinated rules which fulfill the established requirements of the law of administrative procedure. Whether the simpler and more coordinated procedure of LICENSES AND INSPECTIONS and its Board of Appeals and Review requires change would seem to be a totally different question, the answer to which must take into account not only the Department's volume but also the type of licenses it issues. |