Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BS116670 David P. Yaffe, Judge.
Horton & DeBolt, Laura L. Horton and Michelle E. Diaz for Plaintiff and Appellant.
Carmen A. Trutanich, City Attorney, Claudia McGee Henry, Assistant City Attorney and Brian I. Cheng, Deputy City Attorney, for Defendants and Respondents.
RUBIN, ACTING P. J.
Retired Los Angeles Police Department Sergeant Michael Klein appeals from the police department’s revocation of his Motion Picture/Television Filming Work permit and CCW (carrying a concealed weapon) endorsement. We affirm.
FACTS AND PROCEEDINGS
Los Angeles Municipal Code section 80.03.1 allows retired police officers to provide traffic and crowd control at movie and television filming locations within the City of Los Angeles. A retired officer who performs such work must obtain a Motion Picture/Television Filming Work permit from the Los Angeles Police Department (Department). The permit allows the officer to wear a police uniform at the filming location, but requires him to either cover up or remove his uniform when not at the location. The permit also obligates the officer to comply with the Department’s standards for professionalism to ensure the officer does not discredit himself or the Department.
Appellant Michael Klein is a retired motorcycle officer of the Department. On July 20, 2007, he returned home after working the day as a crowd and traffic control officer at a filming location. Discovering upon arriving home that he needed to refill his prescription pain medication, he rode his motorcycle to his local drug store. Still in uniform without a cover-up, he strode into the store and walked to the pharmacy counter in the rear. Learning that he needed to wait several days for his refill, he cursed at the female pharmacist who denied him an early refill, calling her a “bitch” and a “cunt.” Another pharmacy employee, who surmised appellant was a Los Angeles police officer because of his uniform, complained to the Department about appellant’s outburst.
The Department initially suspended, and then two months later purported to revoke, appellant’s movie and television work permit while it investigated the complaint. Following its investigation, the Department in May 2008 convened a board of rights hearing. The board’s hearing officer (then-Deputy Chief, and now Chief, Charlie Beck) credited the evidence of appellant’s misconduct while in uniform at the pharmacy. Based on that misconduct, the hearing officer recommended that the Department revoke appellant’s permit. On June 5, the Department adopted the recommendation. Eight days later, the Department convened a hearing on the Department’s endorsement of appellant’s CCW (carrying a concealed weapon) permit. Relying on the transcript from the board of rights hearing, the Department revoked its endorsement of appellant’s CCW permit.
Appellant filed in superior court a petition for writ of administrative mandamus. He alleged the Department had unlawfully revoked his movie and television work permit and CCW endorsement. He sought a writ directing the Department to reinstate the permit and endorsement. Applying its “independent judgment based upon its independent review of the administrative record, ” the court denied the writ. The court found the administrative record supported the Department’s conclusion that appellant violated the city’s ordinance and Department regulations governing appellant’s conduct while wearing his uniform, thus warranting revocation of his movie and television work permit and CCW endorsement. This appeal followed.
Appellant’s petition also sought return of his “retired officer’s” badge, which the Department had confiscated from him. The trial court ordered the Department to return the badge, the Department complied, and that order is not part of this appeal.
STANDARD OF REVIEW
In a mandamus proceeding, a trial court may reverse an agency’s administrative decision if it finds the agency prejudicially abused its discretion. (Code Civ. Proc., § 1094.5, subd. (b).) The court may find such abuse if the agency’s proceedings did not adhere to the law, the evidence did not support the agency’s findings, or its findings did not support its decision. (Ibid.) If a person’s interest at stake in an administrative proceeding involves a fundamental right, the trial court independently reviews the administrative record and we review the trial court’s judgment for substantial evidence. (Berlinghieri v. Department of Motor Vehicles (1983) 33 Cal.3d 392, 395; MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 217; Fukuda v. City of Angels (1999) 20 Cal.4th 805, 824.) If the person’s interest does not involve a fundamental right, we review the administrative decision for substantial evidence. (Berlinghieri v. Department of Motor Vehicles, supra, at p. 395; Bixby v. Pierno (1971) 4 Cal.3d 130, 144.)
DISCUSSION
Appellant assigns multiple errors by the Department in revoking his permit and endorsement. None of the purported errors merits reversal of the Department’s decisions or of the trial court’s judgment upholding those decisions.
A. Purported Errors in Revoking Appellant’s Movie and Television Work Permit
1. Suspending Permit Before Hearing
Following appellant’s July 2007 pharmacy outburst, the Department suspended, and later revoked, appellant’s movie and television work permit without a hearing pending its investigation of the incident. Appellant asserts, and the Department concedes, the Department violated a city ordinance by revoking his permit without a hearing. The Department’s error became moot, however, when the Department conducted its hearing in May 2008.
The record also indicates that appellant continued working on film sites after he received the Department’s August 2007 suspension letter. He was later directed by a uniformed officer to cease working.
Appellant contends the Department erred by styling the May 2008 hearing as appellant’s “appeal” from revocation of his permit, thus purportedly shifting to him the burden of proving the Department erred by revoking his permit. Not so, for that is not how the May hearing unfolded. The hearing’s order of proof opened with the Department presenting its witnesses to prove its accusations against appellant. The hearing officer allowed appellant to challenge the Department’s evidence and present evidence in his own defense. Apart from the hearing officer calling the hearing an “appeal, ” appellant points to nothing in the record showing the hearing officer placed the burden of proof on appellant. In fact, the hearing officer placed the burden on the Department, writing in his recommendation that the Department revoke the permit that he had found “[b]ased on an examination of all evidence proffered at the hearing, the hearing officer finds by a preponderance of the evidence that there is sufficient cause to support Retired Sergeant Klein’s revocation.... [¶] It is recommended that Retired Sergeant Klein’s Motion Picture Television Filming Work Permit be revoked....” The hearing officer’s reliance on a preponderance-of-evidence standard indicates the hearing officer placed the burden of proof on the Department.
2. Purported Errors Involving Evidence at the Movie and Television Permit Hearing
Appellant contends the Department did not allow him sufficient time to review the evidence against him because the Department gave him some exhibit documents only 45 minutes before the hearing started. Appellant did not object at the hearing to late production of documents, thus forfeiting the point on appeal. (NBS Imaging Systems, Inc. v. State Bd. of Control (1997) 60 Cal.App.4th 328, 336-337 [arguments and facts not asserted in administrative proceedings waived in writ proceeding]; Robinson v. Department of Fair Employment & Housing (1987) 192 Cal.App.3d 1414, 1417.) In any case, the late production was unlikely to have prejudiced appellant because none of the documents could have unfairly surprised him. They were: a letter from the Department to his lawyer; his application for his movie and television work permit; the section of the Department manual covering standards of personal conduct by an officer; photographs of appellant’s motorcycle; and, photocopies of a Vehicle Code section governing lawful colors of lights on vehicles.
Besides appellant’s pharmacy outburst, the Department also alleged appellant had unlawful blue lights on his motorcycle, which is the reason the Department offered evidence involving appellant’s motorcycle and lights. It appears the Department did not sustain that allegation, and, in any case, the hearing officer did not rely on it in recommending that the Department revoke appellant’s movie and television work permit. Thus, we do not consider it in our discussion.
Appellant also contends the Department refused to provide evidence that it offered against him. This contention appears to arise from the Department’s withholding from the administrative record a report by Sergeant Duran, who testified against appellant. Appellant’s contention is not well-taken. The report became an issue in the hearing when Duran began to read from it as he testified. The hearing officer ordered Duran to stop reading it, and Duran complied. As appellant does not accurately characterize the record with assertions such as “Respondents relied upon a report read into the record by Respondent Sgt. Duran (but not turned over at the hearing), ” we pass on his contention as contradicted by the record.
Appellant also contends the hearing officer erred by not administering to Sergeant Duran an oath to tell the truth before Duran testified. Appellant was aware, however, that Duran was not sworn in, but appellant did not object, thus forfeiting the point on appeal. (Tennant v. Civil Service Commission of City of Los Angeles (1946) 77 Cal.App.2d 489, 498 [“Permitting a person to testify [before civil service board] without being sworn is not a jurisdictional matter but is at most a judicial error which cannot be taken advantage of except upon timely objection being made”].) Appellant additionally contends Sergeant Duran ordered him not to contact witnesses before the hearing. Appellant does not, however, cite to any objection by him in the administrative proceedings to any such order, thus forfeiting the point. (NBS Imaging Systems, Inc. v. State Bd. of Control, supra, 60 Cal.App.4th at pp. 336-337.)
Appellant contends insufficient evidence existed to sustain the Department’s allegations against him of misconduct at the pharmacy. According to appellant, the Department offered only hearsay to support its charges. While conceding hearsay evidence is admissible in administrative proceedings, appellant asserts the Department cannot rely solely on hearsay but must corroborate its charges with nonhearsay evidence. (See, e.g., Gill v. Mercy Hospital (1988) 199 Cal.App.3d 889, 910.)
The principal witness against appellant was pharmacy employee Erin Carrott, who did not witness appellant’s profanity-laced outburst. Hence, some of Carrott’s testimony was hearsay, consisting of what other pharmacy employees told her appellant said. Appellant’s contention fails, however, because he ignores other evidence against him, a good deal of which was Carrott’s nonhearsay testimony. She testified, for example, that appellant angrily uttered “that was complete bullshit” as he walked past her while leaving the store. She also testified he was wearing his uniform when she saw him that day, and had worn his uniform during previous visits to the store. Additionally, when she neared the pharmacy counter as appellant was leaving, she saw that other employees appeared to be frightened and that the pharmacist with whom appellant had interacted was particularly upset. Sufficient evidence – both hearsay and nonhearsay – thus existed to support the Department’s allegations against appellant.
This evidence was before the trial court and at the administrative hearing. Thus, whether we review the trial court’s findings (Fukuda v. City of Angels, supra, 20 Cal.4th at p. 824) or the administrative findings (Berlinghieri v. Department of Motor Vehicles, supra, 33 Cal.3dat p. 395), there was substantial evidence to support the administrative decision and the trial court’s judgment.
Appellant asserts the Department’s own “Fact Sheet” found no merit to the Department’s allegations against him. Appellant misreads the Fact Sheet, a two-page document dated two weeks after the hearing describing the history of the administrative proceedings. It opens by summarizing appellant’s employment history and the allegations against him. It proceeds to noting the Department held a hearing, and it closes with “a synopsis of the witness’ responses to the allegations.” Noting that witnesses at the hearing disputed what happened in the pharmacy, the synopsis summarizes appellant’s and Carrott’s testimony. Nowhere does the Fact Sheet conclude, as appellant wrongly states, the Department “had no grounds to sustain the [pharmacy] charges against Appellant.”
Finally, appellant contends the hearing officer was biased against him because then-Police Chief Bratton wanted to shift movie and television film work from retired officers to off-duty active officers. Supporting his contention, appellant submitted to the trial court a transcript of a radio interview of Bratton in which the chief acknowledged his desire for such a shift. The radio interview took place several months after the administrative hearing, and therefore is not part of the administrative record. Thus, appellant cannot rely on it to show error in the administrative hearing.
B. Purported Errors at the CCW Endorsement Hearing
Appellant contends the membership of the three-person panel which heard the Department’s proposed revocation of his CCW endorsement was flawed. Under Penal Code section 12027.1, subdivision (d) governing the hearing, he was entitled to select one panel member. Instead, the Los Angeles police officer’s protective league selected the member for the slot assigned for appellant’s designee. Appellant did not object at the hearing, however, to the board’s composition, thus forfeiting the point. (NBS Imaging Sysems, Inc. v. State Bd. of Control, supra, 60 Cal.App.4th at pp. 336-337.)
Penal Code section 12027.1 states: “(B) An identification certificate authorizing the officer to carry a concealed and loaded firearm or an endorsement on the certificate may be permanently revoked or denied by the issuing agency only upon a showing of good cause. Good cause shall be determined at a hearing, as specified in subdivision (d). [¶]... [¶] (d) Any hearing conducted under this section shall be held before a three-member hearing board. One member of the board shall be selected by the agency and one member shall be selected by the retired peace officer or his or her employee organization. The third member shall be selected jointly by the agency and the retired peace officer or his or her employee organization.”
Appellant contends his failure to object does not waive the error because a party may challenge for the first time on appeal an agency’s action in excess of its jurisdiction. The authority he cites involved challenges to administrative acts in excess of an agency’s subject matter jurisdiction. Appellant cites no authority that the arguable mis-selection of one member of a three-member panel creates a panel that acts beyond its subject matter jurisdiction. Usher v. County of Monterey (1998) 65 Cal.App.4th 210, cited by appellant, is inapt. There, the appellate court reversed an administrative decision where the employee had timely objected to the composition of the hearing panel. (Id. at pp. 217, 219.)
Appellant also complains that Department Commander Cansler served on the panel. Appellant contends Cansler was biased against him because Cansler commanded the Department’s personnel group, and that group’s staff – namely Sgt. Duran – had led the investigation of the pharmacy incident. Appellant did not, however, object at the hearing to Cansler’s presence on the board, thus forfeiting the point, and appellant’s citation to Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, does not preserve the point. Haas held an administrative agency violated a party’s right to due process if the agency hinted at continued future employment for an administrative hearing officer in return for the officer’s favorable decision in a hearing. (Id. at p. 1034.) Those circumstances do not apply here.
Appellant contends the Department failed to give him sufficient notice of the “good cause” for which it sought to revoke the CCW endorsement. He additionally contends the Department compounded its error when it failed to establish “good cause” at the hearing. The Department’s letter to appellant setting the date for the CCW hearing did not identify the Department’s good cause for revocation. The hearing was, however, reasonably understood as a companion proceeding to the movie and television film permit revocation hearing which had taken place about two weeks before the CCW hearing. Thus, despite the letter’s lack of specificity, appellant cannot plausibly assert he did not know what was at issue in the CCW hearing. Moreover, appellant did not object at the CCW hearing to insufficient notice of the grounds on which the Department was moving against him, thus forfeiting the point. And in any case, the CCW panel essentially replayed the movie and film permit hearing by receiving the transcript from the earlier hearing into evidence and then questioning appellant, giving him an opportunity to explain himself. The CCW panel’s examination of appellant particularly probed the pharmacy incident, expressing skepticism of his denials of misconduct. Noting the incongruity of appellant being a long-standing pharmacy customer whom, according to appellant, pharmacy employees turned against for no apparent reason, one panel member asked, “[Y]ou don’t have a rational explanation as to why... at least three of these people would make these... things up; do you?” to which appellant answered, “No.” Given the panel’s evident belief in appellant’s pharmacy misconduct, his failure to address why those events are not “good cause” for revoking the Department’s endorsement of his CCW permit defeats his contention that the revocation was error.
We consider appellant’s “good cause” argument to incorporate a charge that there was insufficient evidence for the Department to refuse the CCW endorsement. As we observed, the Department’s decision was based on the same evidence as in the work permit hearing, and under either standard of review that evidence was legally sufficient. (See fn. 4, ante.)
C. Revocation of Permit and Endorsement Not Abuse of Discretion
Appellant cites general principles of due process and the constitutional ban on excessive fines and cruel and unusual punishment to contend revocation of his permit and endorsement is unlawfully severe. He asserts that denying him his “livelihood” as a movie and television filming officer for what, in his mind, amounts to nothing worse than wearing his uniform into the pharmacy, violates those principles.
We review the severity of appellant’s administrative punishment for abuse of discretion. (Kazensky v. City of Merced (1998) 65 Cal.App.4th 44, 53.) The Department found that appellant’s misconduct went beyond displaying his uniform away from a filming site – it included a profanity-laced outburst against a pharmacy employee. Moreover, appellant’s claimed denial of his livelihood is inflated. He can pursue any gainful employment he chooses, except directing traffic and pedestrians while armed and wearing a Los Angeles police officer uniform. As to that limitation of his livelihood, he cites no authority that the Department abused its discretion when deciding that he, a retired officer who spouted profanities at a pharmacy employee only doing her job, could no longer be entrusted to wear that uniform and carry that gun.
DISPOSITION
The judgment is affirmed. Respondents to recover their costs on appeal.
WE CONCUR: FLIER, J., GRIMES, J.