EDMUND G. BROWN JR., Attorney General KAREN B. …. TC 247615, and ZHILBERT ... Gharabeglou...

Case No. 79/08-76

ACCUSATION

(SMOG CHECK)

In the Matter of the Accusation Against:

SMOG CLINIC 19545 Parthenia Street, Suite 17 Northridge, California 91324 EDWARD BABALIANS, OWNER

Automotive Repair Dealer Registration No. AC 247615 Smog Check Test Only Station License No. TC 247615,

and

ZHILBERT GHARABEGLOU 332 W. Lomita, No. 14 Glendale, California 91204

Advanced Emission Specialist Technician License No. EA 153268

Respondents.

EDMUND G. BROWN JR., Attorney General of the State of California

ALFREDO TERRAZAS Senior Assistant Attorney General

KAREN B. CHAPPELLE, State Bar No. 141267 Supervising Deputy Attorney General

300 So. Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-8944 Facsimile: (213) 897-1071

Attorneys for Complainant

BEFORE THE DEPARTMENT OF CONSUMER AFFAIRS

FOR THE BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

Sherry Mehl ("Complainant") alleges:

PARTIES

1. Complainant brings this Accusation solely in her official capacity as the

Chief of the Bureau of Automotive Repair ("Bureau"), Department of Consumer Affairs.

///

///

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

77

23

24

25

26

27

28

1

PARTIES



Automotive Repair Dealer Registration

2. On or about October 11, 2006, the Bureau issued Automotive Repair

Dealer Registration Number AC 247615 ("registration") to Edward Babalians ("Respondent

Babalians"), doing business as Smog Clinic. The registration will expire on October 31, 2008,

unless renewed.

Smog Check Test Only Station License

3. On or about October 17, 2006, the Bureau issued Smog Check Test Only

Station License Number TC 247615 ("station license") to Respondent Babalians. The station

license will expire on October 31, 2008, unless renewed.

Advanced Emission Specialist Technician License

4. On or about April 3, 2006, the Bureau issued Advanced Emission

Specialist Technician License Number EA 152900 ("technician license") to Edward Babalians

("Respondent Babalians"). The technician license will expire on June 30, 2008, unless renewed.


5. On or about July 1, 2006, the Bureau issued Advanced Emission Specialist

Technician License Number EA 153268 ("technician license") to Zhilbert Gharabeglou

("Respondent Gharageglou"). The technician license will expire on November 30, 2008, unless

renewed.

STATUTORY PROVISIONS

6. Section 9884.7 of the Business and Professions Code ("Code"), states, in

pertinent part, as follows:

(a) The director, where the automotive repair dealer cannot show there was a bona fide error, may refuse to validate, or may invalidate temporarily or permanently, the registration of an automotive repair dealer for any of the following acts or omissions related to the conduct of the business of the automotive repair dealer, which are done by the automotive repair dealer or any automotive technician, employee, partner, officer, or member of the automotive repair dealer.

2

• (1) Making or authorizing in any manner or by any means whatever any

statement written or oral which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.

(4) Any other conduct which constitutes fraud.

(b) Except as provided for in subdivision (c), if an automotive repair dealer operates more than one place of business in this state, the director pursuant to subdivision (a) shall only invalidate temporarily or permanently the registration of the specific place of business which has violated any of the provisions of this chapter. This violation, or action by the director, shall not affect in any manner the right of the automotive repair dealer to operate his or her other places of business.

(c) Notwithstanding subdivision (b), the director may invalidate temporarily or permanently, the registration for all places of business operated in this state by an automotive repair dealer upon a finding that the automotive repair dealer has, or is, engaged in a course of repeated and willful violations of this chapter, or regulations adopted pursuant to it.

7. Code section 9884.13 provides, in pertinent part, that the expiration of a

valid registration shall not deprive the director or chief of jurisdiction to proceed with a

disciplinary proceeding against an automotive repair dealer or to render a decision invalidating a

registration temporarily or permanently.

8. Code section 477 provides, in pertinent part, that "Board" includes

"bureau," "commission," "committee," "department," "division," "examining committee,"

"program," and "agency." "License" includes certificate, registration or other means to engage

in a business or profession regulated by the Code.

9. Section 44002 of the Health and Safety Code provides, in pertinent part,

that the Director has all the powers and authority granted under the Automotive Repair Act for

enforcing the Motor Vehicle Inspection Program.

10. Section 44072.2 of the Health and Safety Code states, in pertinent part:

The director may suspend, revoke, or take other disciplinary action against a license as provided in this article if the licensee, or any partner, officer, or director thereof, does any of the following:

(a) Violates any section of this chapter [the Motor Vehicle Inspection Program (Health and Safi Code, § 44000, et seq.)] and the regulations adopted pursuant to it, which related to the licensed activities.

///

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3

• (c) Violates any of the regulations adopted by the director pursuant to this

chapter.

(d) Commits any act involving dishonesty, fraud, or deceit whereby another is injured.

11. Section 44072.6 of the Health and Safety Code provides, in pertinent part,

that the expiration or suspension of a license by operation of law, or by order or decision of the

Director of Consumer Affairs, or a court of law, or the voluntary surrender of the license shall

not deprive the Director of jurisdiction to proceed with disciplinary action.

12. Section 44072.8 of the Health and Safety Code states:

When a license has been revoked or suspended following a hearing under this article, any additional license issued under this chapter in the name of the licensee may be likewise revoked or suspended by the director.

COST RECOVERY

13. Code section 125.3 provides, in pertinent part, that a Board may request

the administrative law judge to direct a licentiate found to have committed a violation or

violations of the licensing act to pay a sum not to exceed the reasonable costs of the investigation

and enforcement of the case.

SURVEILLANCE OPERATION - SEPTEMBER 11, 2007

14. On or about September 11, 2007, the Bureau performed a videotaped

surveillance at Respondent Babalians's facility. The surveillance operation and information

obtained from the Bureau's Vehicle Information Database ("VID") revealed that from

approximately 1430 hours to 1635 hours, Respondent Gharabeglou performed four (4) smog

inspections that resulted in the issuance of electronic certificates of compliance for the vehicles

set forth in Table One, below, certifying that he had tested and inspected those vehicles and that

the vehicles were in compliance with applicable laws and regulations. In fact, Respondent

Gharabeglou performed the smog inspections using the clean-piping' method by using the tail

pipe emissions of vehicles other than the vehicles being certified in order to issue the certificates

1. "Clean-piping" is sampling the (clean) tailpipe emissions and/or the RPM readings of another vehicle for the purpose of illegally issuing smog certifications to vehicles that are not in compliance or are not present in the smog check area during the time of the certification.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

4

• • of compliance. The vehicles certified were not in the test bay at the time of the smog

inspections. With regard to the 2001 Chevrolet Van set forth in Table One below, Respondent

Gharabeglou used a late model Mercedes Benz in order to perform the OBD II functional test' on

the 2001 Chevrolet Van.

Table One

Date and Test Times

Vehicle Certified Vehicle Actually Tested Cert Issued

9/11/2007 1430 hours

to 1436 hours

1989 Acura Legend Lic. No. 5P0C153

1990 Chrysler TC Lic. No. 3VRJ874

MU635470C

9/11/2007 1540 hours

to 1549 hours

1984 Mercedes Lic. No. 3ABA677

1990 Ford Probe Lic. No. 2THK489

MU635471C

9/11/2007 1554 hours

to 1600 hours

1986 Chevrolet G1500/2500 Chevy Van Lic. No. 6M40932


MU635472C

9/11/2007 1625 hours

to 1635 hours

2001 Chevrolet G1500/2500 Chevy Van Lic. No. 8C87030

Chevrolet Suburban used to clean-pipe Mercedes used to perform OBD II functional test

MU635474C

FIRST CAUSE FOR DISCIPLINE

(Misleading Statements)

15. Respondent Babalians has subjected his registration to discipline under

Code section 9884.7, subdivision (a)(1), in that on or about September 11, 2007, he made

statements which he knew or which by exercise of reasonable care he should have known were

untrue or misleading by issuing the electronic certificates of compliance for the vehicles set forth

in Table One, above, certifying the following:

///

2. On Board Diagnostics (OBD II) functional test is an automated function of the BAR-97 analyzer. During the OBD II functional test, the technician is required to connect an interface cable from the BAR-97 analyzer to a Diagnostic Link Connector (DLC) which is located inside the vehicle. Through the DLC, the BAR- 97 analyzer automatically retrieves information from the Vehicle's on-board computer about the status of the readiness indicators, trouble codes, and the MIL (malfunction indicator light). IF the vehicle fails the OBD H functional test, it will fail the overall inspection.

5

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

• • a. Respondent Babalians certified that the vehicles were in compliance with

applicable laws and regulations when, in fact, the vehicles had been clean-piped.

b. Respondent Babalians certified that the 2001 Chevrolet Van was in

compliance with applicable laws and regulations when, in fact, that vehicle had been clean-piped

and a Mercedes was used to perform the OBD II functional test.

SECOND CAUSE FOR DISCIPLINE

(Fraud)


Code section 9884.7, subdivision (a)(4), in that on or about September 11, 2007, he committed

acts which constitute fraud by issuing the electronic certificates of compliance for the vehicles set

forth in Table One, above, without performing bona fide inspections of the emission control

devices and systems on those vehicles, thereby depriving the People of the State of California of

the protection afforded by the Motor Vehicle Inspection Program.

THIRD CAUSE FOR DISCIPLINE

(Violation of the Motor Vehicle Inspection Program)

17. Respondent Babalians has subjected his station license to discipline under

Health and Safety Code section 44072.2, subdivision (a), in that on or about September 11, 2007,

regarding the electronic certificates of compliance and the vehicles set forth in Table One, above,

he violated sections of that Code, as follows:

a. Section 44012, subdivision (f): Respondent Babalians failed to perform

emission control tests on the vehicles in accordance with procedures prescribed by the

department.

b. Section 44015, subdivision (b): Respondent Babalians issued the

electronic certificates of compliance for those vehicles without properly testing and inspecting

the vehicles to determine if they were in compliance with section 44012 of that Code.

c. Section 44059: Respondent Babalians willfully made false entries for

the electronic certificates of compliance by certifying that the vehicles had been inspected as

required when, in fact, they had not.

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

6

• • FOURTH CAUSE FOR DISCIPLINE

(Violations of Regulations Pursuant to the Motor Vehicle Inspection Program)


Health and Safety Code section 44072.2, subdivision (c), in that on or about September 11, 2007,

regarding the electronic certificates of compliance and the vehicles set forth in Table One, above,

he violated sections of the California Code of Regulations, title 16, as follows:

a. Section 3340.24, subdivision (c): Respondent Babalians falsely or

fraudulently issued the electronic certificates of compliance for those vehicles without

performing bona fide inspections of the emission control devices and systems on the vehicles as

required by Health and Safety Code section 44012.

b. Section 3340.35, subdivision (c): Respondent Babalians issued the

electronic certificates of compliance for those vehicles even though the vehicles had not been

inspected in accordance with section 3340.42 of that Code.

c. Section 3340.42: Respondent Babalians failed to conduct the required

smog tests and inspections on the vehicles in accordance with the Bureau's specifications.

FIFTH CAUSE FOR DISCIPLINE

(Dishonesty, Fraud or Deceit)

19. Respondent has subjected his station license to discipline under Health and

Safety Code section 44072.2, subdivision (d), in that on or about September 11, 2007, regarding

the electronic certificates of compliance and the vehicles set forth in Table One, above, he

committed acts involving dishonesty, fraud or deceit whereby another was injured by issuing the

electronic certificates of compliance for those vehicles when, in fact, the vehicles had not been

properly tested and inspected, thereby depriving the People of the State of California of the

protection afforded by the Motor Vehicle Inspection Program.

SIXTH CAUSE FOR DISCIPLINE

(Violations of the Motor Vehicle Inspection Program)

20. Respondent Gharabeglou has subjected his technician license to discipline

under Health and Safety Code section 44072.2, subdivision (a), in that on or about September 11,

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

7

2007, regarding the electronic certificates of compliance and the vehicles set forth in Table One,

above, he violated sections of that Code, as follows:

a. Section 44012, subdivision (f): Respondent Gharabeglou failed to

determine that all emission control devices and systems required by law were installed and

functioning correctly on those vehicles in accordance with test procedures.

b. Section 44032: Respondent Gharabeglou failed to perform tests of the

emission control devices and systems on those vehicles in accordance with section 44012 of that

Code, in that the vehicles had been clean-piped.

c. Section 44059: Respondent Gharabeglou entered false information into

the Emission Inspection System ("EIS") for the electronic certificates of compliance by certifying

that the vehicles had been inspected as required when, in fact, they had not.

SEVENTH CAUSE FOR DISCIPLINE



under Health and Safety Code section 44072.2, subdivision (c), in that on or about September 11,


above, he violated sections of the California Code of Regulations, title 16, as follows:

a. Section 3340.30, subdivision (a): Respondent Gharabeglou failed to

inspect and test the vehicles in accordance with Health and Safety Code section 44012.

b. Section 3340.41, subdivision (c): Respondent Gharabeglou entered

false information into the EIS for the electronic certificates of compliance by entering vehicle

identification information or emission control information for vehicles other than the vehicles

being tested.

c. Section 3340.42: Respondent Gharabeglou failed to conduct the

required smog tests and inspections on the vehicles in accordance with the Bureau's

specifications.

///

///

8

1

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

• • EIGHTH CAUSE FOR DISCIPLINE



under Health and Safety Code section 44072.2, subdivision (d), in that on or about September 11,

2007, he committed acts involving dishonesty, fraud or deceit whereby another was injured by

issuing the electronic certificates of compliance for the vehicles set forth in Table One, above,

without performing bona fide inspections of the emission control devices and systems on those

vehicles, thereby depriving the People of the State of California of the protection afforded by the

Motor Vehicle Inspection Program.




obtained from the Bureau's VID revealed that from approximately 1700 hours to 1816 hours,

Respondent Gharabeglou performed four (4) smog inspections that resulted in the issuance of the

electronic certificates of compliance for the vehicles set forth in Table Two, below, certifying

that he had tested and inspected the vehicles and that the vehicles were in compliance with

applicable laws and regulations. In fact, Respondent Gharabeglou performed the smog

inspections using the clean-piping method by using the tail pipe emissions of vehicles other than

the vehicles being certified in order to issue the certificates of compliance. The vehicles certified

were not in the test bay at the time of the smog inspections.

Table Two

Date and Test Times


9/12/2007 1700 hours

to 1708 hours

1990 Volkswagen Jetta Lic. No. 2TMN489

Nissan Maxima MU635482C

9/12/2007 1712 hours

to 1722 hours

1984 Ford E150 Club Wagon Lic. No. 2B1(11587


9

9/12/2007 1984 Toyota Pickup Nissan Maxima MU635484C 1739 hours Lic. No. 7H69267

to 1748 hours

9/12/2007 1994 Infinity Q45 Nissan Maxima MU635485C 1809 hours Lic. No. 5RKG437

to 1816 hours

NINTH CAUSE FOR DISCIPLINE



Code section 9884.7, subdivision (a)(I), in that on or about September 12, 2007, he made

statements which he knew or which by exercise of reasonable care he should have known were

untrue or misleading by issuing the electronic certificates of compliance for the vehicles set forth

in Table Two, above, certifying that the vehicles were in compliance with applicable laws and

regulations when, in fact, the vehicles had been clean-piped.

TENTH CAUSE FOR DISCIPLINE

(Fraud)


Code section 9884.7, subdivision (a)(4), in that on or about September 12, 2007, he committed

acts which constitute fraud by issuing the electronic certificates of compliance for the vehicles set

forth in Table Two, above, without performing bona fide inspections of the emission control

devices and systems on those vehicles, thereby depriving the People of the State of California of

the protection afforded by the Motor Vehicle Inspection Program.

ELEVENTH CAUSE FOR DISCIPLINE




regarding the electronic certificates of compliance and the vehicles set forth in Table Two, above,

he violated sections of that Code, as follows:

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 ///

1 0

• • a. Section 44012, subdivision (f): Respondent Babalians failed to perform

emission control tests on the vehicles in accordance with procedures prescribed by the

department.

b. Section 44015, subdivision (b): Respondent Babalians issued the

electronic certificates of compliance for those vehicles without properly testing and inspecting

the vehicles to determine if they were in compliance with section 44012 of that Code.

c. Section 44059: Respondent Babalians willfully made false entries for

the electronic certificates of compliance by certifying that the vehicles had been inspected as

required when, in fact, they had not.

TWELFTH CAUSE FOR DISCIPLINE



Health and Safety Code section 44072.2, subdivision (c), in that on or about September 12, 2007,

regarding the electronic certificates of compliance and the vehicles set forth in Table Two, above,

he violated sections of the California Code of Regulations, title 16, as follows:

a. Section 3340.24, subdivision (c): Respondent Babalians falsely or

fraudulently issued the electronic certificates of compliance for those vehicles without

performing bona fide inspections of the emission control devices and systems on the vehicles as

required by Health and Safety Code section 44012.

b. Section 3340.35, subdivision (c): Respondent Babalians issued the

electronic certificates of compliance for those vehicles even though the vehicles had not been

inspected in accordance with section 3340.42 of that Code.

c. Section 3340.42: Respondent Babalians failed to conduct the required

smog tests and inspections on the vehicles in accordance with the Bureau's specifications.

THIRTEENTH CAUSE FOR DISCIPLINE


28. Respondent has subjected his station license to discipline under Health and

Safety Code section 44072.2, subdivision (d), in that on or about September 12, 2007, regarding

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11

• • the electronic certificates of compliance and the vehicles set forth in Table Two, above, he

committed acts involving dishonesty, fraud or deceit whereby another was injured by issuing the

electronic certificates of compliance for those vehicles when, in fact, the vehicles had not been

properly tested and inspected, thereby depriving the People of the State of California of the

protection afforded by the Motor Vehicle Inspection Program.

FOURTEENTH CAUSE FOR DISCIPLINE



under Health and Safety Code section 44072.2, subdivision (a), in that on or about September 12,

2007, regarding the electronic certificates of compliance and the vehicles set forth in Table Two,

above, he violated sections of that Code, as follows:








the EIS for the electronic certificates of compliance by certifying that the vehicles had been

inspected as required when, in fact, they had not.

FIFTEENTH CAUSE FOR DISCIPLINE



under Health and Safety Code section 44072.2, subdivision (c), in that on or about September 12,


above, he violated sections of the California Code of Regulations, title 16, as follows:



12

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

• • b. Section 3340.41, subdivision (c): Respondent Gharabeglou entered



being tested.



specifications.

SIXTEENTH CAUSE FOR DISCIPLINE



under Health and Safety Code section 44072.2, subdivision (d), in that on or about September 12,

2007, he committed acts involving dishonesty, fraud or deceit whereby another was injured by

issuing the electronic certificates of compliance for the vehicles set forth in Table Two, above,




OTHER MATTERS

32. Under Code section 9884.7, subdivision (c), the director may invalidate

temporarily or permanently or refuse to validate, the registrations for all places of business

operated in this state by Edward Babalians, doing business as Smog Clinic, upon a finding that

he has, or is, engaged in a course of repeated and willful violations of the laws and regulations

pertaining to an automotive repair dealer.

33. Under Health and Safety Code section 44072.8, if Smog Check Test Only

Station License Number TC 247615, issued to Edward Babalians, doing business as

Smog Clinic, is revoked or suspended, any additional license issued under this chapter name of

said licensee, including but not limited to Advanced Emission Technician License Number

EA 152900, issued to Edward Babalians, may be likewise revoked or suspended by the director.

///

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

23

24

25

26

27

28

13

• • 34. Under Health and Safety Code section 44072.8, if Advanced Emission

Specialist Technician License Number EA 153268, issued to Zhilbert Gharabeglou, is revoked or

suspended, any additional license issued under this chapter in the name of said licensee may be

likewise revoked or suspended by the director.

PRAYER

WHEREFORE, Complainant requests that a hearing be held on the matters herein

alleged, and that following the hearing, the Director of Consumer Affairs issue a decision:

1. Temporarily or permanently invalidating Automotive Repair Dealer

Registration Number AC 247615, issued to Edward Babalians, doing business as Smog Clinic;

2. Temporarily or permanently invaliding any other automotive repair dealer

registration issued to Edward Babalians, doing business as Smog Clinic;

3. Revoking or suspending Smog Check Test Only Station License Number

TC 247615, issued to Edward Babalians, doing business as Smog Clinic;

4. Revoking or suspending Advanced Emission Specialist Technician

License Number EA 152900, issued to Edward Babalians;

5. Revoking or suspending any additional license issued under this chapter in

the name of Edward Babalians;


License Number EA 153268, issued to Zhilbert Gharabeglou;


the name of Zhilbert Gharabeglou;

///

///

///

///

///

///

///

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

14

• • 8. Ordering Edward Babalians and Zhilhert Gharabeglou to pay the Bureau

of Automotive Repair the reasonable costs of the investigation and enforcement of this case,

pursuant to Code section 125.3; and,

9. Taking such other and further action as deemed necessary and proper.

DATED: 5/1co /07

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

S Y MEH Chief Bureau of Automotive Repair Department of Consumer Affairs State of California Complainant

035621101A2008 100306

SmogClinic. Acc.wpd

ps (3/13/08)

15

In the Matter of the Accusation Against:

SMOG CLINIC 19545 Parthenia Street, Suite 17 Northridge, California 91324 EDWARD BABALIANS, OWNER

Automotive Repair Dealer Registration No. AC 247615 Smog Check Test Only Station License No. TC 247615,

EDWARD BABALIANS 17230 Chats Worth Street, No. 1 Granada Hills, California 91344


and

ZHILBERT GHARABEGLOU 332 W. Lomita, No. 14 Glendale, California 91204


Case No. 79/08-76

FIRST AMENDED ACCUSATION

(SMOG CHECK)

Respondents.

Sherry Meld ("Complainant") alleges:

• • EDMUND G. BROWN JR., Attorney General

of the State of California GREGORY J. SALUTE

Supervising Deputy Attorney General HELENE E. SWANSON, State Bar No. 130426

Deputy Attorney General 300 So. Spring Street, Suite 1702 Los Angeles, CA 90013 Telephone: (213) 897-8944 Facsimile: (213) 897-1071

Attorneys for Complainant

BEFORE THE DEPARTMENT OF CONSUMER AFFAIRS

FOR THE BUREAU OF AUTOMOTIVE REPAIR STATE OF CALIFORNIA

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1 AG 154

• • PARTIES



Automotive Repair Dealer Registration

2. On or about October 11, 2006, the Bureau issued Automotive Repair

Dealer Registration Number AC 247615 ("registration") to Edward Babalians ("Respondent

Babalians"), doing business as Smog Clinic. The registration was cancelled on December 9,

2008.

Smog Check Test Only Station License

3. On or about October 17, 2006, the Bureau issued Smog Check Test Only

Station License Number TC 247615 ("station license") to Respondent Babalians. The station

license was cancelled on December 9, 2008.


4. On or about April 3, 2006, the Bureau issued Advanced Emission

Specialist Technician License Number EA 152900 ("technician license") to Edward Babalians

("Respondent Babalians"). The technician license will expire on June 30, 2010, unless renewed.


5. On or about July 1, 2006, the Bureau issued Advanced Emission Specialist

Technician License Number EA 153268 ("technician license") to Zhilbert Gharabeglou

("Respondent Gharageglou"). The technician license will expire on November 30, 2010, unless

renewed.

STATUTORY PROVISIONS

6. Section 9884.7 of the Business and Professions Code ("Code"), states, in

pertinent part, as follows:

(a) The director, where the automotive repair dealer cannot show there was a bona fide error, may refuse to validate, or may invalidate temporarily or permanently, the registration of an automotive repair dealer for any of the following acts or omissions related to the conduct of the business of the automotive repair dealer, which are done by the automotive repair dealer or any automotive technician, employee, partner, officer, or member of the automotive repair dealer.

2

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

AG 155

• • (1) Making or authorizing in any manner or by any means whatever any

statement written or oral which is untrue or misleading, and which is known, or which by the exercise of reasonable care should be known, to be untrue or misleading.

(4) Any other conduct which constitutes fraud.

(b) Except as provided for in subdivision (c), if an automotive repair dealer operates more than one place of business in this state, the director pursuant to subdivision (a) shall only invalidate temporarily or permanently the registration of the specific place of business which has violated any of the provisions of this chapter. This violation, or action by the director, shall not affect in any manner the right of the automotive repair dealer to operate his or her other places of business.

(c)Notwithstanding subdivision (b), the director may invalidate temporarily or permanently, the registration for all places of business operated in this state by an automotive repair dealer upon a finding that the automotive repair dealer has, or is, engaged in a course of repeated and willful violations of this chapter, or regulations adopted pursuant to it.

7. Code section 9884.13 provides, in pertinent part, that the expiration of a

valid registration shall not deprive the director or chief of jurisdiction to proceed with a

disciplinary proceeding against an automotive repair dealer or to render a decision invalidating a

registration temporarily or permanently.

8. Code section 477 provides, in pertinent part, that "Board" includes

"bureau," "commission," "committee," "department," "division," "examining committee,"

"program," and "agency." "License" includes certificate, registration or other means to engage

in a business or profession regulated by the Code.

9. Section 44002 of the Health and Safety Code provides, in pertinent part,

that the Director has all the powers and authority granted under the Automotive Repair Act for

enforcing the Motor Vehicle Inspection Program.

10. Section 44072.2 of the Health and Safety Code states, in pertinent part:

The director may suspend, revoke, or take other disciplinary action against a license as provided in this article if the licensee, or any partner, officer, or director thereof, does any of the following:

(a) Violates any section of this chapter [the Motor Vehicle Inspection Program (Health and Saf. Code, § 44000, et seq.)] and the regulations adopted pursuant to it. which related to the licensed activities.

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3 AG 156

• • (c) Violates any of the regulations adopted by the director pursuant to this

chapter.

(d) Commits any act involving dishonesty, fraud, or deceit hereby another is injured.

11. Section 44072.6 of the Health and Safety Code provides, in pertinent part,

that the expiration or suspension of a license by operation of law, or by order or decision of the

Director of Consumer Affairs, or a court of law, or the voluntary surrender of the license shall

not deprive the Director of jurisdiction to proceed with disciplinary action.

12. Section 44072.8 of the Health and Safety Code states:

When a license has been revoked or suspended following a hearing under this article, any additional license issued under this chapter in the name of the licensee may be likewise revoked or suspended by the director.

COST RECOVERY

13. Code section 125.3 provides, in pertinent part, that a Board may request

the administrative law judge to direct a licentiate found to have committed a violation or

violations of the licensing act to pay a sum not to exceed the reasonable costs of the investigation

and enforcement of the case.




obtained from the Bureau's Vehicle Information Database ("VID") revealed that from

approximately 1430 hours to 1635 hours, Respondent Gharabeglou performed four (4) smog

inspections that resulted in the issuance of electronic certificates of compliance for the vehicles

set forth in Table One, below, certifying that he had tested and inspected those vehicles and that

the vehicles were in compliance with applicable laws and regulations. In fact, Respondent

Gharabeglou performed the smog inspections using the clean-piping'- method by using the tail

pipe emissions of vehicles other than the vehicles being certified in order to issue the certificates

1. "Clean-piping" is sampling the (clean) tailpipe emissions and/or the RPM readings of another vehicle for the purpose of illegally issuing smog certifications to vehicles that are not in compliance or are not present in the smog check area during the time of the certification.

4

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

AG 157

• • of compliance. The vehicles certified were not in the test bay at the time of the smog

inspections. With regard to the 2001 Chevrolet Van set forth in Table One below, Respondent

Gharabeglou used a late model Mercedes Benz in order to perform the OBD II functional testa /

on the 2001 Chevrolet Van.

Table One

Date and Test Times


9/11/2007 1430 hours

to 1436 hours

1989 Acura Legend Lic. No. 5P0C153

1990 Chrysler TC Lic. No. 3VRJ874

MU635470C

9/11/2007 1540 hours

to 1549 hours

1984 Mercedes Lie. No. 3ABA677


MU635471C

9/11/2007 1554 hours

to 1600 hours

1986 Chevrolet G1500/2500 Chevy Van Lic. No. 6M40932


MU635472C

9/11/2007 1625 hours

to 1635 hours

2001 Chevrolet G1500/2500 Chevy Van Lic. No. 8C87030

Chevrolet Suburban used to clean-pipe Mercedes used to perform OBD II functional test

MU635474C

FIRST CAUSE FOR DISCIPLINE



Code section 9884.7, subdivision (a)(1), in that on or about September 11, 2007, through his

employee, Respondent Gharabelou, made statements which he knew or which by exercise of

reasonable care he should have known were untrue or misleading by issuing the electronic

certificates of compliance for the vehicles set forth in Table One, above, certifying the following:

///

2. On Board Diagnostics (OBD II) functional test is an automated function of the BAR-97 analyzer. During the OBD II functional test, the technician is required to connect an interface cable from the BAR-97 analyzer to a Diagnostic Link Connector (DLC) which is located inside the vehicle. Through the DLC, the BAR- 97 analyzer automatically retrieves information from the vehicle's on-board computer about the status of the readiness indicators, trouble codes, and the MIL (malfunction indicator light). IF the vehicle fails the OBD II functional test, it will fail the overall inspection.

5 AG 158

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

• • a. Respondent Babalians, through his employee, Respondent Gharabelou,

certified that the vehicles were in compliance with applicable laws and regulations when, in fact,

the vehicles had been clean-piped.

b. Respondent Babalians, through his employee, Respondent Gharabelou,

certified that the 2001 Chevrolet Van was in compliance with applicable laws and regulations

when, in fact, that vehicle had been clean-piped and a Mercedes was used to perform the OBD II

functional test.

SECOND CAUSE FOR DISCIPLINE

(Fraud)



employee, Respondent Gharabelou, committed acts which constitute fraud by issuing the

electronic certificates of compliance for the vehicles set forth in Table One, above, without

performing bona fide inspections of the emission control devices and systems on those vehicles,

thereby depriving the People of the State of California of the protection afforded by the Motor

Vehicle Inspection Program.

THIRD CAUSE FOR DISCIPLINE




through his employee, Respondent Gharabelou, regarding the electronic certificates of

compliance and the vehicles set forth in Table One, above, violated sections of that Code, as

follows:

a. Section 44012. subdivision (D: Respondent Babalians, through his

employee, Respondent Gharabelou, failed to perform emission control tests on the vehicles in

accordance with procedures prescribed by the depaituient.

b. Section 44015. subdivision (b): Respondent Babalians, through his

employee, Respondent Gharabelou, issued the electronic certificates of compliance for those

6

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

AG 159

vehicles without properly testing and inspecting the vehicles to determine if they were in

compliance with section 44012 of that Code.

c. Section 44059: Respondent Babalians, through his employee,

Respondent Gharabelou, willfully made false entries for the electronic certificates of compliance

by certifying that the vehicles had been inspected as required when, in fact, they had not.

FOURTH CAUSE FOR DISCIPLINE


18. Respondent Babalians, through his employee, Respondent Gharabelou,

has subjected his station license to discipline under Health and Safety Code section 44072.2,

subdivision (c), in that on or about September 11, 2007, regarding the electronic certificates of

compliance and the vehicles set forth in Table One, above, he violated sections of the California

Code of Regulations, title 16, as follows:

a. Section 3340.24, subdivision (c): Respondent Babalians, through his

employee, Respondent Gharabelou, falsely or fraudulently issued the electronic certificates of

compliance for those vehicles without performing bona fide inspections of the emission control

devices and systems on the vehicles as required by Health and Safety Code section 44012.

b. Section 3340.35, subdivision (c): Respondent Babalians, through his


vehicles even though the vehicles had not been inspected in accordance with section 3340.42 of

that Code.

c. Section 3340.42: Respondent Babalians, through his employee,

Respondent Gharabelou, failed to conduct the required smog tests and inspections on the

vehicles in accordance with the Bureau's specifications.

FIFTH CAUSE FOR DISCIPLINE



Health and Safety Code section 44072.2, subdivision (d), in that on or about September 11,


7 AG 160

• • above, through his employee, Respondent Gharabelou, committed acts involving dishonesty,

fraud or deceit whereby another was injured by issuing the electronic certificates of compliance

for those vehicles when, in fact, the vehicles had not been properly tested and inspected, thereby

depriving the People of the State of California of the protection afforded by the Motor Vehicle

Inspection Program.

SIXTH CAUSE FOR DISCIPLINE



under Health and Safety Code section 44072.2, subdivision (a), in that on or about September

11, 2007, Respondent regarding the electronic certificates of compliance and the vehicles set

forth in Table One, above, he violated sections of that Code, as follows:








the Emission Inspection System ("EIS") for the electronic certificates of compliance by

certifying that the vehicles had been inspected as required when, in fact, they had not.

SEVENTH CAUSE FOR DISCIPLINE



under Health and Safety Code section 44072.2, subdivision (c), in that on or about September

11, 2007, regarding the electronic certificates of compliance and the vehicles set forth in Table

One, above, he violated sections of the California Code of Regulations, title 16, as follows:

a. Section 3340.30. subdivision (a): Respondent Gharabeglou failed to


2

3

4

5

6

7

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

8 AG 161

• • b. Section 3340.41, subdivision (c): Respondent Gharabeglou entered



being tested.



specifications.

EIGHTH CAUSE FOR DISCIPLINE



under Health and Safety Code section 44072.2, subdivision (d), in that on or about September

11, 2007, he committed acts involving dishonesty, fraud or deceit whereby another was injured

by issuing the electronic certificates of compliance for the vehicles set forth in Table One, above,







obtained from the Bureau's VID revealed that from approximately 1700 hours to 1816 hours,

Respondent Gharabeglou performed four (4) smog inspections that resulted in the issuance of the

electronic certificates of compliance for the vehicles set forth in Table Two, below, certifying

that he had tested and inspected the vehicles and that the vehicles were in compliance with

applicable laws and regulations. In fact, Respondent Gharabeglou performed the smog

inspections using the clean-piping method by using the tail pipe emissions of vehicles other than

the vehicles being certified in order to issue the certificates of compliance. The vehicles certified

were not in the test bay at the time of the smog inspections.

//

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

9 AG 162

AG 163

Table Two

Date and Test Times


9/12/2007 1700 hours

to 1708 hours

1990 Volkswagen Jetta Lic. No. 2TMN489


9/12/2007 1712 hours

to 1722 hours

1984 Ford E150 Club Wagon Lic. No. 2BICH587


9/12/2007 1739 hours

to 1748 hours

1984 Toyota Pickup Lie. No. 7H69267


9/12/2007 1809 hours

to 1816 hours

1994 Infinity Q45 Lic. No. 5RKG437


NINTH CAUSE FOR DISCIPLINE




employee, Respondent Gharabelou, made statements which he knew or which by exercise of

reasonable care he should have known were untrue or misleading by issuing the electronic

certificates of compliance for the vehicles set forth in Table Two, above, certifying that the

vehicles were in compliance with applicable laws and regulations when, in fact, the vehicles had

been clean-piped.

TENTH CAUSE FOR DISCIPLINE

(Fraud)



employee, Respondent Gharabelou, committed acts which constitute fraud by issuing the

electronic certificates of compliance for the vehicles set forth in Table Two, above, without

performing bona fide inspections of the emission control devices and systems on those vehicles,

10

2

3

4

5

6

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

• • thereby depriving the People of the State of California of the protection afforded by the Motor

Vehicle Inspection Program.

ELEVENTH CAUSE FOR DISCIPLINE




subdivision (a), in that on or about September 12, 2007, regarding the electronic certificates of

compliance and the vehicles set forth in Table Two, above, he violated sections of that Code, as

follows:

a. Section 44012, subdivision (f): Respondent Babalians, through his

employee, Respondent Gharabelou, failed to perform emission control tests on the vehicles in

accordance with procedures prescribed by the department.

b. Section 44015, subdivision (b): Respondent Babalians, through his


vehicles without properly testing and inspecting the vehicles to determine if they were in

compliance with section 44012 of that Code.

c. Section 44059: Respondent Babalians, through his employee,

Respondent Gharabelou, willfully made false entries for the electronic certificates of compliance

by certifying that the vehicles had been inspected as required when, in fact, they had not.

TWELFTH CAUSE FOR DISCIPLINE




subdivision (c), in that on or about September 12, 2007, regarding the electronic certificates of

compliance and the vehicles set forth in Table Two, above, he violated sections of the California

Code of Regulations, title 16, as follows:

a. Section 3340.24, subdivision (c): Respondent Babalians, through his

employee, Respondent Gharabelou, falsely or fraudulently issued the electronic certificates of

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

11 AG 164

• • compliance for those vehicles without performing bona fide inspections of the emission control

devices and systems on the vehicles as required by Health and Safety Code section 44012.

b. Section 3340.35, subdivision (c): Respondent Babalians, through his


vehicles even though the vehicles had not been inspected in accordance with section 3340.42 of

that Code.

c. Section 3340.42: Respondent Babalians, through his employee,

Respondent Gharabelou, failed to conduct the required smog tests and inspections on the

vehicles in accordance with the Bureau's specifications.

THIRTEENTH CAUSE FOR DISCIPLINE



Health and Safety Code section 44072.2, subdivision (d), in that on or about September 12,


above, through his employee, Respondent Gharabelou, committed acts involving dishonesty,

fraud or deceit whereby another was injured by issuing the electronic certificates of compliance

for those vehicles when, in fact, the vehicles had not been properly tested and inspected, thereby

depriving the People of the State of California of the protection afforded by the Motor Vehicle

Inspection Program.

FOURTEENTH CAUSE FOR DISCIPLINE



under Health and Safety Code section 44072.2, subdivision (a), in that on or about September


Two, above, he violated sections of that Code, as follows:

a. Section 44012, subdivision (0: Respondent Gharabeglou failed to



12 AG 165

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

• • b. Section 44032: Respondent Gharabeglou failed to perform tests of the




the EIS for the electronic certificates of compliance by certifying that the vehicles had been

inspected as required when, in fact, they had not.

FIFTEENTH CAUSE FOR DISCIPLINE



under Health and Safety Code section 44072.2, subdivision (c), in that on or about September


Two, above, he violated sections of the California Code of Regulations, title 16, as follows:



b. Section 3340.41, subdivision (c): Respondent Gharabeglou entered



being tested.



specifications.

SIXTEENTH CAUSE FOR DISCIPLINE



under Health and Safety Code section 44072.2, subdivision (d), in that on or about September

12, 2007, he committed acts involving dishonesty, fraud or deceit whereby another was injured

by issuing the electronic certificates of compliance for the vehicles set forth in Table Two,

above, without performing bona fide inspections of the emission control devices and systems on

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

13 AG 166

• • those vehicles, thereby depriving the People of the State of California of the protection afforded

by the Motor Vehicle Inspection Program.

DISCIPLINARY CONSIDERATIONS

32. In order to determine the degree of discipline to be imposed upon

Respondents, Complainant alleges as follows:

a. On or about July 21, 2009, in the Superior Court, County of Los Angeles,

California, in the matter entitled People v. Zhilbert Gharabeglou, Case No. BA340981,

Respondent Gharabeglou was convicted by the Court following his plea of guilty of a violation

of Penal Code section 502(C)(1), (computer crimes). The circumstances of this crime are that

Respondent Gharabeglou used a computer to defraud and wrongfully control or obtain money,

property or data in doing illegal smog checks on September 11 and 12, 2007, as set forth in more

detail in Paragraphs 14, 20-24 and 27-31 above. The Court sentenced Respondent Gharabeglou

to three years of probation, and he was ordered to pay the costs of investigation to the Bureau of

$10,000, in a manner as prescribed by his probation officer.

OTHER MATTERS

33. Under Code section 9884.7, subdivision (c), the director may invalidate

temporarily or permanently or refuse to validate, the registrations for all places of business

operated in this state by Edward Babalians, doing business as Smog Clinic, upon a finding that

he has, or is, through the actions or omissions of his employee, engaged in a course of repeated

and willful violations of the laws and regulations pertaining to an automotive repair dealer.

34. Under Health and Safety Code section 44072.8, if Smog Check Test Only

Station License Number TC 247615, issued to Edward Babalians, doing business as

Smog Clinic, is revoked or suspended, any additional license issued under this chapter name of

said licensee, including but not limited to Advanced Emission Technician License Number

EA 152900, issued to Edward Babalians, may be likewise revoked or suspended by the director.

35. Under Health and Safety Code section 44072.8, if Advanced Emission

Specialist Technician License Number EA 153268, issued to Zhilbert Gharabeglou, is revoked or

suspended, any additional license issued under this chapter in the name of said licensee may be

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

io

21

22

23

24

25

26

27

28

14 AG 167

R1RY MEHL Chief Bureau of Automotive Repair Depth tment of Consumer Affairs State of California Complainant

15

• • likewise revoked or suspended by the director.

PRAYER

WHEREFORE, Complainant requests that a hearing be held on the matters herein

alleged, and that following the hearing, the Director of Consumer Affairs issue a decision:

1. Temporarily or permanently invalidating Automotive Repair Dealer

Registration Number AC 247615, issued to Edward Babalians, doing business as Smog Clinic;

2. Temporarily or permanently invaliding any other automotive repair dealer

registration issued to Edward Babalians, doing business as Smog Clinic;

3. Revoking or suspending Smog Check Test Only Station License Number

TC 247615, issued to Edward Babalians, doing business as Smog Clinic;


License Number EA 152900, issued to Edward Babalians;


the name of Edward Babalians;


License Number EA 153268, issued to Zhilbert Gharabeglou;


the name of Zhilbert Gharabeglou;

8. Ordering Edward Babalians and Zhilbert Gharabeglou to pay the Bureau

of Automotive Repair the reasonable costs of the investigation and enforcement of this case,

pursuant to Code section 1 25 . 3 ; and,

9. Taking such other and further action as deemed necessary and proper.

DATED: 9)-- 1-- 2 oc-

AG 168

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

EDMUND G. BROWN JR., Attorney General KAREN B. …. TC 247615, and ZHILBERT ... Gharabeglou...

Documents

Transcript of EDMUND G. BROWN JR., Attorney General KAREN B. …. TC 247615, and ZHILBERT ... Gharabeglou...