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05/10/93 JOHN R. SPICER v. DISTRICT COLUMBIA REAL

DISTRICT OF COLUMBIA COURT OF APPEALS


May 10, 1993

JOHN R. SPICER, PETITIONER
v.
DISTRICT OF COLUMBIA REAL ESTATE COMMISSION, RESPONDENT

Petition for Review of an Order of the District of Columbia Real Estate Commission.

Before Ferren, Farrell and Sullivan, Associate Judges.

The opinion of the court was delivered by: Sullivan

SULLIVAN, Associate Judge : Petitioner, John R. Spicer, appeals from the order ("order") of the District of Columbia Real Estate Commission ("the Commission") revoking his real estate broker's license and barring his application for reinstatement as a real estate broker for five years from the date of the order. Petitioner contends on appeal that the Commission revoked his license arbitrarily and capriciously because it did not hear his testimony, erroneously relied on an inapplicable code provision, misapplied that provision, and failed to render a decision within ninety days from the date of his hearing as mandated by 17 DCMR § 2715.1 (1990). *fn1 We affirm the Commission's order revoking petitioner's license and issue this opinion since we have not addressed previously the issue of revocation of a real estate broker's license pursuant to the District of Columbia Real Estate Licensure Act of 1982 ("the Act"). D.C. Code §§ 45-1921 to -1951 (1990 & 1992 Supp.).

I.

On October 3, 1989, petitioner entered a plea of guilty in the United States District Court for the District of Columbia to one count of interstate transportation of property obtained by fraud, in violation of 18 U.S.C. § 2314 (1988). The plea of guilty was the culmination of the government's two-year investigation into petitioner's participation in numerous fraudulent real estate transactions, allegedly devised and intended to defraud the United States Department of Housing and Urban Development and the Federal Housing Administration. On January 26, 1990, petitioner was sentenced to a four-month prison term and ordered to pay restitution in the amount of $340,000.

II.

On October 23, 1990, the Commission, acting pursuant to D.C. Code § 45-1941 (1990), summarily suspended petitioner's real estate broker's license pending a revocation hearing. *fn2 At the revocation hearing on December 4, 1990, petitioner testified before Administrative Law Judge Patricia Elam Ruff. Petitioner's attorney and the Assistant Corporation Counsel, representing the District of Columbia, stipulated to petitioner's criminal conviction and sentence. Judge Ruff issued a "Recommended Decision" on January 17, 1991, in which she proposed to the Commission that petitioner's real estate license be suspended for a period not to exceed ninety days. The Commission adopted Judge Ruff's proposed findings of fact and Conclusions of law, but rejected her recommended sanction, finding that petitioner's violation warranted a more severe penalty than a ninety-day suspension. Accordingly, the Commission revoked petitioner's broker's license as of the date of its order and barred him from applying for reinstatement of his license for five years from that date. This appeal followed.

III.

Petitioner contends that the Commission acted arbitrarily and capriciously in revoking his real estate broker's license because it did not hear his testimony and ignored the testimony and evidence that was presented at the hearing before Judge Ruff. In support of this claim, petitioner argues that the Commission erroneously stated that he had "used his status as a real estate broker to commit the crime for which he was convicted." Petitioner's contention is unpersuasive.

The Commission expressly referred to and incorporated in its order of revocation the proposed findings that Judge Ruff made following the hearing, during which petitioner testified that he had been convicted of a felony offense involving fraud. *fn3 Thus, there is no rational basis for petitioner's contention that the Commission "did not study the testimony and evidence which was presented to Judge Ruff." Moreover, the Commission properly concluded that petitioner was acting in his capacity as a licensed real estate broker by "performing or attempting to perform" acts covered under the statute. § 45-1936 (b)(11). *fn4 Specifically, petitioner, "for a fee, commission, or other valuable consideration," sold real property and negotiated loans secured by FHA mortgages pursuant to a scheme intended by him to defraud the federal government. *fn5 § 45-1922 (12)(A). *fn6 Further, contrary to petitioner's assertion, it is irrelevant whether he was acting in his capacity as a licensed real estate broker when the offense was committed because the Act provides that a licensee who has been found guilty of any "fraudulent or dishonest dealing" may be sanctioned. § 45-1936 (b)(11). We hold, therefore, that the Commission did not act arbitrarily and capriciously in revoking petitioner's real estate broker's license.

Next, petitioner claims that the Commission improperly relied upon § 45-1942 *fn7 in revoking his license, instead of relying upon § 45-1936. The Commission did not state the precise statutory subsection upon which it relied; *fn8 nevertheless, this court will affirm the decision if "'the grounds upon which the acted clearly disclosed and adequately sustained.'" Jones v. Police and Firemen's Retirement and Relief Bd., 375 A.2d 1, 5 (D.C. 1977) (quoting in part from Securities and Exchange Comm'n v. Chenery Corp., 318 U.S. 80, 87 L. Ed. 626, 63 S. Ct. 454 (1943) (citations omitted)); see also Kegley v. District of Columbia, 440 A.2d 1013, 1018 (D.C. 1982). As we have concluded, the Commission was justified in revoking petitioner's license because of his conviction for a crime involving fraud. § 45-1936 (b)(11). Accordingly, we affirm the Commission's decision because the ground for the decision, petitioner's conviction, is clearly disclosed and adequately sustained in the record, and not contrary to relevant statutory authority. See Jones, supra, 375 A.2d at 5; Kegley, supra, 440 A.2d at 1018.

Petitioner also contends that the Commission's decision not to allow him to apply for reinstatement of his real estate license for five years from the date of the revocation order of 1990, misconstrues § 45-1942. Petitioner claims that the Commission must permit him to apply for reinstatement five years from the date of his conviction in 1988. We disagree. While the legislature prescribed the date of conviction as the date from which to calculate the waiting period for a new applicant, § 45-1942, it did not restrict the Commission's discretion with respect to reinstatement of a licensee whose license had been revoked. See § 45-1936. The Commission's order revoking petitioner's license for five years from the date of the order is a reasonable exercise of discretion, reflecting the Commission's recognition that the five-year statutory waiting period prescribed by § 45-1942 may also be imposed as an appropriate sanction for a post-revocation license application. Further, § 45-1936 gives the Commission broad discretion to fashion remedies for violations of the Act, and in the absence of an abuse of this discretion, we will not disturb the agency's decision. *fn9 See Kegley, supra, 440 A.2d at 1020 n.11 (where "a sanction is within an agency's statutory power to impose, an appellate court will not disturb the exercise of that discretion solely because [of the severity of the sanction]"). The Commission concluded that revocation for a period of five years was "consistent with the intent of the Council of the District of Columbia to hold real estate practitioners professionally accountable for fraudulent real estate transactions . . . ." Finding no abuse of discretion, we affirm the Commission's decision that petitioner may not reapply for a real estate license for five years from the date of the Commission's order of revocation.

Finally, petitioner argues that the Commission's decision must be vacated in favor of Judge Ruff's recommendation, because the Commission failed to render its decision within ninety days of the hearing as required under 17 DCMR § 2715.1. This court has held, however, that statutory time limits on agency decision making, where the statute fails to provide for a sanction, are "directory rather than mandatory." Hughes v. District of Columbia Dep't of Employment Servs., 498 A.2d 567, 571, n.8 (D.C. 1985); see also JBG Properties, Inc. v. District of Columbia Office of Human Rights, 364 A.2d 1183, 1185 (D.C. 1976) (a statutory time limit is "directory unless the nature of the act to be performed, or the phraseology of the statute, is such that the designation of time must be considered a limitation of the power of [a public officer]") (quoting 2A NORMAN J. SINGER, SUTHERLAND STATUTORY CONSTRUCTION § 57.19 at 443-44 (Rev. 3d ed. 1973)). The Act fails to provide for a sanction; thus, the statutory time limit of ninety days is "directory." Moreover, petitioner does not claim that he has been prejudiced in any way by the delay. See In re Williams, 513 A.2d 793, 796-97 (D.C. 1986) (in some cases, delay coupled with actual prejudice may warrant reversal of an administrative action). We hold, therefore, that this claim by petitioner is without merit.

Accordingly, the order on appeal herein is

Affirmed.


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