Colorado Real Estate Commission Case No. RC 2015-0013
Philip
J. Weiser, Attorney General, Gina M. Simonson, First
Assistant Attorney General, Natalie L. Powell, Assistant
Attorney General, Gina M. Cannan, Assistant Attorney General,
Denver, Colorado, for Petitioner-Appellee
Montgomery Little & Soran, PC, Nathan G. Osborn,
Christopher T. Carry, Greenwood Village, Colorado, for
Respondent-Appellant
OPINION
TERRY
JUDGE.
¶
1 Can a licensed real estate broker contract away his
statutory obligations as a transaction-broker under section
12-61-807(2), C.R.S. 2018? We answer "no" to this
question, and therefore affirm the final agency order of the
Colorado Real Estate Commission disciplining a licensed real
estate broker, John J. Vizzi, for failing to fulfill those
statutory obligations. We also conclude that the
Commission's enforcement of that statute against Vizzi
does not violate federal antitrust laws. As a result, we
affirm the Commission's order.
I.
Factual Background
¶
2 Vizzi entered into contracts in 2013 and 2014 with three
clients to provide unbundled real estate brokerage services
in exchange for a flat fee. In one instance, he contracted
only to list the client's property on the Multiple
Listing Services (MLS) list. In two other instances, he
contracted only to provide a yard sign, a lock box, and
centralized showing services, and to list the properties on
the MLS.
¶
3 After an anonymous informant notified the Commission of
Vizzi's practices, it investigated. As a result, the
Commission charged Vizzi with failing to fulfill his
statutory duties under section 12-61-807(2) and sought to
discipline him.
¶
4 An Administrative Law Judge (ALJ) heard the case. She
concluded that the duties listed in section 12-61-807(2) are
mandatory and that Vizzi had not fulfilled them in any of the
three transactions at issue. She therefore disciplined Vizzi
under section 12-61-113(1)(k), C.R.S. 2018, requiring him to
take twelve hours of continuing education and levying a fine
of $2000 plus the statutory surcharge. Although the
Commission had sought public censure, the ALJ did not impose
it.
¶
5 Vizzi filed exceptions to the ALJ's decision with the
Commission. After hearing oral argument on the exceptions,
the Commission issued a final agency order.
¶
6 The Commission adopted the ALJ's findings of fact and
conclusions of law. It agreed with the ALJ's ruling that
Vizzi was required to provide to his clients all of the
services listed in section 12-61-807(2), and that he violated
the provisions of section 12-61-113(1)(k) and (n) by entering
into contracts that essentially disclaimed any responsibility
to provide statutorily required services.
¶
7 The Commission modified the discipline imposed on Vizzi to
include public censure. In doing so, the Commission relied on
its issuance of a December 2010 position statement that said,
in part: "A broker is not allowed to solely perform
'additional' services which require a real estate
broker's license . . . without providing the minimum
duties required by single agency or transaction
brokerage." Dep't of Regulatory Agencies, Div. of
Real Estate, CP-36 Commission Position on Minimum Service
Requirements, https://perma.cc/6UZE-DY2T. Because the
position statement was issued before Vizzi entered into the
contracts at issue, the Commission concluded that he
"should have known that the listing contracts he
prepared in 2013 and 2014 were improper."
II.
Contentions Raised on Appeal
¶
8 Vizzi maintains that he was permitted by statute to
contract out of many of the duties imposed on
transaction-brokers under section 12-61-807(2), and that the
contracts in question successfully accomplished that goal.
¶
9 Invoking the United States Supreme Court's decision in
North Carolina State Board of Dental Examiners v. Federal
Trade Commission, 574 U.S. ___, 135 S.Ct. 1101 (2015),
Vizzi asserts that the Commission's enforcement action
against him violates federal antitrust law.
¶
10 He argues that the Commission violated his due process
rights by declining to disclose the identity of the person
who notified the Commission of Vizzi's actions in the
questioned transactions.
¶
11 And he contends that the Commission exceeded its statutory
authority and thus violated his due process rights when it
disciplined him more harshly than did the ALJ, and that its
decision to do so was arbitrary and capricious.
¶
12 For the reasons discussed below, we reject these
contentions.
III.
Legal Standards
¶
13 We must sustain the Commission's decision unless it is
arbitrary or capricious, unsupported by the evidence, or
contrary to law. Coffman v. Colo. Common Cause, 102
P.3d 999, 1005 (Colo. 2004); see also §
24-4-106(7)(a), C.R.S. 2018 (On review of agency action,
"[i]f the court finds no error, it shall affirm the
agency action.").
¶
14 The issues in this appeal are governed by state statute.
Statutory interpretation presents a question of law we review
de novo. Gessler v. Colo. Common Cause, 2014 CO 44,
¶ 7. It is our function to interpret statutes. §
24-4-106(7)(d) ("In all cases under review, the court
shall determine all questions of law and interpret the
statutory and constitutional provisions involved.");
El Paso Cty. Bd. of Equalization v. Craddock, 850
P.2d 702, 705 (Colo. 1993) ("An administrative
agency's construction [of a statute] should be given
appropriate deference but is not binding on the
court.").
¶
15 Judicial deference to an agency's interpretation of
its governing statute is appropriate when the statute is
subject to different reasonable interpretations and the issue
comes within the administrative agency's special
expertise. Huddleston v. Grand Cty. Bd. of
Equalization, 913 P.2d 15, 17 (Colo. 1996).
¶
16 Our review of statutory provisions is de novo. Cowen
v. People, 2018 CO 96, ¶ 11. When interpreting a
statute, our primary purpose is to ascertain and give effect
to the General Assembly's intent. Id. We start
by examining the plain meaning of the statutory language.
Id. We give consistent effect to all parts of the
statute and construe each provision in harmony with the
overall statutory design. Id., ¶ 13. Our
construction must avoid or resolve potential conflicts and
give effect to all legislative acts, if possible.
Id.
IV.
Roles of Licensed Real Estate Brokers
¶
17 Vizzi is licensed as a real estate broker, and it is
uncontested that, in entering into the contracts in issue, he
acted as a transaction-broker.
¶
18 As pertinent here, "real estate broker" is
defined as "any person . . . who, in consideration of
compensation by fee, commission, salary, or anything of value
. . . engages in . . . [l]isting, offering, attempting, or
agreeing to list real estate, or interest therein, or
improvements affixed thereon for sale, exchange, rent, or
lease[.]" § 12-61-101(2)(a)(V), C.R.S. 2018.
¶
19 Colorado law provides that a licensed real estate broker
must act either as a single agent or as a transaction-broker
in providing real estate services. § 12-61-803(1),
C.R.S. 2018.
¶
20 A single agent represents one party to a real estate
transaction. § 12-61-802(4), C.R.S. 2018. Such an
agent's duties include exercising reasonable skill and
care, presenting all offers in a timely manner, and
disclosing known adverse material facts to the other party in
a transaction. §§ 12-61-804 to -805, C.R.S. 2018.
¶
21 Section 12-61-803(2) makes transaction-broker the default
role for a real estate broker who has not entered into a
single-agency written agreement with the represented party.
¶
22 Transaction-brokers assist with a transaction but are not
agents for any party. § 12-61-807(1). Though
transaction-brokers share certain statutory duties that
single agents have, such as the duty to present all offers in
a timely manner, § 12-61-807(2)(b)(I), their role is
more limited than that of a single agent.
¶
23 Section 12-61-803(1) requires a transaction-broker to
disclose the "general duties and obligations arising
from that relationship" to the seller and the buyer
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