51 ... 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. . . .”50 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. 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 80 Ibid, at 159. Stone v. Board of Examiners and Registrars of Architects of the District of Columbia, 249 F 2d 104, 101 App DC 348 (1957). Ibid. 56 118 A 2d 801 (1955). 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 57 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. 59 60 There are a few strange statutory requirements, and the case of Hendelberg v. Goldstein 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, "Ibid, at 802. Citations omitted. 275 F 2d 1, 107 App DC 113 (1959). "Then §§35-462 and 35-427, D.C. Code (1951). "2 Davis, Administrative Law Treatise §16.05 (1958). *211 F 2d 428, 83 App DC 395 (1954). 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 o1 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 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!" " 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. "Fitzgerald's Rubaiyat of Omar Khayyam Mr Dowdy. Any questions? Mr. WHITENER. Is there no prescribed administrative procedure for any of the agencies in the District of Columbia? Mr. SCANLAN. Not quite. In some of the departments such as the Department of Licenses, there are some rules. As to the Board of Appeals and Review, there is a set of rules promulgated by the Commissioners and they have done a pretty good job. But even so we have this problem: When the record comes from the particular division in the Department of Licenses and goes to the Board of Appeals and Review, some confidential material or data will go to the corporation counsel or to the assistant corporation counsel who is to handle that case. He need not make that a part of the record, but it goes to him and it indicates the problem of lack of disinterestedness. The record goes up but not all of the facts necessarily get in the public record. This is the kind of thing for which there is no excuse and this is the kind of thing that even if there was nothing wrong— and I am not saying there is this is the kind of public impression we do not think is good, and our bill, while it may not eliminate it, it would curtail it. Mr. WHITENER. I was interested, in glancing through your statement, in what you had to say about declaratory orders. Would this language be broad enough that it might give rise to frivolous proceedings for declaratory orders? Mr. SCANLAN. It is always possible. As we originally had this it could be argued that the refusal to issue a declaratory order could be judicially reviewed. We provided "for the review of orders and decisions in contested cases, except that the refusal of the Commissioners or of any agency to issue a declaratory order shall not be subject to review." We thought that would protect the Commissioners from a flood of petitions for declaratory orders. Mr. WHITENER. As you know, the Uniform Declaratory Order Act put certain limitations. Mr. SCANLAN. That is right. Mr. WHITENER. And going over this hurriedly I did not see any such limitation in section 9 as applies to seeking a declaratory order. Mr. SCANLAN. This is a procedural declaratory order and I really think if the Commissioners reflected on it, this section is something they could use to their benefit if they had a problem in the question of revocation of a license or renewal where they did not want to get into bitter controversy. It is possible this section could be a way out of deciding the particular issue. If they issued a declaratory order that penalized a man, then it could be reviewed. On the other hand, if in their judgment the matter was one that should not be solved this way, where a declaratory order should not be issued, then this section could be used to their benefit. And in view of the fact the denials would not be subject to judicial review, I do not think this opens the Pandora box. Mr. WHITENER. Under the administrative procedure acts of the States do they usually have a provision for declaratory orders by agencies? Mr. SCANLAN. Yes, they do. I have in front of me the Uniform Law Commissioners' Revised Model State Administrative Procedure |