Real Estate Commission v. Vizzi , 2019 COA 33 ( 2019 )

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
March 7, 2019
2019COA33
No. 17CA2388, Colorado Real Estate Commission v. Vizzi —
Administrative Law — Professions and Occupations — Real
Estate Brokers and Salespersons — Brokerage Relationships —
Transaction-brokers
A division of the court of appeals considers whether a licensed
real estate broker can contract away his statutorily required
obligations as a transaction-broker under section 12-61-807(2),
C.R.S. 2018. Interpreting section 12-61-807(2) and related
provisions, the division determines that a transaction-broker’s
statutory duties are mandatory and cannot be contracted away.
The division also concludes that the Colorado Real Estate
Commission’s discipline of the appellant broker for failing to
perform his statutory duties fell within the Commission’s statutory
authority and did not violate federal antitrust laws. The division
determines that the Commission’s decision not to disclose the
identity of the informant who brought appellant’s actions to the
Commission’s attention did not violate appellant’s due process
rights.
Accordingly, the division affirms the Commission’s final order
disciplining appellant for failing to comply with the mandatory
duties of a transaction-broker under section 12-61-807(2).
COLORADO COURT OF APPEALS 2019COA33
Court of Appeals No. 17CA2388
Colorado Real Estate Commission
Case No. RC 2015-0013
Colorado Real Estate Commission,
Petitioner-Appellee,
v.
John J. Vizzi,
Respondent-Appellant.
ORDER AFFIRMED
Division V
Opinion by JUDGE TERRY
J. Jones and Nieto*, JJ., concur
Announced March 7, 2019
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
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶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
1
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.
2
¶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
3
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
4
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.
5
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.
6
¶ 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 pursuant to section 12-61-808, C.R.S.
2018.
A. Mandatory Duties or Default Duties?
¶ 24 The statutory duties of transaction brokers are detailed in
sections 12-61-807 to -808.
¶ 25 Vizzi interprets sections 12-61-807 and -808 together to mean
that section 12-61-807(2) sets forth only default duties — not
mandatory duties — for transaction-brokers. We disagree.
¶ 26 Section 12-61-802(6) defines “transaction-broker” as “a broker
who assists one or more parties throughout a contemplated real
7
estate transaction with communication, interposition, advisement,
negotiation, contract terms, and the closing of such real estate
transaction without being an agent or advocate for the interests of
any party to such transaction.” (Emphasis added.) The
legislature’s use of the words “throughout” and “and” indicates that
it intended a transaction-broker to assist in the entire transaction
and to undertake each of the listed activities.
¶ 27 Section 12-61-807(2) sets out the duties of a transaction-
broker. It provides that “[a] transaction-broker shall have the
following obligations and responsibilities . . . .” Id. (emphasis
added). Absent a clear indication of contrary legislative intent, the
word “shall” in a statute generally indicates that the legislature
intended the listed provisions to be mandatory. See DiMarco v.
Dep’t of Revenue, Motor Vehicles Div., 857 P.2d 1349, 1352 (1993);
cf. People v. Back, 2013 COA 114, ¶ 25 (concluding that, while the
generally accepted meaning of “shall” is that it is mandatory, it can
also mean “should” or “may” depending on legislative intent).
¶ 28 The provisions of the transaction-broker statutes indicate that
the term “shall” in section 12-61-807(2) specifies mandatory duties.
It would be illogical and would frustrate the legislature’s intent to
8
interpret the word “shall” as merely permissive, given the lengthy
list of “obligations” in subsection (2) of the statute, including the
requirement that a transaction-broker “comply with all
requirements of this article and any rules promulgated pursuant to
this article.” § 12-61-807(2)(c) (emphasis added).
¶ 29 The duties listed in section 12-61-807(2)(a)-(d) are numerous
and broad. They are consistent with the wide array of activities
contemplated in the definition of a transaction-broker in section 12-
61-802(6). Further, the consistency between the statutory
definition of a transaction-broker and the statutory duties that a
transaction-broker “shall” have parallels the statutory definition of
a single agent and the statutory duties that a single agent “shall”
have. See § 12-61-802(4) (defining “single agent” as “a broker who
is engaged by and represents only one party in a real estate
transaction”); § 12-61-805 (using the word “shall” to describe the
duties of a single agent). We construe these sections in light of each
other. See Krol v. CF & I Steel, 2013 COA 32, ¶ 15 (reviewing court
must give consistent, harmonious, and sensible effect to all
language of a statute).
9
¶ 30 The General Assembly declared its intent in creating this
statutory scheme as follows:
The general assembly finds, determines, and
declares that the public will best be served
through a better understanding of the public’s
legal and working relationships with real estate
brokers and by being able to engage any such
real estate broker on terms and under
conditions that the public and the real estate
broker find acceptable. This includes engaging
a broker as a single agent or transaction-
broker. Individual members of the public
should not be exposed to liability for acts or
omissions of real estate brokers that have not
been approved, directed, or ratified by such
individuals. Further, the public should be
advised of the general duties, obligations, and
responsibilities of the real estate broker they
engage.
§ 12-61-801(1), C.R.S. 2018 (emphasis added).
¶ 31 Though the legislature emphasized the importance of the
public’s ability to engage real estate brokers on terms that both the
public and real estate brokers “find acceptable,” it also limited that
ability. There are only two roles for which the public can engage a
real estate broker: single agent or transaction-broker. See § 12-61-
803(1).
¶ 32 The statutes do not say that the public can engage a real
estate broker to provide unbundled brokerage services, or in any
10
manner that the broker and customer might find mutually
acceptable.
¶ 33 Vizzi argues that the duties listed in section 12-61-807 are
mere “defaults,” and that a broker can contract for the performance
of only certain limited duties. We are not persuaded. If the
transaction-broker duties in section 12-61-807 — and the parallel
single agent duties in section 12-61-805 — were mere defaults, a
transaction-broker or a single agent would be able to contract out of
the required statutory duties and, in essence, cease acting as a
transaction-broker or single agent as defined by statute.
¶ 34 The ALJ found that in entering into certain contracts he
drafted, Vizzi “intended not to act as a transaction-broker,” and
manifested that intent by inserting language into the contracts
disclaiming the duties of such a broker. We will not disturb those
findings because they are supported by the record.
¶ 35 Allowing Vizzi to disclaim the role of transaction-broker would
contravene the statutory scheme. See § 12-61-801. The relevant
statutes were drafted to create the role of transaction-broker and
distinguish it from the role of single agent, and not to enable
licensed real estate professionals to avoid the statutorily required
11
duties of a transaction-broker. See Hoff & Leigh, Inc. v. Byler, 62
P.3d 1077, 1078 (Colo. App. 2002) (discussing the legislative history
and purpose of sections 12-61-801 to -810); see also §§ 12-61-
801, -803.
B. Section 12-61-808(2)(a)(III)
¶ 36 In arguing that the section 12-61-807(2) duties are merely
defaults, and are not strictly required, Vizzi points to section 12-61-
808(2)(a)(III), which covers the disclosure of contractual obligations
that transaction-brokers undertake.
¶ 37 Section 12-61-808(2)(a)(III) provides, “[i]f the transaction-
broker undertakes any obligations or responsibilities in addition to
or different from those set forth in section 12-61-807, such
obligations or responsibilities shall be disclosed in a writing which
shall be signed by the involved parties.” (Emphasis added.)
¶ 38 Vizzi points us to Wolford v. Pinnacol Assurance, 107 P.3d 947,
951 (Colo. 2005), which says that courts should interpret statutes
to avoid rendering words redundant or superfluous. Based on this
proposition, he argues that the Commission’s interpretation that he
could not modify the duties set out in section 12-61-807 would
12
impermissibly render superfluous the phrase “different from” in
section 12-61-808(2)(a)(III). According to Vizzi, section 12-61-
808(2)(a)(II) modifies section 12-61-807(2) to allow an agent to enter
into an agreement to provide fewer services than those enumerated
in section 12-61-807. This interpretation is not supported by the
statute.
¶ 39 Could the legislature have intended to allow a transaction-
broker to contract his way out of having to perform the required
duties that the legislature — with great specificity — enumerated in
section 12-61-807(2)? Such a reading is highly implausible.
¶ 40 We acknowledge that the “different from” language in section
12-61-808(2)(a)(III) distinguishes that statute from the language of
section 12-61-803, which defines relationships between brokers
and the public. Section 12-61-803(5) says, “[n]othing contained in
this section shall prohibit the public from entering into written
contracts with any broker which contain duties, obligations, or
responsibilities which are in addition to those specified in this part
8.” (Emphasis added.)
¶ 41 But we do not interpret the “different from” language in
section 12-61-808(2)(a)(III) as permitting a transaction-broker to
13
contract to provide fewer services than those listed in section 12-
61-807. Instead, the legislature intended the services enumerated
in section 12-61-807 to be mandatory. We reach this conclusion
for the following reasons.
¶ 42 As the Commission argues, section 12-61-808(2)(a)(III) —
addressing when a transaction-broker “undertakes any obligations
or responsibilities . . . different from those set forth in section 12-
61-807” — does not refer specifically to the mandatory duties listed
in section 12-61-807(2). Thus, contrary to Vizzi’s argument, section
12-61-808(2)(a)(III) would not allow a broker to contract out of
mandatory statutory duties.
¶ 43 Instead, we construe the “different from” language of section
12-61-808 to refer to three provisions of section 12-61-807:
subsection (3) (“information shall not be disclosed by a transaction-
broker without the informed consent of all parties”); subsection (4)
(a “transaction-broker has no duty to conduct an independent
inspection of the property” or “to independently verify the accuracy
or completeness of statements made by the seller, landlord, or
independent inspectors”); and subsection (5) (a “transaction broker
has no duty to conduct an independent investigation of the buyer’s
14
or tenant’s financial condition or to verify the accuracy or
completeness of any statement made by the buyer or tenant”).
¶ 44 Thus, the parties may alter those default provisions by
requiring the broker to take on duties in addition to those listed.
See § 12-61-803(5) (“Nothing contained in this section shall prohibit
the public from entering into written contracts with any broker
which contain duties, obligations, or responsibilities which are in
addition to those specified in this part 8.”).
¶ 45 For example, subsection (3) would allow certain information to
be disclosed by a transaction-broker if all parties provide informed
consent. If — but only if — such consent is given, the transaction-
broker can deviate from the default statutory duty of nondisclosure
for the following matters detailed in that subsection:
The following information shall not be disclosed
by a transaction-broker without the informed
consent of all parties:
(a) That a buyer or tenant is willing to pay
more than the purchase price or lease rate
offered for the property;
(b) That a seller or landlord is willing to
accept less than the asking price or lease rate
for the property;
(c) What the motivating factors are for
any party buying, selling, or leasing the
property;
15
(d) That a seller, buyer, landlord, or
tenant will agree to financing terms other than
those offered;
(e) Any facts or suspicions regarding
circumstances which may psychologically
impact or stigmatize any real property
pursuant to section 38-35.5-101, C.R.S.; or
(f) Any material information about the
other party unless disclosure is required by
law or failure to disclose such information
would constitute fraud or dishonest dealing.
§ 12-61-807(3)(a)-(f) (emphasis added).
¶ 46 If the transaction-broker entered into an agreement that
allowed disclosure of any of the matters listed above, the broker
would, indeed, be permissibly contracting to “undertake[] any
obligation[] or responsibilities . . . different from” the default
responsibility of nondisclosure of those matters “set forth in section
12-61-807.” § 12-61-808(2)(a)(III).
¶ 47 Moreover, section 12-61-808 deals not with a broker’s duties,
but only with required disclosures. As a result, an interpretation of
section 12-61-808 as somehow modifying the required duties set
forth in section 12-61-807 would frustrate the legislature’s intent.
¶ 48 And section 12-61-808(2)(a)(III) provides that if responsibilities
different from those listed in 12-61-807 are engaged in, “such
obligations or responsibilities shall be disclosed.” (Emphasis added.)
16
The italicized language would make no sense if the broker’s
statutory obligations or responsibilities were being eliminated. It
only makes sense if obligations or responsibilities are being added
to those required by statutes.
¶ 49 As the ALJ and the Commission noted, Vizzi’s interpretation
would also lead to absurd results, by, for example, allowing him to
contract out of the statutory mandate to comply with “any
applicable federal, state, or local laws, rules, regulations, or
ordinances including fair housing and civil rights statutes or
regulations.” See § 12-61-807(2)(d); see also Whitman v. Am.
Trucking Ass’ns, 531 U.S. 457, 468 (2001) (Legislatures do not
“alter the fundamental details of a regulatory scheme in vague
terms or ancillary provisions.”); Asphalt Specialties Co. v. City of
Commerce City, 218 P.3d 741, 746 (Colo. App. 2009) (A court “will
not construe statutes or ordinances in such a manner as to
frustrate their purposes or lead to an absurd or unreasonable
result.”).
¶ 50 We conclude that the provisions of section 12-61-808 do not
permit a broker to contract away any of the required statutory
duties.
17
V. Support for Commission’s Determination
¶ 51 In light of our construction of the statutory provisions
discussed above, we conclude that the record supports the
Commission’s adoption of the ALJ’s findings that Vizzi violated
sections 12-61-113(1)(k), 12-61-113(1)(n), and 12-61-803(1), and
we therefore uphold the Commission’s determination to discipline
Vizzi.
VI. Federal Antitrust Law
¶ 52 Citing Dental Examiners, 574 U.S. ___, 135 S. Ct. 1101, Vizzi
argues here, as he did below, that the Commission’s policy
prohibiting the provision of limited real estate services violates
federal antitrust law. According to Vizzi, “the Commission’s
enforcement of ‘minimum services’ does not stem from formal
rulemaking or statute” but merely from an “unenforceable position
statement,” apparently referencing the Commission’s “Position on
Minimum Service Requirements.” See Dep’t of Regulatory Agencies,
Div. of Real Estate, CP-36 Commission Position on Minimum
Service Requirements. He argues that the Commission is
“dominated by market participants — three real estate brokers and
two representatives of the public at large,” and that, under Dental
18
Examiners, the Commission’s policy violates federal antitrust laws.
We consider and reject these arguments.
A. Legal Standards
¶ 53 The Supreme Court in Parker v. Brown, 317 U.S. 341, 350-51
(1943), “interpreted the antitrust laws to confer immunity on
anticompetitive conduct by the States when acting in their
sovereign capacity.” Dental Examiners, 574 U.S. at ___, 135 S. Ct.
at 1110. A state legislature may delegate the power to regulate a
profession to a state agency on which a controlling number of
decision-makers are active market participants in that profession,
and, in some cases, the actions of that state agency will be immune
to federal antitrust law. See id. at ___, 135 S. Ct. at 1111.
¶ 54 To determine whether such a state agency’s actions are
considered the actions of the state in its sovereign capacity and
thus shielded from federal antitrust law, we apply the two-part test
set forth in California Retail Liquor Dealers Ass’n v. Midcal
Aluminum, Inc., 445 U.S. 97, 100 (1980). Dental Examiners, 574
U.S. at ___, 135 S. Ct. at 1111-12. Under the Midcal test, a state
agency’s allegedly anticompetitive conduct will be shielded by state-
action immunity from federal antitrust law if, “first, the State has
19
articulated a clear policy to allow the anticompetitive conduct, and
second, the State provides active supervision of [the]
anticompetitive conduct.” Dental Examiners, 574 U.S. at ___, 135
S. Ct. at 1112 (quoting Fed. Trade Comm’n v. Ticor Title Ins. Co., 445
U.S. 621, 631 (1992)).
¶ 55 Midcal’s clear articulation requirement is satisfied “where the
displacement of competition [is] the inherent, logical, or ordinary
result of the exercise of authority delegated by the state
legislature. In that scenario, the State must have foreseen and
implicitly endorsed the anticompetitive effects as consistent with its
policy goals.” Fed. Trade Comm’n v. Phoebe Putney Health Sys.,
Inc., 568 U.S. 216, 229 (2013). Midcal’s active supervision
requirement demands “realistic assurance that a private party’s
anticompetitive conduct promotes state policy, rather than merely
the party’s individual interests.” Patrick v. Burget, 486 U.S. 94, 101
(1988). The active supervision requirement also mandates that “the
State exercise ultimate control over the challenged anticompetitive
conduct.” Id.20
B. Analysis
¶ 56 We conclude that the Commission’s enforcement of the section
12-51-807(2) duties against Vizzi satisfies both the clear
articulation and active supervision requirements described in
Midcal. Such enforcement lies within the bounds of the state’s
statutory scheme and is properly considered state sovereign action,
shielded from federal antitrust law.
¶ 57 The “clear articulation” prong is met by section 12-61-802(6),
which defines “transaction-broker”; section 12-61-801, which sets
out the General Assembly’s policy goals in regulating transaction-
brokers; and section 12-61-807, which sets out mandatory
obligations for transaction-brokers. Notably, by setting out
mandatory duties, section 12-61-807(2) precludes transaction-
brokers from providing real estate services that are more limited
than those required by statute. We thus conclude that the General
Assembly has “foreseen and implicitly endorsed” the prohibition of
practices engaged in by Vizzi here. See Phoebe Putney Health Sys.,
568 U.S. at 229.
¶ 58 The “active supervision” prong is met by section 12-61-
101(2)(a), which defines what constitutes the practice of a real
21
estate broker, and section 12-61-113, which authorizes the
Commission to investigate and censure licensed real estate brokers
for violations of state license laws. Together, these sections give a
“realistic assurance” that the Commission, in disciplining Vizzi for
violating the section 12-61-807(2) duties, acted within its statutory
purview and thus to promote state policy. See Burget, 486 U.S. at
100.
¶ 59 In Dental Examiners, the Supreme Court based its decision on
a lack of proof indicating that the state legislature intended North
Carolina’s Board of Dental Examiners to have oversight of tooth
whitening, 574 U.S. at ___, 135 S. Ct. at 1116, and the Court’s
concern that the Board’s action may have been motivated by
anti-competitive animus, id. at ___, 135 S. Ct. at 1114 (“When a
State empowers a group of active market participants to decide who
can participate in its market, and on what terms, the need for
supervision is manifest.”).
¶ 60 The considerations that motivated the Supreme Court’s
decision in that case are not present here.
¶ 61 First, Vizzi’s actions fell within the Commission’s statutory
purview. It was uncontested that Vizzi’s actions, such as posting
22
properties on the MLS, constituted the practice of a real estate
broker. It was also uncontested that the Commission’s statutory
purview is the regulation of the practice of real estate brokers. In
contrast, in Dental Examiners, it was unclear whether tooth
whitening constituted the practice of dentistry and, thus, whether
tooth whitening fell within the statutory purview of North Carolina’s
Board of Dental Examiners.
¶ 62 Second, unlike in Dental Examiners, there is no support in the
record for the notion that the Commission’s enforcement actions
were motivated by anticompetitive animus.
¶ 63 Thus, Dental Examiners is simply inapposite.
¶ 64 For two reasons, we reject Vizzi’s conclusory argument that
“the Commission’s position conflicts with the Department of
Justice’s interpretation of Colorado law.” First, we see no reason
why, even if Vizzi’s contention is true, any such interpretation of
Colorado law would be binding on us. Second, Vizzi does not
explain this contention and instead cites only the written exceptions
he filed to the Commission’s decision. See People v. Diefenderfer,
784 P.2d 741, 752 (Colo. 1989) (it is the duty of counsel for the
appealing party to inform the reviewing court as to the specific
23
errors relied on, as well as the grounds, supporting facts, and
authorities therefor).
¶ 65 We thus conclude that Vizzi has not established a violation of
federal antitrust law.
VII. Anonymous Complainant
¶ 66 Vizzi next maintains that the ALJ violated his due process
rights by denying his motion to compel disclosure of the identity of
the anonymous complainant. We are not persuaded.
¶ 67 We review discovery rulings for an abuse of discretion. Silva v.
Basin W., Inc., 47 P.3d 1184, 1188 (Colo. 2002).
¶ 68 Vizzi has not shown how the complainant’s identity was
relevant to his ability to defend against the Commission’s charges.
Vizzi was given notice of all of the Commission’s witnesses and
exhibits — the totality of evidence which supported the charges
against him. Cf. Copley v. Robinson, 224 P.3d 431, 436 (Colo. App.
2009) (resident’s due process rights were violated where he was
denied a gun permit on a basis unknown to him at the time of his
hearing).
¶ 69 The ALJ’s initial decision and the Commission’s final judgment
stated the grounds, law, and reasoning for their respective
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decisions, which did not rely on anything extraneous to the record.
Cf. id. (resident’s due process rights were violated where sheriff’s
summary denial of his gun permit stated no grounds, facts, law, or
reasoning to support the denial of the permit). We thus conclude
that the Commission did not err in upholding the ALJ’s denial of
Vizzi’s motion to compel disclosure of the anonymous complainant.
See In re Dist. Court, 256 P.3d 687, 691 (Colo. 2011).
VIII. Imposition of Public Censure
¶ 70 Vizzi argues that the Commission exceeded its statutory
authority and thus violated his due process rights when it imposed
public censure after the ALJ had imposed only a fine and
continuing education. Alternatively, he argues that the
Commission’s decision to impose public censure, given the ALJ’s
choice not to, was arbitrary and capricious. We disagree with these
contentions.
¶ 71 In Colorado Real Estate Commission v. Hanegan, 947 P.2d 933,
935-36 (Colo. 1997), the Colorado Supreme Court upheld the
Commission’s imposition of public censure of a real estate broker
after an ALJ, in his initial decision, had imposed only a fine. The
Hanegan court concluded that, “[a]s long as the record as a whole
25
provides sufficient evidence that the penalty is not manifestly
excessive in relation to the misconduct and the public need, the
penalty will be upheld.” Id. at 937. There, the sanctioned broker
was one of only a few brokers to fail to take a required eight-hour
course. Id. at 934.
¶ 72 Vizzi violated his statutory duties multiple times after the
Commission’s December 2010 position statement put him on notice
that the listing contracts he prepared in 2013 and 2014 were
improper.
¶ 73 Applying Hanegan, we conclude that the Commission acted
within its statutory authority by imposing a sanction beyond that
imposed by the ALJ, and that the Commission’s sanction bore some
relation to Vizzi’s misconduct and to the needs of the public. See
id. at 936-37; see also § 24-4-105(15)(b), C.R.S. 2018 (granting
Commission authority to “affirm, set aside, or modify the order or
any sanction or relief entered therein, in conformity with the facts
and the law”).
¶ 74 We reach this conclusion even though the Commission did not
file exceptions to the ALJ’s initial decision, because Vizzi’s sanction
was still an issue presented by the record. See § 24-4-105(15)(a)
26
(For administrative appeals, the scope of review is “within the scope
of the issues presented on the record.”); cf. Cornell v. State of Colo.
Bd. of Pharmacy, 813 P.2d 771, 772-73 (Colo. App. 1990) (where
the Colorado State Board of Pharmacy increased the disciplinary
sanction on a pharmacist after the ALJ’s initial decision, it did not
exceed its jurisdiction, even though the agency did not file
exceptions).
¶ 75 And the public censure penalty was sought in the original
charge against Vizzi. Thus, he had a full and fair opportunity to
argue about the appropriateness of this penalty.
IX. Conclusion
¶ 76 The order is affirmed.
JUDGE J. JONES and JUDGE NIETO concur.
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