New Jersey Real Estate Commission v. Richard A. Karpf ( 2024 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3654-21
NEW JERSEY REAL
ESTATE COMMISSION,
Petitioner-Respondent,
v.
RICHARD A. KARPF,
Respondent-Appellant,
and
JOSEPH THOMAS,
Respondent.
Argued February 5, 2024 - Decided April 1, 2024
Before Judges Sabatino, Mawla, and Marczyk.
On appeal from the New Jersey Real Estate
Commission, Department of Banking and Insurance,
Docket No. CAM-16-018.
Mario A. Iavicoli argued the cause for appellant.
Nicholas Klingbeil Kant, Deputy Attorney General,
argued the cause for respondent (Matthew J. Platkin,
Attorney General, attorney; Sookie Bae-Park, Assistant
Attorney General, of counsel; William B. Puskas, Jr.,
Deputy Attorney General, on the brief).
PER CURIAM
Respondent Richard A. Karpf 1 appeals from the New Jersey Real Estate
Commission's ("Commission") June 14, 2022 final determination and order
suspending his broker's license for three years and imposing a $5,000 fine.
Based on our review of the record and applicable legal principles, we affirm in
part, vacate in part, and remand for further proceedings consistent with this
opinion.
I.
Karpf has been a licensed real estate broker since 1979 and owns a real
estate business in Cherry Hill. In 2014, the Commission received an anonymous
letter alleging Karpf failed to keep his real estate office open to the public during
normal business hours and that he worked full-time as a teacher in violation of
the Commission's regulations. This prompted an investigation.
1
We refer to Richard as "Karpf" and other witnesses who share his last name
by their first name. We intend no disrespect.
A-3654-21
2
In October 2016, following the investigation, the Commission filed an
order to show cause ("OTSC"). The Commission sought to revoke or suspend
Karpf's real estate license and impose civil penalties and costs for Karpf's
alleged violations under: (1) N.J.A.C. 11:5-4.4(a) for failing to maintain and
supervise his licensed real estate office on a full-time basis and failing to have
his real estate office open to the public during usual business hours, and (2)
N.J.S.A. 45:15-17(e) alleging his conduct demonstrated unworthiness,
incompetency, bad faith, or dishonesty. 2 In January 2020, the matter was
transferred to the Office of Administrative Law ("OAL") for a hearing before an
Administrative Law Judge ("ALJ"). The ALJ conducted a two-day hearing in
September 2021, and heard testimony from several witnesses.
Dana Tatarek, an investigator for the Commission, conducted an
investigation between June and the fall of 2014. She testified she conducted
surveillance of Karpf's business by periodically going to his office at different
2
The OTSC also alleged certain statutory and regulatory violations stemming
from an alleged failure by Karpf and one of his real estate agents, Joseph
Thomas, to timely deposit certain checks. On February 1, 2018, Thomas entered
into a consent order resolving all of the violations pending against him. On
September 26, 2017, a hearing commenced before the Commission at which
time Count I and Count II were dismissed as to Karpf. Accordingly, Count III
of the OTSC alleging Karpf's conduct violated N.J.A.C. 11:5-4.4(a) and
N.J.S.A. 45:15-17(e) remained as the sole count to be adjudicated.
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3
times of the day, usually between the hours of 8:00 a.m. and 4:00 p.m. Tatarek
visited the property approximately ten to twelve times and each time it was not
open to the public. She did, however, on one occasion see Karpf cutting up
signs on the property, but she did not speak with him because she was just
"observing." Tatarek noticed a video doorbell camera had been installed at
Karpf's office towards the end of her investigation, sometime in the fall of 2014.
During that visit, Tatarek rang the doorbell and spoke to Karpf through the video
doorbell, but he did not let her in and informed her an appointment was required.
She did not know where Karpf was physically located when she spoke with him
that day. In addition to surveilling Karpf's property, Tatarek also contacted the
Philadelphia School District and obtained records documenting that Karpf was
employed "full-time" as a teacher.
Tatarek eventually met with Karpf, and he provided her a statement
regarding his operation of the office. He noted his office was open seven days
a week, and he "installed call forwarding and email" to conduct business with
agents and customers. He also set up a "surveillance system to view customers
and unwanted solicitations." He stated he considered his teaching in the
Philadelphia School District to be a "part[-]time job[,] 180 days per year."
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4
On cross-examination, Tatarek was asked if she ever made an appointment
to see Karpf. She explained that as an investigator, she did not need an
appointment because such action was permissible under the Commission rules.
Tatarek testified she did not call the number provided on the sign on the office
door to make an appointment prior to her visits. 3
Lauren Glantzberg, a supervisor of investigations for the Commission,
testified Karpf was the only broker of record for his real estate office. She was
familiar with Tatarek's investigation of Karpf, and she provided Tatarek
direction during her investigation. Glantzberg testified one of her directives to
Tatarek was to stop at Karpf's office at various times in the day to get an accurate
representation of the activity within the office. 4
3
Karpf asserts that Tatarek's testimony was false because she testified she kept
notes of her visits to Karpf's office, but the notes were never located by the
Commission. Moreover, the Commission did locate "[New Jersey Department
of Banking and Insurance ("DOBI")] - Trip Record Sheets" which only indicated
Tatarek traveled to Cherry Hill four times during the period she was conducting
the investigation.
4
Glantzberg testified investigators typically incorporate their investigative
findings into their report, which is then sent to her. If notes were prepared by
Tatarek as it related to her investigation, Glantzberg had no idea what happened
to them, because she had never seen them.
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5
On cross-examination, Glantzberg was questioned if real estate offices
were impacted because of the pandemic—more specifically, if offices had to
close their doors to the public. In response, she stated the Commission rules did
not change during the pandemic, but the Governor issued Executive Orders
which mandated the closure of certain businesses. Glantzberg agreed the real
estate industry was able to function during the pandemic. Without having access
to her files, she could not say with any certainty whether any complaints had
been filed with her office during the COVID-19 pandemic because a real estate
office was not open to the public.5
Glantzberg was aware of investigative practices where field investigators
show up at a broker's office unannounced. She agreed that a property owner has
the right to determine who may enter their property but, under the rules and
regulations, a real estate office is required to be open to the public during
business hours. She did not know whether Karpf could be reached by phone
during the business day. She was aware that Tatarek did, at one point, call the
number on the door and speak to Karpf. However, she did not believe there was
anyone in the office. She testified the regulations require the broker of record
5
The time period of the investigation at issue was in 2016, prior to the 2020
COVID-19 pandemic.
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6
to maintain a full-time main office. She acknowledged that today's real estate
market has changed, in that most property listings are online.
Karpf testified the difference between a broker's license and a
salesperson's license is that a salesperson is required to work under a broker,
and a broker can work independently. He asserted he was available every day
of the week around the clock, "[t]wenty-four hours, basically." He stated he was
a teacher in the Philadelphia school system and worked five days a week the
entire school year starting in September and ending in June.6 He taught five
classes a day with each class lasting from forty-five minutes to an hour or more,
and he was at school from 8:00 a.m. to 3:00 p.m. He considered his job as a
school teacher part-time, and his job as a real estate broker full-time. When
classes ended, he would go straight to his office and work until 10:00 p.m. He
would also work in the office on weekends.
Karpf stated that the real estate industry has evolved over the years from
when he first started because potential clients used to come into the office and
6
Karpf testified he worked in the Philadelphia school system as a teacher "[i]n
and out over a period of many years," "probably for over [thirty] years,
possibly." He testified he retired in or around 2016. The records from the
Philadelphia school system indicated he worked there since at least 2001.
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go through the books. However, he testified everything is now done through the
internet.
Deborah Ann Harris-Karpf, Karpf's wife, testified that for the past twenty
years, until 2019, she worked full-time for a television station in Philadelphia.
Her work hours at the time were 4:00 a.m. to 1:00 p.m. She testified she has
been a licensed salesperson with Karpf's office since 2005. Deborah would
leave work at the television station at 1:00 p.m. and get to the real estate office
by 1:30 p.m.7 If someone called looking for Karpf, she would take a message
and relay it to him. She has never had to contact Karpf on an emergent basis.
Deborah testified her husband would arrive at the office around 3:30 p.m., and
they would both work weekends. She noted the real estate agents that worked
for the company "[v]ery rarely" came to the office. She stated that Karpf was
always able to supervise her and any of the other agents connected to the office.
Arthur Karpf, Karpf's father, testified he had worked at Karpf's office for
several years, mostly on weekdays from 9:00 a.m. to 5:00 p.m. He was always
7
On cross-examination, Deborah confirmed that she would typically arrive at
the real estate office around 1:30 p.m. When shown her deposition testimony in
a separate matter, specifically wherein she stated she would arrive at the real
estate office around 3:00 or 4:00 p.m., Deborah stated that her arrival at the real
estate office varied depending on the day.
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able to reach Karpf to convey messages. While Arthur holds a real estate
license, he did not actively use it.
Three of Karpf's part-time agents—William Toner, William Hamish, and
Michael DeLaura—each testified Karpf was always accessible and responsive
even when out of the office. DeLaura also testified the industry has changed
over the years, and currently there is not as much of a need for office time
because most of his work is handled by using Google.
Jared Karpf, Karpf's son, echoed the testimony of the other agents, stating
he never had difficulty reaching his father, nor did any of his clients. He also
testified the internet has completely changed the relationship between brokers
and clients.
Based upon the testimonial and documentary evidence presented in the
matter, the ALJ concluded Karpf's conduct, which had spanned for many years,
was in violation of N.J.A.C. 11:5-4.4(a), and demonstrated unworthiness,
incompetence, and bad faith in violation of N.J.S.A. 45:15-17(e). The ALJ
concluded Karpf's office was not, based on the language of N.J.A.C. 11:5-4.4,
"open to the public during usual business hours." She further found that
"business hours" are defined as "[t]hose hours of the day during which, in a
given community, commercial, banking, professional, public, or other kinds of
A-3654-21
9
business are ordinarily carried on," which "is . . . not the time during which a
principal requires an employee's services, but the business hours of the
community generally." Bus. Hours Definition & Legal Meaning, L. Dictionary,
https://thelawdictionary.org/business-hours/ (last visited Mar. 15, 2024).
The ALJ found that the office door was locked, and when the investigator
went to visit on multiple occasions, no one answered. Specifically, the ALJ
observed,
[a]t no time during any of [Tatarek's] unannounced
visits did anyone answer the door and/or let her in the
office despite the fact that [Arthur] testified that he was
there all day during most weekdays, and [Deborah]
stated that she was in the office at some point every
afternoon during the week and worked on the
weekends.
The ALJ found Tatarek's testimony "to be very credible," as a result of
her "surveillance over several months and obtaining documentation." Regarding
the trip history documents from September and October 2016, the ALJ noted
they included some of the days and times when school was in session and Karpf
"would have been at his full-time position of teaching."
However, the ALJ "found [Karpf's] testimony that he operated his real
estate business on a full-time basis during usual business hours to be equally
self-serving and disingenuous given the testimonial and documentary evidence
A-3654-21
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presented in this matter." The ALJ also stated that Karpf's full-time teaching
job "violate[d] N.J.A.C. 11:5-4.4 in that absent work-related absences, he was
required to be physically present in the office during usual business hours.
Clearly, teaching is not related to [Karpf's] real estate business." The ALJ found
Karpf's assertion that he always maintained an office, open to the public, during
usual business hours was contrary to the credible evidence presented in this
matter. The ALJ determined his full-time employment as a teacher undermined
his assertion that he was a full-time broker, and that Karpf could "not be in two
places at once nor could his sales staff or clients reach him when he was
teaching."
With respect to N.J.S.A. 45:15-17(e), the ALJ concluded that Karpf's
conduct, which took place over many years when he worked as a full-time
teacher, was in violation of N.J.A.C. 11:5-4.4(a), which evidenced
unworthiness, incompetence, and bad faith in violation of N.J.S.A. 45:15-17(e).
Karpf's "continued intentional misrepresentation of his obligations under the Act
to justify his actions" were a part of the equation in finding a violation of the
statute.
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The ALJ also evaluated the Kimmelman8 factors for determining the
appropriate monetary penalty. After balancing the factors, the ALJ imposed a
$2,500 fine. Additionally, she concluded Karpf's conduct warranted a two-year
suspension.
The Commission ultimately adopted the ALJ's findings related to the
violations of N.J.A.C. 11:5-4.4(a) and N.J.S.A. 45:15-17(e). The Commission
noted N.J.A.C. 11:5-4.4(a) was substantially updated in 1988,9 to "eliminate any
misunderstanding by employing brokers and brokers of record as to their
responsibility concerning office management during normal business hours."
Additionally, as discussed below, the Commission addressed a similar situation
in 1989 where a commenter was concerned the amended regulations would
preclude a broker, who also taught real estate prelicensure courses, from
teaching courses during normal business hours. 10
The Commission modified the ALJ's recommendations and increased the
monetary penalty from $2,500 to $5,000. It also increased the license
suspension to three years.
8
Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 137-39 (1987).
9
20 N.J.R. 1160(a) (June 6, 1988).
10
21 N.J.R. 2523(a) (Aug. 21, 1989).
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II.
On appeal, Karpf contends the case should be dismissed as res judicata
because he claims the Commission previously dismissed the OTSC. Karpf next
argues he maintained a designated main office open to the public in full
compliance with N.J.S.A. 45:15-12. He further asserts the Commission erred in
relying on Tatarek's testimony because she misrepresented how many times she
visited Karpf's property during her investigation. He contends his office was
open during usual business hours, it was always supervised, he was always
accessible for clients and sales agents, and he worked full-time as a broker.
Karpf maintains the regulations, which require a broker to maintain a
physical office are antiquated, serve no legitimate government purpose, and that
N.J.A.C. 11:56-4.4 is vague and confusing. He further contends he was denied
due process regarding the Commission's reliance on N.J.A.C. 11:5-3.8, but
regardless the regulation supports his position because he worked full-time as a
broker. Karpf argues he should not have been penalized because he did not act
in bad faith, he obtained no profit from illegal activity, and there was no injury
to the public.
"The scope of review in a case involving [an] appeal from the
[Commission] is the same as that for other administrative agencies . . . ."
A-3654-21
13
Morgan v. Saslaff, 123 N.J. Super. 35, 38 (App. Div. 1973). We have "'a limited
role' in the review of [agency] decisions." In re Stallworth, 208 N.J. 182, 194
(2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579 (1980)). "[A]
'strong presumption of reasonableness attaches to [an agency decision].'" In re
Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001) (quoting In re Vey, 272 N.J.
Super. 199, 205 (App. Div. 1993)). "In order to reverse an agency's judgment,
an appellate court must find the agency's decision to be 'arbitrary, capricious, or
unreasonable, or . . . not supported by substantial credible evidence in the record
as a whole.'" Stallworth, 208 N.J. at 194 (quoting Henry, 81 N.J. at 579-80).
Our Supreme Court has held:
In determining whether agency action is
arbitrary, capricious, or unreasonable, a reviewing
court must examine:
(1) whether the agency's action violates
express or implied legislative policies, that
is, did the agency follow the law; (2)
whether the record contains substantial
evidence to support the findings on which
the agency based its action; and (3)
whether in applying the legislative policies
to the facts, the agency clearly erred in
reaching a conclusion that could not
reasonably have been made on a showing
of the relevant factors.
[Ibid. (quoting In re Carter, 191 N.J. 474, 482-83
(2007)).]
A-3654-21
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An appellate court "may not substitute its own judgment for the agency's,
even though [it] might have reached a different result." Ibid. (quoting Carter,
191 N.J. at 483). "This is particularly true when the issue under review is
directed to the agency's special 'expertise and superior knowledge of a particular
field.'" Id. at 195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)).
Furthermore, "[i]t is settled that '[a]n administrative agency's interpretation of
statutes and regulations within its implementing and enforcing responsibility is
ordinarily entitled to our deference.'" E.S v. Div. of Med. Assistance & Health
Servs., 412 N.J. Super. 340, 355 (App. Div. 2010) (second alteration in original)
(quoting Wnuck v. N.J. Div. of Motor Vehicles, 337 N.J. Super. 52, 56 (App.
Div. 2001)). "Nevertheless, '[appellate courts] are not bound by the agency's
legal opinions.'" A.B. v. Div. of Med. Assistance & Health Servs., 407 N.J.
Super. 330, 340 (App. Div. 2009) (quoting Levine v. State Dep't of Transp., 338
N.J. Super. 28, 32 (App. Div. 2001)). "Statutory and regulatory construction is
a purely legal issue subject to de novo review." Ibid.A.
Karpf argues the cause of action against him should be barred as res
judicata. He asserts the OTSC was dismissed because the Commission "did not
want the hearing to proceed" and directed the parties to engage in settlement
A-3654-21
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discussions after it dismissed certain counts of the OTSC. Karpf contends the
Commission later "dismissed the cause of action" because "no settlement
occurred," and it "had chosen to dismiss [the matter] . . . since the proceeding
was not worthy of the [Commission's] time or effort."
Res judicata serves important goals, including "finality and repose;
prevention of needless litigation; avoidance of duplication; reduction of
unnecessary burdens of time and expenses; elimination of conflicts , confusion
and uncertainty; and basic fairness[.] " First Union Nat'l Bank v. Penn Salem
Marina, Inc., 190 N.J. 342, 352 (2007) (alteration in original) (quoting
Hackensack v. Winner, 82 N.J. 1, 32-33 (1980)). "Adjudicative determinations
by administrative tribunals are entitled to preclusive effect if rendered in
proceedings meriting that deference." Olivieri v. Y.M.F. Carpet, Inc., 186 N.J.
511, 522 (2006) (quoting Zoneraich v. Overlook Hosp., 212 N.J. Super. 83, 93-
94 (App. Div. 1986)).
Res judicata or claim preclusion applies when a party seeking to apply the
doctrine establishes: (1) a valid judgment on the merits was entered on the claim
in a prior action; (2) the parties in the later action are identical or in privity with
those in the prior action; and (3) the claim in the later actions arose out of the
same transaction or occurrence as the claim in the earlier case. Watkins v.
A-3654-21
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Resorts Int'l Hotel & Casino, Inc., 124 N.J. 398, 412 (1991). "Claim preclusion
applies not only to matters actually determined in an earlier action, but to all
relevant matters that could have been so determined." Ibid.We are unpersuaded by Karpf's argument. On September 26, 2017, the
Commission "adjourn[ed] the hearing as to Count [III] . . . to permit counsel the
opportunity to discuss settlement." On June 25, 2019, a proposed consent order
in settlement of that remaining count was presented and rejected by the
Commission. On January 14, 2020, it transferred the matter to the OAL as to
remaining claims against Karpf. The transfer order noted that the "only
remaining issue to be adjudicated" was "the sole remaining Count of the OTSC,
Count [III], [which] alleged that Karpf had failed to maintain and supervise his
real estate office full-time."
It is clear there was no final adjudication on the merits of Count III
because it was not dismissed. Rather, the matter was merely adjourned for
settlement discussions. The Commission subsequently referred the matter for a
hearing before an ALJ. It was only after the Commission adopted, in part, the
ALJ's decision that this matter was adjudicated. Accordingly, there is no basis
to dismiss this matter as res judicata.
B.
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Karpf next asserts he maintained his Cherry Hill office in compliance with
N.J.S.A. 45:15-12. He argues he worked full-time as a broker, the office was
open and supervised seven days a week, and the Commission's OTSC was only
filed because Tatarek "misrepresented core . . . facts" regarding her
investigation. He claims Tatarek's testimony was inaccurate that she visited the
property ten to twelve times based on the DOBI Trip Records Sheets, which
revealed only four trips to Cherry Hill, and her other notes were never produced.
Moreover, the trip records do not specifically reference visits to Karpf's office.
Tatarek also observed Karpf at the office cutting up signs on one of the visits,
he answered the video doorbell on another occasion, and met with her on one
occasion.
Karpf also argues there was no testimony regarding what "usual business
hours" means for the purpose of N.J.A.C. 11:5-4.4(a) and that his usual business
hours were from 3:30 to 10:00 p.m. when he was not teaching. Moreover, he
claims the office was open during the week between 9:00 a.m. and 5:00 p.m.
when his father was working, and Deborah was in the office weekdays beginning
at 1:00 p.m. The office was also open on weekends. He also claims he was
permitted to have the door locked for security purposes, and the public could
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"obtain his services by telephone, email, text or in person." Karpf further
contends he was always accessible to his agents.
Lastly, Karpf argues he worked as a real estate broker full-time at least
fifty hours a week "every week of the year." He claims he did not work thirty-
five hours a week as a teacher. That is, although he was at school from 8:00
a.m. to 3:00 p.m., he only "worked" twenty-five hours a week as a teacher.
Moreover, "[b]efore, after and between classes" he made calls, corresponded by
email and text, reviewed paperwork, and searched the internet. He further
claims "it is unimportant as to whether [he] worked part-time or full-time as a
teacher" but rather when he worked full-time as a real estate broker.
The Commission is charged with administering the New Jersey Real
Estate License Act, N.J.S.A. 45:15-1 to -42. These responsibilities include
issuing real estate licenses to individuals and entities under N.J.S.A. 45:15-9,
investigating the activities of licensees, and imposing sanctions for violations of
the Act under N.J.S.A. 45:15-17. The Commission is also authorized to
promulgate rules and regulations for the conduct of the real estate brokerage
business. N.J.S.A. 45:15-17(t).
N.J.A.C. 11:5-4.4(a) states:
Every resident real estate broker not licensed as a
broker-salesperson shall maintain a main office for the
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transaction of business in the State of New Jersey,
which shall be open to the public during usual business
hours. This main office and the activities of the
licensees working from it shall be under the direct
supervision of either the broker . . . or of a person
licensed as a broker-salesperson. Such supervision
shall be maintained on a full[-]time basis. Maintaining
full-time supervision shall not be construed as requiring
the person performing the supervisory functions to be
present at the office location continuously during usual
business hours. However, the person performing the
supervisory functions shall provide sufficient
information so as to allow the personnel at the main
office to make communication with that person at all
times. Further, the licensee supervising the main office
shall be so employed on a full-time basis and, when not
required to be away from the office for reasons related
to the business of the office, shall be physically present
at that office during usual business hours at least five
days per calendar week (excluding vacations and
emergencies) and shall not be otherwise employed
during such time.
[(Emphasis added).]
During the rulemaking process in 1988, the Commission amended N.J.A.C.
11:5-4.4 (then codified as N.J.A.C. 11:5-1.18) to "ensure that employing brokers
and brokers of record are aware of their obligation to directly supervise their
primary office location" and to "eliminate any misunderstanding as to their
responsibility concerning office management during normal business hours." 20
N.J.R. 1160 (a) (June 6, 1988). The 1988 Commission noted that
A-3654-21
20
[consumers] will be assured that the broker's office is
properly supervised at all times. The presence of a
qualified licensee exerting supervisory authority over
all activities at an office on a full-time basis should help
to assure that quality service is provided to all members
of the public including those who may be dealing
directly with a relatively inexperienced licensee.
....
Brokers shall reap the financial rewards from satisfied
clients who have received real estate services overseen
by a senior licensee. Also, upon implementation of the
management procedures as required by the amendment,
many real estate enterprises should experience a
financial savings because of the reduction of
administrative errors and subsequent delays in
transactions which frequently result from poorly
managed offices. Furthermore, the amendment should
reduce the number of complaints from clients to brokers
and to the [Commission]. Thus, the Commission will
save the time and expense of investigating such
complaints and conducting hearings to resolve disputes
which frequently arise from a lack of adequate
supervision of some licensees.
[Id. at 1161 (emphasis added).]
Then in 1989, the Commission received comments on the amended
regulation and was expressly asked to address a similar situation as this case. A
commenter "expressed opposition to the amendment because it appeared . . . it
would limit a . . . broker of record who also teaches [real estate] prelicensure
A-3654-21
21
courses from teaching [those courses] during normal business hours." 21 N.J.R.
2523(a) (Aug. 21, 1989). The Commission responded:
Such a broker can continue to teach during those hours
so long as the broker's main office is supervised by a
licensed broker-salesperson during his or her absence.
The Commission determined that if such an
arrangement cannot be made, such a broker would have
to choose whether they wanted to keep their brokerage
as their primary occupation and, therefore, relegate
their instructional activities to a part-time status, or
make education their primary endeavor, in which case
they would work as a broker-salesperson for another
broker on a part-time basis.
[21 N.J.R. 2523(a) (Aug. 21, 1989) (emphasis added).]
Here, regarding the definition of "usual business hours" and "full-time
employment," the ALJ looked to N.J.A.C. 11:5-3.811 for guidance, but as the
Commission stated, "[o]f note" the ALJ found "usual business hours" were
defined as "[t]hose hours of the day during which, in a given community,
11
N.J.A.C. 11:5-3.8 addresses the experience requirement for licensure as a
broker. That regulation requires applicants seeking licensure as a broker to show
that they have been "continuously licensed and employed on a full-time basis as
a real estate salesperson during the three years immediately preceding their
application" with "full-time employment" demonstrated by working "as a
salesperson under the authority of the broker(s) with whom they were licensed
for at least [forty] hours per week and during the hours of approximately 10:00
[a.m.] to 8:00 [p.m.]" Ibid.A-3654-21
22
commercial, banking, professional, public, or other kinds of business are
ordinarily carried on," which "is . . . not the time during which a principal
requires an employee's services, but the business hours of the community
generally." Bus. Hours Definition & Legal Meaning, L. Dictionary,
https://thelawdictionary.org/business-hours/ (last visited Mar. 15, 2024).
Here, the Commission noted Karpf was the broker of record for his office
and there was no broker-salesperson working for him. Karpf was "continuously
employed full[-]time by the Philadelphia School District as a . . . teacher" from
2001 until 2014. He worked Monday through Friday from 8:00 a.m. to 3:00
p.m., September through June. It further determined while he was teaching in
Philadelphia, Karpf was not physically at his real estate office and could not be
reached by his staff or clients. Moreover, Tatarek, who the ALJ found to be
credible, conducted several unannounced visits at various times of the day, and
Karpf's office was closed to the public at those times, despite the testimony that
Arthur was there all day on most weekdays and that Deborah was present in the
afternoons.
The Commission was unpersuaded by the argument that Karpf maintained
a designated office open to the public during "his" usual business hours , and the
hours Karpf spent in the office after he was finished teaching did not satisfy
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N.J.A.C. 11:5-4.4. Moreover, it was unconvinced Karpf's office was open
during usual business hours on weekdays when he was teaching.
The Commission further referenced the ALJ's decision rejecting Karpf's
contention that he was a full-time broker who at all times supervised his real
estate office and was accessible to clients and sales representatives. It noted
Karpf's own testimony revealed he was a salaried employee at the Philadelphia
School District, and as such, he could not have simultaneously complied with
his obligation to be employed as a broker on a full-time basis at his real estate
office.
The Commission observed the ALJ's findings "were based both on the
documentary evidence and the testimony presented at the hearing, including the
testimony of Tatarek regarding her surveillance of [Karpf's] office and the
uncontroverted evidence that [he] was employed full-time as a teacher by the
School District of Philadelphia during normal business hours." The Commission
viewed Karpf's teaching responsibilities analogous to the 1989 inquiry made by
a broker who also had teaching responsibilities. It noted,
To be in compliance with N.J.A.C. 11:5-4.4(a), [Karpf]
faced the exact choice presented by the [broker in
1989]: he could hire a licensed broker-salesperson to
supervise his brokerage office during usual business
hours and provide the supervisory safeguards
contemplated by N.J.A.C. 11:5-4.4(a) or maintain the
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brokerage office as his primary occupation and
discontinue teaching.
[See 21 N.J.R. 2523(a) (Aug. 21, 1989).]
The Commission found Karpf "did neither and instead elected to intentionally
misrepresent and mischaracterize his teaching position—which required a
minimum commitment of [thirty-five] hours per week from 8:00 a.m. to 3:00
p.m. for the duration of the school year, from approximately September to
June—as 'part[-]time' employment."
The Commission found Karpf's attempt to minimize his work as a teacher
was "self-serving, disingenuous, and contrary to common sense." It further
determined he failed to ensure his agents were supervised on a full-time basis.
The Commission agreed with the ALJ's conclusion that Karpf was "unavailable
during 'usual business hours' as he could not be in two places at once nor could
his sales staff or clients reach him when he was teaching." Contrary to Karpf's
arguments regarding the credibility of Tatarek, the Commission found the ALJ's
findings were fully supported by the evidence and "the uncontroverted fact
remains that [Karpf] was employed full[-]time during normal business hours in
the Philadelphia school district when he had the responsibility to ensure his
broker's office . . . was open to the public and being properly supervised full [-
]time, in violation of N.J.A.C. 11:5-4.4(a)." The Commission further concluded
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Karpf's violations of N.J.A.C. 11:5-4.4(a), "which continued unabated for years
. . . based upon dubious reasoning" demonstrated "unworthiness, incompetence,
and bad faith" under N.J.S.A. 45:15-17(e).
We determine the Commission's comprehensive findings were not
arbitrary, capricious, or unreasonable, and there was ample evidence in the
record to support its conclusions that Karpf violated N.J.A.C. 11:5-4.4(a) and
N.J.S.A. 45:15-17(e). Specifically, there was substantial credible evidence
relied upon by the Commission in finding Karpf was not employed as a broker
on a full-time basis because he failed to: maintain and supervise his office on a
full-time basis; have the office open during usual business hours; and be
physically present during usual business hours five days a week pursuant to
N.J.A.C. 11:5-4.4(a). The Commission's reliance on Tatarek's testimony,
coupled with Karpf's admissions, outlined above, provided sufficient evidence
to support its findings. There was more than enough evidence to support the
allegations in the OTSC given Karpf's full-time employment as a teacher during
the time he was purportedly supervising the office. Moreover, there was
adequate evidence the office was not open to the public in violation of N.J.A.C.
11:5-4.4(a).
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Although Karpf raises issues challenging the credibility of Tatarek, we
find no basis to disturb the Commission's conclusions, which adopted the ALJ's
credibility findings. Again, we "may not substitute [our] own judgment for the
agency's, even though [we] might have reached a different result." Stallworth,
208 N.J. at 194 (quoting Carter, 191 N.J. at 483). "This is particularly true when
the issue under review is directed to the agency's special 'expertise and superior
knowledge of a particular field.'" Id. at 196 (quoting Herrmann, 192 N.J. at 28).
Accordingly, we discern no basis to disturb the Commission's findings as to the
violations of N.J.A.C. 11:5-4.4(a) and N.J.S.A. 45:15-17(e).
C.
Karpf next argues that N.J.A.C. 11:5-4.4 is "antiquated,
outmoded, . . . provides no legitimate governmental purpose[,] . . . no benefit to
the people of New Jersey[, and] therefore . . . cannot be enforced." In support
of this argument, Karpf relies on the testimony of two of his real estate agents
who testified the real estate industry has significantly changed since the creation
of the internet, which requires less of a need to physically be in an office. The
testimony highlighted how residential real estate customers do much of their
searching for properties online and often utilize virtual tours. Specifically, one
of the agents stated there will probably be a lesser need for agents in the future.
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Karpf also asserts the regulations are "about protectionism . . . to deter out of
state real estate companies from doing business in New Jersey solely through
the internet, since [they] charge" two-percent commissions instead of six-
percent, like in-state companies, which ultimately hurts the consumer. Karpf
also argues the language in N.J.A.C. 11:5-4.4(a) is void for vagueness.
When an executive agency exercises its rulemaking function, it is afforded
substantial deference. Commc'ns Workers of Am., AFL-CIO v. N.J. Civ. Serv.
Comm'n, 234 N.J. 483, 513-14 (2018). Thus, we must "defer to an agency's
interpretation of both a statute and implementing regulation, within the sphere
of the agency's authority, unless the interpretation is 'plainly unreasonable.'" In
re Election L. Enf't Comm'n Advisory Op. No. 01-2008, 201 N.J. 254, 262
(2010) (quoting Reilly v. AAA Mid-Atl. Ins. Co. of N.J., 194 N.J. 474, 485
(2008)). Moreover, we cannot substitute our judgment for that of the agency.
In re Polk, 90 N.J. 550, 578 (1982).
Given the substantial deference we afford to the Commission in
rulemaking, we are unpersuaded by Karpf's contentions. The regulations are not
plainly unreasonable. The Commission's interpretation and the implementation
of N.J.A.C. 11:5-4.4(a) is well within the reasonable bounds of agency
interpretation.
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Both the ALJ and the Commission found this argument unavailing relying
on Pipes's12 mandate that "a heavy burden is imposed upon those who challenge
the validity of a regulation . . . . The [p]etitioner must prove that the regulation
is arbitrary, unreasonable or non-compliant with the legislative mandate." The
Commission is charged with protection of the public, and their implementation
of this regulation is in accordance with such mandate. In Pipes, in addressing a
challenge to a different portion of the regulations, N.J.A.C. 11:5-3.8(a), we
observed:
The obvious purpose of the Commission's
regulation . . . is to ensure that real estate brokers
possess experience not only in the sale and lease of real
estate but also in the day-to-day operation of the
brokerage business such as the management of
fiduciary accounts, drafting of contracts, interaction
with financial institutions and other professionals
including supervision of real estate salespersons. In an
industry in which many salespersons work part-time or
primarily on weekends, the subject regulation is a
recognition that a full-time commitment to the real
estate brokerage business insures greater protection to
the public.
[329 N.J. Super. at 397 (citations omitted).]
This same rationale applies to N.J.A.C. 11:5-4.4(a). Moreover, if Karpf needed
clarification regarding the operation of his office under N.J.A.C. 11:5-4.4(a), he
12
In re Pipes, 329 N.J. Super. 391, 397 (App. Div. 2000).
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could have submitted an inquiry to the Commission for clarification. Further,
he could have submitted a petition for rulemaking pursuant to N.J.S.A. 52:14B-
4(f), if he believed the regulations needed to be changed. Accordingly, we reject
Karpf's arguments on this issue.
Nevertheless, we briefly note, given the significant changes in technology
since the amendments to N.J.A.C. 11:5-4.4(a) in 1988, it may be appropriate for
the Commission to revisit the regulations. We recognize N.J.A.C. 11:5-4.4(a)
was promulgated based on N.J.S.A. 45:15-12, which requires "[e]very real estate
broker shall maintain a designated main office open to the public." However,
the widespread utilization of the internet, the ubiquitous use of smartphones,
emails, text messaging, video conferencing, remote work, and the electronic
signing of documents has had a substantial impact on the way society conducts
business. The Commission should consider whether N.J.A.C. 11:5-4.4(a)
should be amended to account for these changes. Of course, this function is
entrusted to the Commission, not the courts. 13
13
In other highly regulated areas such as the practice of law, we have seen
changes such as the amendments to the bona fide office rule. See R. 1:21-1(a)(1)
(eliminating the requirement for an attorney to "maintain a fixed physical
location" to practice law). Still, to ensure "prompt and reliable communication"
between an attorney and client, Rule 1:21-1(a)(1) requires that "an attorney must
designate one or more fixed physical locations where client files and the
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Karpf also argues that certain terms in N.J.A.C. 11:5-4.4(a), such as "usual
business hours," "full-time basis," and "open to the public," are void for
vagueness. We are unpersuaded.
"The vagueness doctrine 'is essentially a procedural due process concept
grounded in notions of fair play.'" State v. Lenihan, 427 N.J. Super. 499, 512
(App. Div. 2012) (quoting State v. Lee, 96 N.J. 156, 165 (1984)). "The
vagueness doctrine is premised on the notion that the law must 'give the person
of ordinary intelligence a reasonable opportunity to know what is prohibited, so
that he may act accordingly.'" State v. Stafford, 365 N.J. Super. 6, 15 (App.
Div. 2003) (quoting Grayned v. City of Rockford, 408 U.S. 104, 108 (1972)).
"In determining vagueness, a common sense approach is appropriate in
construing the enactment in terms of the persons who may be subject to it, and
in context with its intended purpose." Ibid. (quoting Chez Sez VIII, Inc. v.
Poritz, 297 N.J. Super. 331, 351 (App. Div. 1997)). A statute need not be a
"model of precise draftsmanship" to "sufficiently describe[] the conduct that it
proscribes." State v. Afanador, 134 N.J. 162, 169 (1993).
attorney's business and financial records may be inspected on short notice by
duly authorized regulatory authorities, where mail or hand-deliveries may be
made and promptly received, and where process may be served on the attorney
for all actions, including disciplinary actions . . . ."
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N.J.A.C. 11:5-4.4(a) is not void for vagueness. Notwithstanding Karpf's
contention, the Commission adopted a reasonable and sensible reading of the
regulation and the terms "usual business hours," "full-time basis," and "open to
the public." We discern nothing in the regulation as unconstitutionally vague
based on the commonplace meaning of the terms used in the regulation.
D.
Karpf next asserts that this matter should be dismissed as his due process
rights were violated because the Commission relied on N.J.A.C. 11:5-3.8, which
was not charged in the OTSC. Alternatively, he contends N.J.A.C. 11:5-3.8
supports his position because he worked more than forty hours a week between
the hours of 10:00 a.m. and 8:00 p.m.
The Commission correctly noted Karpf was not found to have violated
N.J.A.C. 11:5-3.8. Instead, N.J.A.C. 11:5-3.8 was referenced by the ALJ as
guidance to interpret N.J.A.C. 11:5-4.4(a). Moreover, N.J.A.C. 11:5-3.8 is a
regulation that addresses salespersons seeking to become a broker and does not
alter the requirements for a broker under N.J.A.C. 11:5-4.4(a). Ultimately, as
noted by the Commission, even though the ALJ referenced N.J.A.C. 11:5-3.8,
she noted the definition of "usual business hours" were "those hours of the day
during which, in a given community, commercial, banking, professional, public,
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or other kinds of business are ordinarily carried on." The Commission further
determined "the uncontroverted fact remains that [Karpf] was employed
full[-]time during normal business hours [as a teacher] when he had the
responsibility to ensure his broker's office . . . was open to [the] public and being
properly supervised" pursuant to N.J.A.C. 11:5-4.4(a). Accordingly, we are
unconvinced by Karpf's contentions regarding N.J.A.C. 11:5-3.8.
E.
Karpf argues there should not be a penalty in this matter because: he did
not act in bad faith; did not profit from illegal activity; there was no injury to
the public; he reasonably believed there was no violation of a regulation; there
was no criminal conduct; and he had no past violations.
Under the Act, the Commission may take action against a licensee for the
violation of any of the provisions of the Act or the regulations promulgated
thereunder. N.J.S.A. 45:15-17(t). If a violation is found, it may place on
probation, suspend, or revoke the license of a real estate salesperson for "[a]ny
conduct which demonstrates unworthiness, incompetency, bad faith or
dishonesty." N.J.S.A. 45:15-17(e). The Commission may also impose "a
penalty of not more than $5,000 for the first violation, and a penalty of not more
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than $10,000 for any subsequent violation," in place of, or in addition to, any
license suspension or revocation. N.J.S.A. 45:15-17.
An agency has "broad discretion in determining the sanctions to be
imposed for a violation of the legislation it is charged with administering." In
re Scioscia, 216 N.J. Super. 644, 660 (App. Div. 1987). Correspondingly,
appellate courts have limited "review of an agency's choice of sanction . . . ." In
re License Issued to Zahl, 186 N.J. 341, 353 (2006). The appropriate test for
reversal is "whether such punishment is so disproportionate to the offense, in
light of all the circumstances, as to be shocking to one's sense of fairness." Id.
at 354 (internal quotation marks omitted) (quoting Polk, 90 N.J. at 578).
Our Supreme Court delineated a list of factors to consider in determining
whether an agency's monetary sanction is arbitrary, capricious, or unreasonable:
(1) the licensee's good or bad faith; (2) the licensee's ability to pay a financial
penalty; (3) the amount of profit earned from wrongful activity; (4) the extent
of any injury to the public; (5) the duration of the wrongful activity; (6) the
existence of any criminal actions; and (7) the existence of any prior violations.
Kimmelman, 108 N.J. 137-40.
As to the first Kimmelman factor, the Commission determined Karpf
demonstrated bad faith because he was aware of his responsibilities under the
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Act, "including the requirement to have his office open to the public during usual
business hours." Because it determined Karpf's arguments were disingenuous
and self-serving, this factor favored a higher monetary penalty.
The Commission found there was no evidence presented as to the second
Kimmelman factor—Karpf's ability to pay. It determined it was Karpf's burden
to prove his inability to pay a fine, and he failed to do so. Because it was not
met, the Commission viewed the factor as neutral.
As to the third Kimmelman factor, which addresses the profits obtained or
likely to be obtained from the illegal activity, the Commission observed the
profits obtained by Karpf were unclear but noted that he worked during normal
business hours while operating a real estate brokerage, which it determined
favored a monetary penalty.
Regarding the fourth Kimmelman factor—whether the licensee's conduct
caused an injury to the public—the Commission determined "the public is
harmed when licensees fail to comply with Commission regulations. When a
licensee is unable to conduct himself in accordance with the high stand ards
expected of him and his profession, the public's confidence in the real estate
industry is eroded." The Commission determined this factor weighed heavily in
favor of a higher monetary penalty.
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The fifth Kimmelman factor concerns the duration of the illegal activity.
The Commission concluded Karpf's conduct lasted for well over a decade, which
weighed in favor of a higher penalty.
The sixth Kimmelman factor required the Commission to determine the
existence of any criminal punishment and whether a civil penalty may be unduly
punitive if other sanctions had been imposed. The lack of criminal punishment
weighs in favor of a more significant civil penalty under Kimmelman. Id. at
139. Because Karpf had not suffered any criminal penalties, the Commission
determined this factor favored a higher monetary penalty.
The seventh, and last Kimmelman factor, required the Commission to
consider the previous relevant regulatory and statutory violations of the licensee.
It agreed that Karpf had held a broker's license since 1979 and had no history of
any regulatory or statutory violations, and therefore considered this a mitigating
factor in favor of Karpf.
Based on this analysis, the Commission modified the recommendations of
the ALJ and imposed a $5,000 monetary penalty. It appropriately considered
the Kimmelman factors prior to imposing the monetary sanction. We discern no
basis to disturb the finding as we cannot say the Commission's monetary
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36
sanction, even though more stringent than the ALJ's recommendation, "shock[s]
[our] sense of fairness." Herrmann, 192 N.J. at 28-29.
F.
We now direct our attention to the Commission's imposition of a three-
year suspension. It noted that given the "seriousness of [Karpf's] actions," it
modified the ALJ's recommendation of a two-year suspension to three years.
The Commission based its decision on its findings Karpf failed to: properly
supervise his office on a full-time basis; keep the office open to the public during
regular business hours; and be physically present during usual business hours at
least five days a week. This, coupled with the fact that this conduct occurred
over a period of several years, demonstrated unworthiness, incompetence, and
bad faith under N.J.S.A. 45:15-17(e). Lastly, the Commission expressed
concern regarding Karpf's "disingenuous and self-serving arguments" which it
determined demonstrated his lack of appreciation for the seriousness of his
conduct.
We are mindful of the deference we owe to the Commission with respect
to the imposition of sanctions such as a suspension. However, we conclude it
failed to properly consider the countervailing issues that would potentially serve
to mitigate the extent of such a suspension. For example, it is undisputed that
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this matter was not prompted by a customer complaint, but rather an anonymous
complaint. In fact, the Commission did not reference any history of customer
or agent complaints regarding the operation of Karpf's real estate office during
the forty years he operated his business. He had no past regulatory violations,
and there were no allegations of any misappropriation of funds. There was also
no specific injury to the public, and his conduct did not involve any criminal
activity.
Although we do not condone Karpf's actions, the record does demonstrate
an otherwise unblemished record, which the Commission overlooked.
Therefore, we direct the Commission to consider the mitigating evidence on
remand in deciding an appropriate suspension. Although we recognize the
Kimmelman factors are traditionally utilized to evaluate monetary fines, certain
factors may, nevertheless, be considered by the Commission in determining
whether to impose a suspension. For example, the Commission may consider
the licensee's good or bad faith; the amount of profit earned from wrongful
activity; the extent of any injury to the public; the duration of the wrongful
activity; the existence of any criminal actions (which may, contrary to this
factor's application under Kimmelman for the purposes of monetary damages,
actually be viewed as a mitigating factor in the absence of criminal conduct for
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the purposes of a suspension); the existence of any prior violations; and any
other factors deemed relevant by the Commission in its sound discretion to
impose an appropriate and fair sanction.
To the extent we have not specifically addressed any of Karpf's remaining
arguments, we conclude they lack sufficient merit to warrant discussion in a
written opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, vacated in part, and remanded for further proceedings
consistent with this opinion. We do not retain jurisdiction.
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