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GOLDSTEN v. DC REAL ESTATE COM'N

District of Columbia Court of Appeals.


April 9, 1998

DOUGLAS K. GOLDSTEN, PETITIONER,
V.
DISTRICT OF COLUMBIA REAL ESTATE COMMISSION, RESPONDENT.

Before Wagner, Chief Judge, and Farrell and Reid, Associate Judges.

The opinion of the court was delivered by: Farrell, Associate Judge:

Before the court is a petition for review of a decision and order of the District of Columbia Real Estate Commission revoking petitioner's real estate license for five years on the basis of his 1990 conviction in the United States District Court for the District of Columbia of conspiracy to rig bids and suppress competition at public real estate auctions, in [709 A2d Page 1179]

violation of 15 U.S.C. § 1. *fn1 In January 1997, we remanded the record to the Commission to permit it to reconsider its decision in light of Spicer v. District of Columbia Real Estate Comm'n, 636 A.2d 415 (D.C. 1993). We now have received the Commission's written order on remand. We affirm the order revoking petitioner's license.

I.

Our remand was predicated upon an apparent uncertainty as to the Commission's understanding of its authority to impose a penalty short of revocation in the case of a real estate licensee who has been convicted of a crime of the sort involved here. Specifically, in this case the Commission was of the view that revocation of Goldsten's license is mandatory under D.C.Code § 45-1941 (1996). *fn2 On the other hand, in Spicer, where the licensee's conviction was also for a crime embraced by this section, it appeared to this court that the Commission had revoked Spicer's license in the exercise of discretion conferred on it by another statutory provision to impose that penalty or a lesser one in the case of a licensee who has "[b]een guilty of any . . . conduct . . . which constituted fraudulent or dishonest dealing." D.C.Code § 45-1936(b)(11); see Spicer, 636 A.2d at 417. *fn2 Goldsten, we concluded, was entitled to the Commission's considered view as to whether § 45-1941 or § 45-1936(b) defines the limits of the Commission's authority with respect to continued licensure after a licensee's conviction for "dishonest dealing" of the kind encompassed by both statutes. Our remand order stated, accordingly:

Spicer and this case, taken together, raise questions as to the Commission's [709 A2d Page 1180]

view of the relationship between § 45-1936(b) and § 45-1941. The Commission's position, as stated in its present brief, that § 45-1936(b) is inapplicable to revocation following a § 45-1941 suspension must be reconciled with its seemingly contrary view in Spicer. As the agency charged with administering the statute, the Commission's understanding of its statutory authority in regard to revocation may be entitled to deference by this court, Timus v. District of Columbia Dep't of Human Rights, 633 A.2d 751, 759-60 (D.C. 1993) (en banc). For this reason, we believe it necessary for the Commission to re-examine its decision in this case in light of the intervening decision in Spicer.

Following the remand and reconsideration, the Commission now adheres to its "construction of the District of Columbia Real Estate Licensure Act of 1982 as mandating the revocation of a license when a licensee is convicted of a crime covered by D.C.Code § 45-1941." The Commission explains that, while "unfortunate[ly it] . . . did not clearly delineate [its] reasoning" in Spicer, its understanding of its authority there — where in fact it revoked Spicer's license — was in keeping with its present understanding. The Commission provides essentially three reasons for its interpretation of the statutory scheme.

First, it explains that while the sanctions available in § 45-1936(b) precede an extensive list of possible misconduct by a licensee, the section contains no reference to conviction for a criminal offense by a court; in the case of a current licensee, only § 45-1941 by its terms embraces such conviction. Section 45-1936, in other words, provides an array of sanctions available for misconduct not resulting in conviction for one of the § 45-1941 offenses. Second, the Commission asserts that mandatory revocation is consistent with the predecessor statute covering similar criminal offenses, D.C.Code § 45-1415 (1961), which provided that upon conviction for one of those offenses, "the Commission shall revoke forthwith the license by it theretofore issued to the licensee so convicted" (emphasis added). See Whiting v. Real Estate Comm'n, 198 A.2d 742, 744 (D.C. 1964).

Finally, the Commission points out that its interpretation is consistent with the bar to initial licensure of a person who has been convicted of one of the § 45-1941 offenses "within 5 years prior to the person's application for a license." See D.C.Code § 45-1942. A licensee convicted of one of those crimes, the Commission states, "should not be treated more favorably than an applicant convicted of an identical offense."

II.

Section 45-1941, unlike its predecessor (§ 45-1415 (1961)), does not state that the Commission "shall revoke" the license of the convicted person but instead that it "shall suspend forthwith the license . . . and convene a revocation hearing." It is thus fair to say that the statute is "ambiguous with respect to the specific issue," Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837, 843, 104 S.Ct. 2778, 2782, 81 L.Ed.2d 694 (1984), of what outcome may follow that hearing — whether, in short, the Commission must revoke the license of a person convicted of an enumerated or similar offense under § 45-1941. In such a case, this court defers to a "permissible construction of the statute" by the agency charged with administering it. Id.; see also Timus, supra, 633 A.2d at 758-59; Schlank v. Williams, 572 A.2d 101, 107 (D.C. 1990). We hold that the Commission's construction of the relationship between §§ 45-1936(b), -1941, and -1942, which leaves each section with its proper application, is a permissible interpretation of the statutory scheme. *fn3 Section 45-1941 speaks of a "revocation hearing," not a hearing to consider possible lesser sanctions such as suspension. Its limitation to those crimes — in general reflecting deception or dishonesty — most directly incompatible with the regulated status of licensed real estate brokers or salespersons, see § 45-1921 (purpose of statutory scheme is, inter alia, "to protect the public against incompetence, fraud, and deception in real estate transactions") (emphasis [709 A2d Page 1181]

added), reinforces the statutory intent to treat with special severity persons who have been convicted of those offenses. See also § 45-1942 (excluding from initial licensure persons similarly convicted).

We therefore uphold the decision of the Commission revoking petitioner's license. *fn4

Affirmed.


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