Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of San Diego County, William R. Nevitt, Jr., Judge. Super. Ct. No. GIC842566
NARES, Acting P.J.
This is Anthony Jaramillo's second appeal in propria persona to this court challenging efforts by respondent Board for Geologists and Geophysicists of the State of California, Department of Consumer Affairs (the Board) to stop him from practicing or offering to practice geophysics without a license. In a published opinion, Jaramillo v. State Board for Geologists and Geophysicists (2006) 136 Cal.App.4th 880 (Jaramillo I), we rejected all of the contentions that Jaramillo raised in his first appeal. That case arose after Jaramillo contracted with a consumer in Anza, California to provide a computer profile of subsurface conditions to locate groundwater on the consumer's property. (Jaramillo I, supra, 136 Cal.App.4th at pp. 881-882.) Jaramillo, who was not a licensed geophysicist, had never studied geophysics and was not working under a licensed geophysicist, advertised his business on a Web site titled "Radar Water Geophysics," which represented that he used "'electronic techniques for analysis of groundwater resources'" to "'identify the acquifer's geologic characteristics . . . .'" (Id. at p. 882.)
In early 2003 the Board issued its first citation against Jaramillo under Business and Professions Code section 7832 for practicing or offering to practice geophysics for others in violation of section 7872, subdivision (a) (hereafter § 7872(a)), and ordered him to pay a $2,500 fine. (Jaramillo I, supra, 136 Cal.App.4th at p. 882.) The administrative law judge (ALJ) found that Jaramillo was practicing geophysics without a license in violation of section 7872(a) and issued a proposed decision that sustained the citation and ordered him to pay the fine and cease and desist from violating sections 7832 and 7872(a). (Ibid.) After the Board adopted the ALJ's proposed decision as its own, Jaramillo challenged the Board's decision by filing in superior court a petition for a writ of administrative mandate under Code of Civil Procedure section 1094.5. (Jaramillo I, supra, at p. 882.) Jaramillo appealed the court's judgment denying his petition, and this court affirmed the judgment. (Id. at pp. 882-883, 897.)
All further statutory references are to the Business and Professions Code unless otherwise specified.
Section 7832 provides: "Any person, except as in this chapter specifically exempted, who shall practice or offer to practice geology or geophysics for others in this state is subject to the provisions of this chapter." (Italics added.) This section is found in chapter 12.5 ("Geologists and Geophysicists") of division 3 ("Professions and Vocations Generally") of the Business and Professions Code.
Section 7872(a) provides in part: "Every person is guilty of a misdemeanor and for each offense of which he is convicted is punishable by a fine of not more than one thousand dollars ($1,000) or by imprisonment not to exceed three months, or by both fine and imprisonment: [¶] (a) Who, unless he is exempt from registration under this chapter, practices or offers to practice geology or geophysics for others in this state according to the provisions of this chapter without legal authorization." (Italics added.)
The instant case arose in late 2003 when the Board issued a second citation under section 7832 against Jaramillo─which is the subject of this new appeal─alleging he had offered to practice geophysics without legal authorization in violation of section 7872(a) by placing an advertisement in a Los Angeles County newspaper. The citation ordered Jaramillo to cease and desist from engaging in illegal activities and ordered him to pay a $2,500 fine. Jaramillo administratively appealed the new citation and testified at an evidentiary hearing held by the Board. The ALJ sustained the citation, and the Board adopted the ALJ's proposed decision. Jaramillo challenged the Board's decision by filing in superior court a petition for a writ of administrative mandate under Code of Civil Procedure section 1094.5, and later appealed the court's judgment denying his petition.
Some of Jaramillo's current contentions are identical to contentions we rejected in Jaramillo I. He contends (1) the Board's administrative decision affected his fundamental right to operate his business, and thus under Goat Hill Tavern v. City of Costa Mesa (1992) 6 Cal.App.4th 1519 (Goat Hill Tavern) the court committed reversible error when it failed to apply the independent judgment standard of review; (2) even if the court properly applied the substantial evidence test, the Board's expert witness Tony Sawyer (Sawyer) offered perjurious testimony and thus there is no substantial evidence to support the court's decision upholding the Board's decision; (3) he was denied a fair hearing because the citation failed to comply with the requirements of Government Code section 11503 and thus the Board failed to provide adequate notice of the charges against him; (4) notwithstanding the testimony of the Board's witness (Sawyer) to the contrary, Jaramillo's own testimony established he was exempt from licensure under California Code of Regulations, title 16, section 3003, subdivision (e) (hereafter section 3003(e) of the regulations) because the services he performed were nonprofessional; (5) the citation was "deficient" because it failed to cite a "local San Diego jurisdictional Rule of Law that governs [Jaramillo's] work activity"; and (6) the Board's decision is not supported by its findings, it fails to satisfy the fact-specific findings requirement of Topanga Association for a Scenic Community v. County of Los Angeles (1974) 11 Cal.3d 506 (Topanga), and it is contrary to the weight of the evidence because "the evidence essentially consisted of nothing more than the testimony of a perjurious witness." We reject these contentions and affirm the judgment.
All further references to regulations are to title 16 of the California Code of Regulations.
FACTUAL AND PROCEDURAL BACKGROUND
Jaramillo is the sole owner of a business that performs water locating services. Jaramillo advertises that he can locate water for property owners. His minimum fee is $545. He has never attended any college-level courses related to geophysics or geology; he is not a licensed geophysicist or geologist; and he has never worked under a licensed geophysicist or geologist.
A. The Advertisement
Jaramillo placed an advertisement in the October 26 through November 1, 2003 issue of a Los Angeles County newspaper, Agua Dulce Acton Country Journal (hereafter Country Journal), offering his geophysics services to the public. The text of the advertisement was "www.WaterLocating.Com Geophysics Water Wells [telephone no.]." (Italics added.)
B. Citation
In November 2003 the Board's executive officer, acting under authority provided in California Code of Regulations, title 16, section 3062, issued Citation No. 01-2003-15 (the citation) under section 7832 (see fn. 2, ante) against Jaramillo for offering to practice geophysics without legal authorization in violation of section 7872(a) (see fn. 3, ante) of the Geologist and Geophysicist Act (§ 7800 et seq.) (hereafter occasionally referred to as the Act). (See § 7800.) The citation ordered Jaramillo to pay an administrative fine in the amount of $2,500 and to "CEASE and DESIST" from engaging in illegal activity.
Section 3062, subdivision (a) of the regulations provides: "The executive officer is authorized to issue citations containing orders of abatement or administrative fines pursuant to Business and Professions Code sections 148 and 149 against persons acting in the capacity of or engaging in the practice of a geologist, geophysicist, or certified specialist within this state without registration or certification in any discipline as a geologist, geophysicist, or certified specialist."
C. Administrative Hearing
Jaramillo contested the citation, and in September 2004 an ALJ conducted an evidentiary hearing on the matter on behalf of the Board. The ALJ received in evidence four exhibits: (1) the citation and various notices; (2) Jaramillo's advertisement in the Country Journal; (3) printouts of Jaramillo's waterlocating.com Web site; and (4) copies of the Act, the Board's rules and regulations (including §§ 3003 & 3062.1 of the regulations), and relevant statutes (including §§ 7832 & 7872(a)).
Two witnesses testified at the hearing: Sawyer and Jaramillo. Sawyer, a California registered geologist and certified hydrogeologist, testified that he looked at Jaramillo's Web site and advertisement, and opined that Jaramillo was implying he was using geophysics to locate water wells and soliciting to provide geophysical services. Sawyer testified the Web site contained a discussion of the methodologies Jaramillo was using and indicated Jaramillo was using a geophysical method. Specifically, Sawyer indicated the Web site showed Jaramillo was gathering data "to . . . make an interpretation of what the subsurface looks like down to 600 to [1,000] feet. And that would be the practice of geophysics."
Sawyer also opined that Jaramillo was not exempt from licensure under the exemption provided in section 3003(e) of the regulations (which, as discussed, post, exempts those who are doing nonprofessional geophysical or geological work) because Jaramillo's interpretation of what is below the surface of the ground based on the graphs he prepared after acquiring data and running a computer analysis constituted more than minimal interpretation and analysis.
In his own defense, Jaramillo testified about the nature of his work (discussed, post). He stated he believed he was exempt from licensure under section 3003, subdivisions (d) and (e) of the regulations when he advertised because he was doing minimal analysis and interpretation.
D. ALJ's Proposed Decision
After the hearing, the ALJ issued a proposed decision upholding the citation and setting forth various findings of fact and conclusions of law. The proposed decision concluded that cause existed to sustain the citation for violation of sections 7872(a) and 7832, and ordered Jaramillo to pay the Board a fine in the amount of $2,500 within 30 days of the effective date of the Board's final decision. It also ordered Jaramillo to cease and desist from violating sections 7872(a) and 7832.
Conclusion of law No. 1 stated: "Cause exists to sustain the citation for violation of . . . sections 7832 and 7872[(a)] and . . . section 3062.1 [of the regulations] in that [Jaramillo] practiced or offered to practice geophysics without a license and without legal authorization, as set forth in Findings 1-7." Conclusion of law No. 2 stated: "Cause exists to sustain the citation ordering [Jaramillo] to cease and desist from violating . . . sections 7832 and 7872[(a)] in that [Jaramillo] has engaged in the unlicensed and unauthorized practice of geophysics, as set forth in Findings 1-7."
E. Board's Decision
The Board adopted the ALJ's proposed decision as its own and stated it "shall become effective [October 22, 2004]."
F. The Petition
Jaramillo challenged the Board's decision by filing the petition in superior court. In the petition, Jaramillo asserted that the Board proceeded without or in excess of jurisdiction because he had offered evidence he was "performing only minimal non[]professional services and, therefore, [he was] exempt from license requirements." He claimed he was denied a fair trial because (1) the citation did not comply with Government Code section 11503; (2) the Board found he violated section 3062.1 of the regulations even though he was not charged with such a violation; and (3) the Board found he had violation section 7832 as charged in the citation, but "the words of [section] 7832 do not contain the word violation or any variation thereof," and thus "[t]here can be no violation merely for being a person covered by a chapter." Jaramillo maintained the Board abused its discretion because it did not proceed in the manner required by law, its decision was not supported by the findings, and the findings were not supported by the evidence. He also claimed the Board committed various legal errors, and asserted the court was required to apply the independent judgment test because the Board's decision involved a fundamental vested right in that he was "being deprived of his right to run his established business and earn a living."
The Board filed written opposition to the petition. It argued the substantial evidence standard of review applied because Jaramillo was not licensed, he was not a member of the geophysical profession, and thus no fundamental vested right was involved. Citing Jaramillo I, supra, 136 Cal.App.4th 880, the Board asserted it was authorized to issue the fine against Jaramillo for the unauthorized practice of geophysics. The Board also argued Jaramillo was given a full and fair trial on the citation, the Board proceeded as required by law, its decision was supported by the findings, Jaramillo I rejected Jaramillo's claim of exemption, and substantial evidence supported the Board's finding that Jaramillo advertised geophysical services to the public.
G. Court's Denial of the Petition
The court denied Jaramillo's petition following the issuance of a tentative ruling and the presentation of oral argument. The court found the Board's decision was supported by its findings, which in turn were supported by substantial evidence; Jaramillo was not denied a fair trial; he had failed to show the Board did not proceed as required by law; and the Board had jurisdiction to issue the citation in light of the Board's finding that Jaramillo was not exempt from licensure. This appeal followed.
DISCUSSION
I.
STANDARD OF REVIEW
Jaramillo first contends the Board's administrative decision affected his "fundamental right" to operate his business, and thus the court committed reversible error when it failed to apply the independent judgment standard of review. In Jaramillo I this court considered and rejected this identical contention. (Jaramillo I, supra, 136 Cal.App.4th at pp. 887-891.)
A. Applicable Legal Principles
"If, in an administrative mandamus case, the underlying administrative decision 'substantially affects a fundamental vested right, the trial court, in determining under [Code of Civil Procedure] section 1094.5 whether there has been an abuse of discretion because the findings are not supported by the evidence, must exercise its independent judgment on the evidence and find an abuse of discretion if the findings are not supported by the weight of the evidence.' [Citations.] [¶] If the administrative decision does not substantially affect a fundamental vested right, the trial court considers only whether the findings are supported by substantial evidence in the light of the whole record. [Citations.]" (Jaramillo I, supra, 136 Cal.App.4th at pp. 888-889.)
B. Analysis
Here, as he did in Jaramillo I, Jaramillo relies on Goat Hill Tavern, supra, 6 Cal.App.4th at page 1529 for the proposition that he has a fundamental vested right to operate his business, and thus the court committed reversible error when it found that no fundamental right was implicated in this case and failed to apply the independent judgment standard of review. Jaramillo's reliance on Goat Hill Tavern is misplaced for the following reasons that we explained in Jaramillo I, supra, 136 Cal.App.4th at pages 889-891.
In Goat Hill Tavern, a tavern that had been in continuous operation for 35 years and had existed as a legal nonconforming use, sought a writ of administrative mandamus ordering the City of Costa Mesa to set aside its denial of the tavern owner's application for renewal of the tavern's six-month conditional use permit, which had allowed the tavern to operate a game room it had constructed in an adjoining commercial space without a building permit or land use approval. (Goat Hill Tavern, supra, 6 Cal.App.4th at pp. 1522-1523.) Finding that the tavern owner, who had invested almost $2 million in refurbishing the property, had a vested property right, the trial court applied the independent judgment test, found the city's decision to deny renewal of the permit was not supported by the evidence, and granted the writ. (Id. at pp. 1523, 1525.) The city appealed, contending the trial court applied an incorrect standard of review, the owner had no fundamental vested right in the tavern, and thus the trial court's review should have been limited to a determination of whether substantial evidence supported the city's decision. (Ibid.)
Affirming the judgment granting the writ of mandate, the Court of Appeal held that the rights affected by the city's refusal to renew the tavern's conditional use permit were "sufficiently personal, vested and important to preclude its extinction by a nonjudicial body." (Goat Hill Tavern, supra, 6 Cal.App.4th at p. 1529.) Rejecting the city's contention that the tavern owner's right to continued operation of his business was not a fundamental vested right, the Court of Appeal characterized the owner's right as "the right to continue operating an established business in which he has made a substantial investment." (Ibid.) The court explained, however, that the facts of the case were "unique," and its decision was not based solely on the fact that the tavern was an established business in which the owner had made a substantial investment. Noting that "cases applying the independent judgment test in land use matters are few," the court stated, "we uphold its application here because of the unique facts presented. We might conclude differently were this, as the city attempts to suggest, a simple case of a property owner seeking a conditional use permit to begin a use of property. But it is not. Rather, [the tavern] is an existing business and a legal nonconforming use." (Id. at pp. 1529-1530, italics added.) The court then quoted O'Hagen v. Board of Zoning Adjustment (1971) 19 Cal.App.3d 151, 158, with approval for the proposition that "'[w]here a permit has been properly obtained and in reliance thereon the permittee has incurred material expense, he acquires a vested property right to the protection of which he is entitled.'" (Goat Hill Tavern, supra, 6 Cal.App.4th at p. 1530, italics added.)
The Goat Hill Tavern court emphasized that its decision to set aside the city's denial of the permit renewal application was based on the fact that the tavern had operated legally for many years, stating: "By simply denying renewal of its conditional use permit, the city destroyed a business which has operated legally for 35 years. The action implicates a fundamental vested right of the property owner, and the trial court was correct in applying the independent judgment test." (Goat Hill Tavern, supra, 6 Cal.App.4th at p. 1531, italics added.)
In Jaramillo I, Jaramillo asserted he had a fundamental vested right to continue operating his business because he "ha[d] spent [12] years building and successfully operating his business in which he has made a substantial investment in time and resources." (Jaramillo I, supra, 136 Cal.App.4th at p. 891.) Jaramillo continues to maintain that he has a fundamental vested right to continue operating his business.
Here, however, unlike the tavern owner in Goat Hill Tavern, Jaramillo has not shown and cannot show (for reasons we shall explain, post, in concluding that substantial evidence supports the court's decision) that he has operated his water locating business legally. Goat Hill Tavern, the principal authority on which he relies, is thus distinguishable. Jaramillo does not have a fundamental vested right to continue operating his business illegally. We conclude the court did not err by applying the substantial evidence, rather than the independent judgment, standard of review.
II.
CLAIM THAT SAWYER COMMITTED PERJURY
Jaramillo next asserts that even if the court properly applied the substantial evidence test, there is no substantial evidence to support the court's decision upholding the Board's decision because the Board's expert witness, Sawyer, "offered perjurious testimony when he stated that 'I am not with the [G]eology Board.'" We reject this assertion.
The record shows that Sawyer testified at the September 10, 2004 evidentiary hearing conducted by the ALJ in this matter. The reporter's transcript of that hearing shows the following exchange took place between Jaramillo's attorney, Charles Richmond, and Sawyer:
"[Sawyer]: I don't know. I'm not with the Department of Consumer Affairs.
"[Sawyer]: I said, I don't know. I'm not with the Geology Board." (Italics added.)
At the September 2006 hearing on his petition, Jaramillo quoted the foregoing excerpt in support of his claim that Sawyer, as the Board's expert witness, "gave perjurious testimony." Jaramillo then stated to the court: "The proceedings were held in September 2004. The prior April in 2004 and a month after the proceedings in November, the Board had meetings, and in the minutes it identified [Sawyer] was present in the minutes, and he was identified as Tony Sawyer, Chair, Technical Advisory Committee. [¶] Witness for the Board, [Sawyer], lied under oath, made with the consciousness that it was false to evade questioning by my attorney."
In his appellant's opening brief, Jaramillo repeats his claim that Sawyer gave "perjurious testimony" during the September 2004 evidentiary hearing when Sawyer said "I'm not with the Geology Board," and asserts "the Court should have impeached" Sawyer and the Board's counsel "should have removed his witness." Jaramillo claims either that Sawyer's expert testimony should have been excluded, or that Sawyer was so lacking in credibility that the ALJ, the Board and the court should have ignored his testimony and found the evidence was insufficient to sustain the Board's citation against Jaramillo. In his appellant's reply brief, Jaramillo complains that the Board's decision was "grounded . . . on [] the 'expert' testimony of one who committed perjury[,]" and asserts that Sawyer's testimony was given "excessive weight."
In support of his perjury claim, Jaramillo quotes in his appellant's opening brief the portion of page 7 of the minutes of the Board's September 12, 2003 meeting that refers to members of the Board's Technical Advisory Committee and states, "Groundwater - Tony Sawyer[,]" indicating that Sawyer was a member of the Board's Technical Advisory Committee.
The minutes of the Board's September 12, 2003 meeting do indicate that Sawyer was a member of the Board's Technical Advisory Committee at that time. However, as already noted, the evidentiary hearing before the ALJ was held in this matter on September 10, 2004, almost a year later. Jaramillo has not cited any evidence in the record that shows Sawyer was a member of the Board on that date. His claim that Sawyer committed perjury is unsupported. Even if Jaramillo had shown that Sawyer was a member of the Board when he testified in this matter, it would go to the weight of Sawyer's testimony, not its admissibility. Under the applicable substantial evidence standard of review, we do not reweigh the evidence. (Ghilotti Construction Co. v. City of Richmond (1996) 45 Cal.App.4th 897, 903.)
III.
JARAMILLO'S CLAIM HE WAS DENIED A FAIR HEARING
Jaramillo also contends he was denied a fair hearing in that the citation failed to comply with the requirements of Government Code section 11503 and the Board failed to provide adequate notice of the charges against him. Specifically, he complains that the citation only charged him with violating sections 7832 and 7872(a), but those sections are "incomplete 'in and of themselves' as violation Statutes because they both request[] 'within themselves' other Provisions that need to be violated[.]" He maintains that because section 7832 contains the phrase "subject to the provisions of this chapter" and section 7872(a) contains the phrase "according to the provisions of this chapter," both sections "are requesting other Provisions besides themselves"; and those "other Provisions" are sections 7830.1 and 7835.1, which should have been, but were not, identified in the citation. We conclude the citation complied with the requirements of Government Code section 11503 by clearly setting forth the alleged violations both by code section and by description of their factual bases, thereby adequately notifying Jaramillo of the charges against him.
"Section 11503 of the Government Code is one provision of the legislation more commonly known as the Administrative Procedures Act (APA) (Gov. Code, § 11500 et seq.). It describes the required content of a charging document known as an 'accusation.'" (Wilmot v. Commission on Professional Competence (1998) 64 Cal.App.4th 1130, 1141.) Government Code section 11503 provides in part: "A hearing to determine whether a right, authority, license or privilege should be revoked, suspended, limited or conditioned shall be initiated by filing an accusation. The accusation shall be a written statement of charges which shall set forth in ordinary and concise language the acts or omissions with which the respondent is charged, to the end that the respondent will be able to prepare his defense. It shall specify the statutes and rules which the respondent is alleged to have violated, but shall not consist merely of charges phrased in the language of such statutes and rules." (Italics added.)
Although the language of Government Code section 11503 sets forth the pleading requirements for an "accusation" to initiate a disciplinary proceeding against a licensed professional, it is also applicable to citations for unlicensed conduct. Witkin explains that the APA's "formal hearing provisions (Govt.C. 11500 et seq.) apply to [¶] . . . [a]ny state agency as determined by the statutes relating to that agency. [Citations.]." (9 Witkin, Cal. Procedure (4th ed. 1997) Administrative Proceedings, § 79, p. 1128.) Section 148 authorizes "[a]ny board within the department" (i.e., within the Department of Consumer Affairs) to "establish, by regulation, a . . . system for the issuance of an administrative citation to an unlicensed person who is acting in the capacity of a licensee or registrant under the jurisdiction of that board." (Italics added; see § 23 ["'Department,' unless otherwise defined, refers to the Department of Consumer Affairs"].) Here, the record shows the Board is an agency of the Department of Consumer Affairs.
As Government Code section 11503 required, the citation issued by the Board in this matter was a written statement of charges set forth in ordinary and concise language that specified the statutes Jaramillo allegedly violated, described the acts that constituted the violations, and was sufficient to enable him to prepare a defense. The first paragraph of the citation plainly specified Jaramillo's alleged violations: "The [Board] received a complaint against you concerning advertising to practice geophysics in California. After an investigation of the complaint filed against you, it has been determined that you were in violation [of] Business and Professions Code section 7872(a) (practice without legal authorization) and section 7832 (offering to practice geophysics without a license to practice geophysics)."
Although the citation expressly charged Jaramillo with a "violation" of both section 7832 and section 7872(a), we construe the foregoing citation language in light of the citation's description of his violating conduct to be both an allegation that Jaramillo was a person subject to the provisions of the Act within the meaning of section 7832 (see fn. 2, ante), and an allegation that Jaramillo violated section 7872(a) (see fn. 3, ante) by practicing or offering to practice geophysics for others in California without legal authorization. In its description of Jaramillo's alleged violation of the Act, the citation plainly and concisely stated: "[Jaramillo] offered to practice geophysics in the [Country Journal], October 26─November 1, 2003 issue. The aforementioned advertisement placed by [Jaramillo] demonstrate[s] that [Jaramillo] offered to practice . . . geophysics in the State of California. Consequently, [Jaramillo] violated [sections] 7832 and 7872(a), which constituted grounds for disciplinary action under [section] 7872(a). [¶] Board records show that [Jaramillo] has not held registration as a geologist, geophysicist or professional engineer in the State of California on or about the times of the advertisements. Therefore, at all times relevant [Jaramillo] was not licensed to practice geophysics or offer to practice geophysics for others in the State of California." In its decision the Board sustained the citation, finding that Jaramillo practiced or offered to practice geophysics without a license and without legal authorization.
We conclude the citation provided to Jaramillo adequate notice in ordinary and concise language that the Board was charging under section 7832 that he was a person subject to the provisions of the Act, and that he had violated section 7872(a) by placing his advertisement in the October 26─November 1, 2003 issue of the Country Journal when he was not registered as a geologist, geophysicist or professional engineer in California. This information was sufficient to enable Jaramillo to prepare a defense.
We reject Jaramillo's contention that because section 7832 contains the phrase "subject to the provisions of this chapter" and section 7872(a) contains the phrase "according to the provisions of this chapter," those sections "request[] other Provisions besides themselves[,]" and thus the citation filed against him in this matter failed to comply with Government Code section 11503 because it did not also charge him with a violation of sections 7830.1 and 7835.1 (discussed, post). The references to "provisions of this chapter" in section 7832 and 7872(a) do not mean that these sections alone are insufficient to support a legally adequate charge for purposes of Government Code section 11503. In Jaramillo I, we construed a citation allegation that Jaramillo committed a "violation" of section 7832 to be an allegation that he was a person subject to the provisions of the Act within the meaning of that section. (Jaramillo I, supra, 136 Cal.App.4th at p. 895.) There, as here, the alleged violation of the Act was a violation of section 7872(a), which under the plain language of that statute consists in the absence of an "exempt[ion] from registration under this chapter" of either the practice of, or the offer to practice, geophysics for others in California without legal authorization. One may be charged under section 7872(a) with the unlicensed practice of geophysics, or the offer to practice geophysics without a license, without additional charges alleging separate violations of other code sections.
In the interest of clarity, we reiterate that section 7832 provides: "Any person, except as in this chapter specifically exempted, who shall practice or offer to practice geology or geophysics for others in this state is subject to the provisions of this chapter." (Italics added.) Section 7872(a) provides: "Every person is guilty of a misdemeanor and for each offense of which he is convicted is punishable by a fine of not more than one thousand dollars ($1,000) or by imprisonment not to exceed three months, or by both fine and imprisonment: [¶] (a) Who, unless he is exempt from registration under this chapter, practices or offers to practice geology or geophysics for others in this state according to the provisions of this chapter without legal authorization." (Italics added.)
We also reject Jaramillo's unsupported claim that the citation, in order to be valid under Government Code section 11503, should have alleged a violation of sections 7830.1 and 7835.1. The reference to "provisions of this chapter" (i.e., Chapter 12.5, see fn. 2, ante) in section 7872(a) is a reference to a number of other code sections other than sections 7830.1 and 7835.1, such as section 7802.1, which defines the term "geophysics", and section 7804.1, which defines the term "professional geophysicist." A reference to either section 7830.1 or section 7835.1 in the citation issued against Jaramillo was not required, and there was no factual basis to support an allegation that he had violated their provisions. Section 7830.1 pertains to the unlawful use of the seal or stamp of a registered geophysicist. Section 7835.1 pertains to the preparation and signing of geophysical documents. Here, as already discussed, the citation alleged Jaramillo violated section 7872(a) by placing his advertisement in the Country Journal.
Section 7802.1 provides: "'Geophysics,' as used in this chapter, refers to that science which involves study of the physical earth by means of measuring its natural and induced fields of force, including, but not limited to, electric, gravity, and magnetic, and its responses to natural and induced energy and the interpreting of these measurements and the relating of them to the physics of the earth."
Section 7804.1 provides: "Only a person registered as a geophysicist under the provisions of this chapter shall be entitled to take and use the title 'professional geophysicist.' Only a person registered as a geophysicist and certified under the provisions of this chapter shall be entitled to take and use the title of a registered certified specialty geophysicist."
Section 7830.1 provides: "After one year following the effective date of this section, it shall be unlawful for anyone other than a geophysicist registered under this chapter to stamp or seal any plans, specifications, plats, reports, or other documents with the seal or stamp of a registered geophysicist, professional geophysicist, or registered certified specialty geophysicist, or to use in any manner the title 'registered geophysicist,' 'professional geophysicist,' or the title of any registered certified specialty geophysicist unless registered, or registered and certified, under this chapter." (Italics added.)
Section 7835.1 provides: "All geophysical plans, specifications, reports, or documents shall be prepared by a professional geophysicist, registered certified specialty geophysicist, professional geologist, registered certified specialty geologist, or by a subordinate employee under his or her direction. In addition, they shall be signed by the professional geophysicist, registered certified specialty geophysicist, professional geologist, or registered certified specialty geologist, or stamped with his or her seal, either of which shall indicate his or her responsibility for them." (Italics added.)
In sum, the citation complied with the requirements of Government Code section 11503, and Jaramillo was not denied a fair trial.
IV.
CLAIM OF EXEMPTION
Jaramillo also contends that notwithstanding the testimony of the Board's expert witness (Sawyer) to the contrary, his own testimony established he was exempt from licensure under section 3003(e) of the regulations because the services he performed were nonprofessional. Jaramillo's contention is unavailing.
In Jaramillo I this court considered and rejected this same contention. (Jaramillo I, supra, 136 Cal.App.4th at p. 894.)
The citation charged Jaramillo with offering to practice geophysics without legal authorization in violation of section 7872(a). For purposes of the Act, the term "geophysics" is statutorily defined as "that science which involves study of the physical earth by means of measuring its natural and induced fields of force, including, but not limited to, electric, gravity, and magnetic, and its responses to natural and induced energy and the interpreting of these measurements and the relating of them to the physics of the earth." (§ 7802.1, italics added.)
Section 3003(e) of the regulations defines the term "professional geophysical work" as "work performed at a professional level rather than at a subprofessional or apprentice level and requires the application of scientific knowledge, principles and methods to geophysical problems through the exercise of individual initiative and judgment in investigating, measuring, interpreting and reporting on the physical phenomena of the earth." That subdivision also provides that the term "professional geophysical work" does not include "nonprofessional work," which it defines as "activities wherein the analysis or interpretation of geophysical or geological information is lacking." Section 3003(e) further provides that the term "professional geophysical work" does not include "engineering disciplines and other physical sciences" in which "geophysical or geological investigation, analysis and interpretation are minimal or lacking." (Italics added.)
Section 3003(e) of the regulations provides: "'Professional geophysical work' is work performed at a professional level rather than at a subprofessional or apprentice level and requires the application of scientific knowledge, principles and methods to geophysical problems through the exercise of individual initiative and judgment in investigating, measuring, interpreting and reporting on the physical phenomena of the earth. Implicit in this definition is the recognition of professional responsibility and integrity and the acknowledgment of minimal supervision. [¶] 'Professional geophysical work' specifically does not include activities wherein the analysis or interpretation of geophysical or geological information is lacking. Such nonprofessional work . . . would encompass lesser forms of employment in field parties, the manufacture, assembly or maintenance and repair of geophysical instruments and equipment, computer programming, data processing or retrieval and routine activities normally performed by a technician in acquiring and reporting on geophysical information where the elements of initiative, scientific judgment and decision making are absent. It also does not include those engineering disciplines and other physical sciences wherein geophysical or geological investigation, analysis and interpretation are minimal or lacking." (Italics added.)
Here Jaramillo, who did not present any expert witness testimony at the evidentiary hearing, testified he believed he was exempt from licensure under section 3003(e) of the regulations when he advertised because he was doing "minimal" analysis and interpretation. On appeal, however, Jaramillo essentially ignores the substantial evidence that supports the Board's finding that his "geophysical investigation, analysis and interpretation" were "far from minimal[,]" and thus his claim to be exempt from licensure under section 3003(e) of the regulations was "not well taken." The Board presented evidence that the text of Jaramillo's advertisement in the Country Journal was "www.WaterLocating.Com Geophysics Water Wells [telephone no.]." (Italics added.)
In addition, Sawyer, the California registered geologist and certified hydrogeologist who testified as an expert witness on behalf of the Board, stated that he looked at Jaramillo's Web site and advertisement. Sawyer opined that Jaramillo was implying therein that he was using geophysics to locate water wells, and he was soliciting to provide geophysical services. Sawyer testified the Web site discussed the methodologies Jaramillo was using and indicated Jaramillo was using a geophysical method. Specifically, he stated the Web site showed Jaramillo was practicing geophysics because he was gathering data "to make an interpretation of what the subsurface looks like down to 600 to [1,000] feet." Sawyer opined that Jaramillo was not exempt from licensure under section 3003(e) of the regulations because Jaramillo was offering to perform a geophysical survey, collect data, interpret the data, and make a determination as to where there was ground water in the subsurface. This, he concluded, constituted more than "minimal" interpretation and analysis within the meaning of section 3003(e) of the regulations.
Jaramillo's own testimony shows that he engaged in geophysical investigation, analysis and interpretation that were more than "minimal," and thus that his work was nonexempt professional geophysical work for purposes of section 3003(e) of the regulations. He testified that he uses a proprietary electronic "black box" instrument that measures a reflection "within the subsurface of the earth" of an electric and magnetic energy pulse that the instrument "shoot[s]" into the ground, and prints out a black and white picture on Jaramillo's laser printer. From the picture he "can tell whether there is a void there or porous and hard rock." He acknowledged that he figured out how to use the instrument by reading a manual that came with the instrument.
V.
LACK OF CITATION TO SAN DIEGO COUNTY LAW
Jaramillo next contends the citation was "deficient" because it failed to cite a "local San Diego Jurisdictional Rule of Law that governs [Jaramillo's] work activity." Stating that the Board's "raw evidence must have legal relevance and be connected to rules of law[,]" Jaramillo asserts that "[o]ne of the two necessary rules[] is a local San Diego County jurisdictional law that governs [his] specific work activity. San Diego has never enacted a rule of law for water locating."
Jaramillo's contentions are unavailing because they are based on the false premise that the Board has no authority to issue a citation to cease and desist the unlicensed practice of geophysics in California unless the Board cites a local San Diego County law that governs the unlicensed activity. Jaramillo has not, and cannot, cite any legal authority that supports his contention. Under the Act, the Board is expressly authorized to "adopt, amend or repeal rules and regulations to carry out the provisions of this chapter." (§ 7818.) Section 3062 of the regulations authorizes the Board's executive officer to "issue citations containing orders of abatement or administrative fines pursuant to Business and Professions Code sections 148 and 149 against persons acting in the capacity of or engaging in the practice of a . . . geophysicist . . . within this state without registration or certification in any discipline . . . geophysicist . . . ." (See fn. 5, ante.) Section 3062.1 of the regulations, which governs the Board's assessment of administrative fines, authorizes (with exceptions specified in subd. (c) of that section) the assessment of an administrative fine in an amount up to $2,500 with respect to any violation of (among other things) section 7872(a) (see fn. 3, ante). The Board correctly argues that "[t]here is no requirement for a San Diego County law to be in place for the Board to issue a citation to cease and desist illegal activity for unlicensed practice and advertising of geology and geophysics."
Section 3062.1, subdivision (b) of the regulations provides: "In no event shall the administrative fine be assessed in an amount greater than two thousand five hundred dollars ($2,500) for each inspection or each investigation made with respect to any violation of the following provisions: [¶] Business and Professions Code section and Description[:] [¶] . . . [¶] 7832 Offers to Practice or Practices Geology or Geophysics for Others[;] [¶] . . . [¶] 7872(a) Unregistered Practice . . . ."
VI.
OTHER CLAIMED ERRORS OF LAW
Last, Jaramillo contends the Board's decision is not supported by its findings, and it fails to satisfy the fact-specific findings requirement of Topanga, supra, 11 Cal.3d 506. We reject these contentions.
A. The Board's Factual Findings Support its Decision
The Board adopted the ALJ's proposed decision, which set forth numerous findings of fact that supported the decision to uphold the citation. In factual finding No. 2, for example, the Board found that Jaramillo did not hold any registration as a geologist, geophysicist or professional engineer in California and had not held such a registration at any relevant time, and thus he was not authorized to practice geophysics or to offer to practice geophysics for others in the state.
In factual finding No. 3, the Board found that Jaramillo's advertisement in the Country Journal demonstrated that he offered to practice geophysics in California; and Jaramillo's testimony and the information he published on his Web site demonstrated that he "conducted analyses and made interpretations, conclusions, and recommendations all of which constituted the professional practice of geophysics."
The Board's factual finding No. 4 rejected Jaramillo's testimony that he was performing only nonprofessional services and was exempt from licensing. Specifically, the Board found: "Expert testimony by [Sawyer], a well-credentialed and qualified geologist in California, established that what [Jaramillo] does is the practice of geophysics and is not subject to any exemption from licensure and registration. His expert testimony, and the reasoning supporting his opinions, were overwhelming and very persuasive. The evidence is clear that [Jaramillo] is indeed engaging in the unlicensed practice of geophysics. Such unlicensed practice is a threat to the public, particularly in light of the fact that [Jaramillo] does not have the training or education required for licensure." (Italics added.)
The Board's factual finding No. 7 also rejected Jaramillo's claim of exemption: "[Jaramillo's] claim to be exempt under [section 3003(e) of the regulations] is not well taken. The essential problem for [Jaramillo] is that he holds himself out as having expertise. His website is a detailed exposition of his methods and uses the jargon of science. [Jaramillo] does not represent to the general public that he simply has a little black box that takes a picture of the subsurface of the earth. [Jaramillo] denies using any secret formula or scientific method yet his entire website uses the language of geophysics to try to sell his expertise. He speaks in the language of science and purports to have skill in locating underground water. He suggests in his advertisement and his website that he uses or relies on geophysical methods in locating underground water. What [Jaramillo] purports to do clearly involves the analysis and interpretation of geophysical or geological information. Likewise the geophysical investigation, analysis and interpretation are far from minimal." (Italics added.)
The foregoing factual findings overwhelmingly support the Board's decision.
B. Topanga Requirements
Last, we reject Jaramillo's contention that the Board's decision fails to satisfy the requirements of Topanga, supra, 11 Cal.3d 506 because "the evidence essentially consisted of nothing more than the testimony of a perjurious witness[,]" and thus it is contrary to the weight of the evidence. In Topanga the California Supreme Court held that in reviewing the proceedings of an administrative board by means of administrative mandamus, "a reviewing court must determine whether substantial evidence supports the findings of the administrative board and whether the findings support the board's action." (Id. at p. 510, fn. omitted.)
We have already concluded that the Board's findings support its decision to uphold the citation. We also conclude that substantial evidence supports the Board's findings. The "perjurious witness" to whom Jaramillo refers is Sawyer. We have already concluded that Jaramillo's claim that Sawyer committed perjury is unsupported.
Sawyer's expert witness testimony, Jaramillo's own testimony, and the text of Jaramillo's advertisement in the Country Journal all constitute substantial evidence that supports the Board's findings. During the evidentiary hearing, Jaramillo admitted he was not a licensed geophysicist or geologist; he has never taken a college course in geophysics, geology or hydrogeology; and he has not worked under a licensed geologist or geophysicist. Jaramillo's advertisement in the Country Journal indicated he practiced geophysics, stating: "www.WaterLocating.Com Geophysics Water Wells [telephone no.]." (Italics added.) Sawyer testified Jaramillo's Web site showed Jaramillo was practicing geophysics. Sawyer opined that Jaramillo was not exempt from licensure under section 3003(e) of the regulations because Jaramillo offered to perform a geophysical survey, collect data, interpret the data, and make a determination as to where there was ground water in the subsurface, and this constituted more than "minimal" interpretation and analysis. In sum, the record shows that the requirements of Topanga, supra, 11 Cal.3d 506 have been satisfied.
DISPOSITION
The judgment is affirmed. The Board shall recover from Jaramillo its costs on appeal.
WE CONCUR: HALLER, J., O'ROURKE, J.