Collateral Mgt., L.L.C. v. Ohio Dept. of Commerce ( 2021 )


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  • [Cite as Collateral Mgt., L.L.C. v. Ohio Dept. of Commerce, 
    2021-Ohio-1641
    .]
    IN THE COURT OF APPEALS OF OHIO
    TENTH APPELLATE DISTRICT
    Collateral Management LLC,                           :
    Appellant-Appellant,                 :
    No. 20AP-123
    v.                                                   :                   (C.P.C. No. 19CV-7044)
    Ohio Department of Commerce,                         :               (REGULAR CALENDAR)
    Division of Real Estate & Professional
    Licensing,                                           :
    Appellee-Appellee.                   :
    D E C I S I O N
    Rendered on May 11, 2021
    On brief: Taft Stettinius & Hollister LLP, Kathryn S.
    Wallrabenstein, and Julia McNeil Danish, for appellant.
    Argued: Margaret Paige Ammons.
    On brief: Dave Yost, Attorney General, and Brian R. Honen,
    for appellee. Argued: Brian R. Honen.
    APPEAL from the Franklin County Court of Common Pleas
    DORRIAN, P.J.
    {¶ 1} Appellant, Collateral Management LLC ("Collateral Management"), appeals
    the decision of the Franklin County Court of Common Pleas filed January 22, 2020,
    affirming the August 21, 2019 adjudication order issued by the Ohio Real Estate Appraiser
    Board ("the Board"). The common pleas court found the adjudication order was supported
    by reliable, probative, and substantive evidence and that the order was in accord with the
    law. For the following reasons, we affirm in part, reverse in part, and remand.
    No. 20AP-123                                                                               2
    I. Facts and Procedural History
    {¶ 2} Collateral Management is an appraisal management company ("AMC").
    Collateral Management is licensed in over 40 states. Jessica Massad is the owner and
    controlling person of Collateral Management. Massad testified she holds appraisal licenses
    in several other states. Massad held a residential real estate appraiser license in Ohio from
    2002 until she surrendered her license on February 7, 2011 by signing an affidavit. The
    affidavit states:
    Now comes affiant Jessica Massad-Turner * * * who for her
    affidavit averts and states the following, to-wit:
    1. I am currently a licensed residential real estate appraiser in
    the state of Ohio per §4763, et. seq. of the Ohio Revised Code;
    2. I am hereby voluntarily surrendering my Ohio residential
    real estate appraiser license;
    3. Upon surrender of my Ohio residential real estate appraiser
    license I shall immediately cease and desist all activity for
    which a residential real estate appraiser license is required in
    the state of Ohio;
    4. In voluntarily surrendering my Ohio residential real estate
    appraiser license, I shall not apply for an Ohio appraiser
    certificate, license or registration in the future.
    5. I have had the opportunity to seek legal counsel and obtain
    representation and advice before executing this affidavit. I
    voluntarily, knowingly and intelligently execute this affidavit
    with full knowledge of its significance.
    Further affiant sayeth naught.
    The record reflects the affidavit was received by the Ohio Department of Commerce
    Division of Real Estate and Professional Licensing ("the division") on February 9, 2011.
    {¶ 3} On December 19, 2018, Collateral Management filed an application for an
    Ohio AMC license with the division. On April 23, 2019, the superintendent of the division
    sent a letter to Massad denying Collateral Management's application. On April 30, 2019,
    Collateral Management, by and through counsel, requested a hearing to have the denial of
    Collateral Management's Ohio AMC application reviewed before the Board. A hearing was
    held before the Board on August 15, 2019, which was comprised of a chairman and four
    No. 20AP-123                                                                                3
    board members. Appearing before the Board were counsel for the division, counsel for
    Collateral Management, and Massad, as owner and controlling person of Collateral
    Management. Counsel for the Board provided a brief history of AMC regulation under 12
    U.S.C. 3353 regarding the establishment of minimum requirements and limitations to be
    applied by a state in the registration of an AMC in order to provide background on Ohio's
    AMC statute which was enacted just eight months prior to the hearing. Massad was the
    only witness, testifying on direct and cross-examination and answering questions from the
    Board.
    {¶ 4} At the conclusion of testimony, and after deliberation off the record, the
    chairman of the Board moved for a decision to "approve and adopt the decision of the
    Superintendent to deny Collateral Management's license application to be an Ohio
    appraisal management company for the same reasons as set forth in the Superintendent's
    denial notice dated April 23, 2019." (Tr. at 56.) After some discussion on the record by
    members of the Board, the remaining four members voted to second the chairman's motion
    and ruled that the superintendent's decision was approved and adopted. An adjudication
    order adopting the decision of the Board was sent to Collateral Management, in care of
    Massad, on August 21, 2019.
    {¶ 5} On August 28, 2019, Collateral Management filed an administrative appeal
    in the common pleas court in accord with R.C. 119.12. The common pleas court affirmed
    the adjudication order issued by the Board on January 22, 2020 finding it was supported
    by reliable, probative, and substantial evidence and in accord with the law.
    {¶ 6} Collateral Management timely appeals.
    II. Assignments of Error
    {¶ 7} Appellant assigns the following three assignments of error for our review:
    [I.] The Common Pleas Court erred in deferring to the Real
    Estate    Appraiser     Board's   ("Board's")   unreasonable
    interpretation of the law regarding "substantive reason" and
    erred in affirming the Board's decision as it was not in
    accordance with the law.
    [II.] The Common Pleas Court erred in deferring to the Board's
    unreasonable interpretation of the law regarding whether the
    surrender was "in lieu of revocation" and erred in affirming the
    Board's decision as it was not in accordance with the law.
    No. 20AP-123                                                                              4
    [III.] The Common Pleas Court erred in affirming the Board's
    decision, which violated Appellant's due process rights.
    III. Analysis
    A. Standard of Review
    {¶ 8} Under R.C. 119.12, when a common pleas court reviews an order of an
    administrative agency, the common pleas court must consider the entire record to
    determine whether reliable, probative, and substantial evidence supports the agency's
    order, and the order is in accordance with law. Univ. of Cincinnati v. Conrad, 
    63 Ohio St.2d 108
    , 110-11 (1980); see also Andrews v. Bd. of Liquor Control, 
    164 Ohio St. 275
    , 280
    (1955). Instead of appraising the weight of the evidence, an appellate court determines
    whether the common pleas court abused its discretion in its examination of the record for
    reliable, probative, and substantial evidence. Natoli v. Ohio State Dental Bd., 
    177 Ohio App.3d 645
    , 
    2008-Ohio-4068
    , ¶ 13 (10th Dist.). An abuse of discretion occurs when a
    decision is unreasonable, arbitrary, or unconscionable. Blakemore v. Blakemore, 
    5 Ohio St.3d 217
    , 219 (1983). On questions of whether the agency's decision was in accordance
    with law, we exercise plenary review. Gralewski v. Ohio Bur. of Workers' Comp., 
    167 Ohio App.3d 468
    , 
    2006-Ohio-1529
    , ¶ 17 (10th Dist.).
    B. First Assignment of Error
    {¶ 9} Collateral Management argues in its first assignment of error that the Board
    eliminated the "substantive reason" element of R.C. 4768.06(B)(4) and the common pleas
    court erred in affirming the Board's misinterpretation and application of the same.
    Collateral Management further argues that, in effect, the common pleas court eliminated
    the requirement that a voluntary surrender be undertaken for a substantive reason to
    trigger the prohibition on the granting of an AMC license. See R.C. 4768.06(B)(4). In
    support of its premise that the Board misinterpreted the law, Collateral Management
    maintains the Board must contemplate the reason behind the surrender, which would
    include consideration of: (1) the guidance set forth in 80 Fed.Reg. 32671, (2) the merits of
    the pending complaints filed by the division against Massad, and (3) the reason(s) for
    voluntary surrender as given by Massad herself.
    {¶ 10} R.C. 4768.06(B)(4) states:
    No. 20AP-123                                                                                5
    Each owner and controlling person of an appraisal
    management company shall * * * [h]ave not had a license,
    certificate, or registration to act as an appraiser that has been
    refused, denied, canceled, surrendered, or revoked in this state
    or in any other state for a substantive reason. A designated
    controlling person may have had a license or certificate to act
    as an appraiser refused, denied, canceled, revoked, or
    surrendered in lieu of revocation in a state for a nonsubstantive
    reason if the license or certificate was subsequently granted or
    reinstated[.]
    (Emphasis added).
    {¶ 11} In relevant part, the plain language states that the controlling person, in this
    case Massad, shall have not had a license to act as an appraiser surrendered for a
    substantive reason.
    {¶ 12} In support of the argument that the Board and the common pleas court
    eliminated the "substantive reason" element, Collateral Management first points to 80
    Fed.Reg. 32671 and states that the Board was required to consider the same in determining
    what constitutes a "substantive reason" for surrender of Massad's license. Collateral
    Management asserts that 80 Fed.Reg. 32671 "unambiguously define[s]" "substantive
    reason" as requiring a showing of fraud or a known failure to perform an appraisal in
    compliance with the Uniform Standards of Professional Appraisal Practice ("USPAP") that
    rose to the level of warranting a revocation as the definition of "substantive." 80 Fed.Reg.
    32658, 32671. (Appellant's Reply Brief at 6-7.) In its brief, the Board also puts forth that
    the federal register citation "specifically defines" the term "substantive," as revocation for
    failure to comply with the USPAP. 80 Fed.Reg. 32671. (Appellee's Brief at 16-17.) The
    Board argues the "unrebutted" allegations pending against Massad at the time of her
    surrender would fall under the definition of substantive.          (Appellee's Brief at 16.)
    Conversely, Collateral Management believes the Board was required to look at the merits
    of the complaints that reached the opportunity for hearing stage in order to determine
    whether the basis would have risen to the level of a violation of the USPAP as given in the
    discussion in the federal guidance. 80 Fed.Reg. 32671.
    {¶ 13} Although Collateral Management did argue before the common pleas court
    that the Board erred in its interpretation and application of R.C. 4768.06(B)(4) by not
    considering whether the surrender was for a substantive reason, Collateral Management
    No. 20AP-123                                                                                               6
    did not specifically argue 80 Fed.Reg. 32671 in support thereof. The Board, however, did
    point to the Federal Register before the common pleas court in support of its position that
    "substantive" had acquired a particular meaning. The common pleas court did not address
    either party's argument specific to 80 Fed.Reg. 32671.
    {¶ 14} 80 Fed.Reg. 32671, Chapter III, Final Rule and Public Comments on the
    Proposed Rule, Section 34.214(a),1 states:
    Some commenters suggested that the Agencies consider
    circumstances in which an appraiser's license lapsed or was
    revoked for technical reasons unrelated to the quality of
    appraisals performed by the appraiser. They asserted that
    being barred from owning an AMC eligible for registration in a
    State or included in the AMC National Registry in these cases
    is potentially unfair. One example of this is when an appraiser
    neglects to renew his or her appraiser's license on time.
    Depending on the State law, an appraiser would typically be
    able to be reinstated, pending payment of certain penalties. In
    this situation, the lapse in the appraiser's license is unrelated to
    fraud or a failure to perform an appraisal in compliance with
    USPAP.
    The Agencies agree that non-substantive grounds for the
    revocation of an appraiser's license should not be construed to
    be within the scope of the registration limitations in section
    1124(d). n106 In connection with this, the Agencies agree that
    an appraiser who is subsequently reinstated by the State
    appraiser certifying and licensing agency should not be within
    the scope of the registration limitations. For example, if an
    appraiser's license lapses for non-payment of fees, and the
    appraiser is later reinstated by the State appraiser certifying
    and licensing agency after meeting his or her obligation, the
    appraiser should not be barred from owning an AMC. If,
    however, an appraiser's license or certificate is revoked, for
    example, for violations of the TILA independence standards or
    for failure to comply with USPAP, an AMC owned wholly or in
    part by that appraiser should not be eligible to register in a
    State or appear on the AMC National Registry. For these
    reasons, the final rule clarifies that an appraiser is subject to
    the ownership ban if the revocation of the appraiser's license or
    1 According to Chapter III, supplementary information was provided within 80 Fed.Reg. 32671 that refers to
    a section number of the proposed and final rule text for the Office of the Comptroller of the Currency and 12
    C.F.R. 34.210 et seq. The reference to Section 34.214(a) would be found under Chapter 12 of the C.F.R.
    No. 20AP-123                                                                               7
    certification was for a substantive cause, as determined by the
    State certifying and licensing agency.
    {¶ 15} We agree with Collateral Management that 80 Fed.Reg. 32671 supports its
    argument that the Board was required to consider the reasons or circumstances for
    surrender of Massad's license to determine if the surrender was for a "substantive reason."
    However, we do not agree that 80 Fed.Reg. 32671 unambiguously or specifically defines a
    "substantive reason" as Collateral Management and the Board suggest. The referenced
    Federal Register citation, 80 Fed.Reg. 32671, Chapter III, Section 34.214(a), is a discussion
    of public comments on a proposed rule. It is not a definition that was incorporated into the
    final rule nor was it incorporated into Ohio's statute. See R.C. 4768.06(B)(4).
    {¶ 16} The discussion does provide examples of what might be considered
    "substantive" versus "technical." Examples of "substantive" reasons include fraud, failure
    to perform an appraisal in compliance with USPAP, and violation of the Truth in Lending
    Act independence standards. An example of a "technical" reason included neglecting to
    renew the license. According to Massad's testimony before the Board, her purported
    reasons for surrender were that she was sick, recently divorced, she did not intend to return
    to Ohio to use her license, nor did she intend to renew her license. Collateral Management
    argues that Massad surrendered her license "for her own convenience." The Board asserts
    Massad voluntarily surrendered her license rather than defending against charges alleging
    multiple violations of the USPAP by Massad. None of the purported reasons for Massad's
    surrender fall under the examples of "substantive" or "technical" as provided in 80 Fed.Reg.
    32671, Chapter III, Section 34.214(a).
    {¶ 17} The final rule found in 12 C.F.R. 34.214(a)(1) requires:
    An AMC subject to State registration pursuant to § 34.213 shall
    not be registered by a State or included on the AMC National
    Registry if such AMC, in whole or in part, directly or indirectly,
    is owned by any person who has had an appraiser license or
    certificate refused, denied, cancelled, surrendered in lieu of
    revocation, or revoked in any State for a substantive cause, as
    determined by the appropriate State appraiser certifying and
    licensing agency.
    However, the final rule does not define "substantive," suggesting that implementing
    agencies have some discretion in determining what constitutes "substantive." See 12 C.F.R.
    No. 20AP-123                                                                             8
    34.211 and 34.214. Furthermore, as we will discuss below, 12 C.F.R. 34.214(a)(1) differs
    from R.C. 4768.06(B)(4) in that the federal rule modifies "surrender" with the phrase "in
    lieu of revocation" as well as the phrase "substantive cause." Whereas the Ohio statute
    modifies "surrender" with the phrase "substantive reason" only.
    {¶ 18} As noted above, in enacting its own AMC registration law, Ohio requires:
    Each owner and controlling person of an appraisal
    management company shall * * * [h]ave not had a license,
    certificate, or registration to act as an appraiser that has been
    refused, denied, canceled, surrendered, or revoked in this state
    or in any other state for a substantive reason. A designated
    controlling person may have had a license or certificate to act
    as an appraiser refused, denied, canceled, revoked, or
    surrendered in lieu of revocation in a state for a
    nonsubstantive reason if the license or certificate was
    subsequently granted or reinstated[.]
    (Emphasis added.) R.C. 4768.06(B)(4). "Substantive" was not defined in R.C. 4768.01 and
    4768.06, suggesting that just as with 12 C.F.R. 34.214(a)(1), the board is afforded some
    discretion in determining what constitutes surrender for a "substantive reason" and is not
    limited to the examples set forth in 80 Fed.Reg. 32671 as suggested by Collateral
    Management and the Board.
    {¶ 19} In support of the argument that the Board and common pleas court
    eliminated the "substantive reason" element, Collateral Management also asserts the Board
    was required to examine the merits of the pending complaints filed by the division against
    Massad and the reasons for voluntary surrender as given by Massad herself. In assessing
    the merits of this posture, the findings made by the superintendent and the Board in this
    matter are relevant.
    {¶ 20} Collateral Management's application for an AMC license in Ohio was denied
    by the superintendent by letter dated April 23, 2019. The superintendent detailed the
    following as the basis for denial of the application:
    In 2010, you maintained an Ohio residential real estate
    appraiser license (License# 2001010113). The Division issued
    charges against your Ohio appraiser license in case numbers
    2010-259 & 2010-262 (see enclosure for copy of the charge
    notice). On or about February 9, 2011, the Division received an
    affidavit signed by you in which you voluntarily surrendered
    your Ohio appraiser license to the Division arising out of a third
    No. 20AP-123                                                                                  9
    case (case number 2010-759). As a result of your surrendered
    Ohio [a]ppraiser license, the Division closed all three case
    numbers (2010-259[] 2010-262 & 2010-759) without further
    action (see enclosure for copies of the notices). Consequently,
    you had an Ohio real estate appraiser license that was
    surrendered for substantive reasons. Based on these reasons,
    your application has been denied based on your failure to
    comply with or satisfy Ohio Revised Code Section
    4768.06(B)(4).
    {¶ 21} Collateral Management requested a hearing before the Board for review of
    Collateral Management's AMC application. On August 15, 2019, Massad appeared before
    five members of the Board, providing testimony on behalf of Collateral Management in
    support of its application to become an AMC in Ohio. At the conclusion of the presentation
    of evidence and Massad's testimony upon direct and cross-examination, the Board upheld
    the superintendent's finding that Massad surrendered her license for a "substantive reason"
    and the basis for this appeal. Prior to reaching their determination, the Board went off the
    record for discussion at the conclusion of the hearing. Upon reconvening, three board
    members stated their reasoning for moving to adopt the decision of the superintendent
    denying Collateral Management's AMC application.
    {¶ 22} Three of the five voting board members spoke on the record and provided the
    basis on which they voted. The first, Chairman Lynch, voted to approve and adopt the
    decision of the superintendent citing his approval on the same basis as stated in the
    superintendent's decision. Chairman Lynch furthered: "I'm basing my opinion on the
    affidavit signed by Ms. Massad back in 2011 indicated she would no longer be a licensee in
    the state of Ohio. She had proper opportunity to have legal counsel at that particular time
    and chose not to, and she's voluntarily surrendered her license." (Tr. at 57.) The second
    board member, unnamed, concurred with the Chairman and stated: "The problem is is
    what was done and when we can't go back and look at things prior. So with the signing of
    the affidavit, I think that that was -- for whatever reason she did it, she did sign that and
    that sets the course for what we're looking at at this point." (Tr. at 57.) The third, Ms. Hahn,
    explained her review was based on state and federal regulations and the statutes. Ms. Hahn
    stated:
    Ms. Massad's counsel and Collateral Management's counsel
    was very eloquent in his closing statement and other testimony
    No. 20AP-123                                                                            10
    presented trying to urge us to look at the merits of the
    complaints that were raised against Ms. Massad back in 2011
    or 2010.
    But I -- based on my review of state and federal regulations and
    statutes, it appears that that is the wrong direction as to what
    the Board should review and take into consideration. Instead
    of the merits or trying to relitigate or litigate the underlying
    complaints, we are bound to look to whether the surrender of
    the license was substantive.
    With those boundaries the -- the underlying complaints are not
    being looked at to -- at least by me as to whether they are
    meritorious or would have resulted in a revocation or other
    actions by the Board at that time but whether the actions of the
    surrender appeared to be based on any underlying issues and,
    therefore, substantive as opposed to merely choosing no longer
    to practice in Ohio.
    And based on what was presented, the -- the fact that there
    were three complaints pending at the time it reached the point
    of a Notice of Opportunity for Hearing does appear to be new
    grounds for assessing a surrender and, therefore, in my mind
    the denial would be -- by the Superintendent was also. I concur
    with the rest of the Board Members that have spoken so far that
    it was appropriate.
    (Tr. at 57-58.) The considerations of the two remaining Board members who voted to
    approve and adopt the application denial were not stated on the record.
    {¶ 23} Collateral Management argues the Board was required to consider the
    reasons or circumstances of the surrender of Massad's license to determine if the surrender
    was for a "substantive reason." Collateral Management asserts the Board failed to consider
    Massad's testimony explaining why she chose to sign the affidavit and surrender her
    license, and the substance of the allegations pending against Massad.
    {¶ 24} As noted above, on questions of whether the agency's decision was in
    accordance with law, we exercise plenary review. Gralewski at ¶ 17. This court held in Pour
    House, Inc. v. Ohio Dept. of Health, 
    185 Ohio App.3d 680
    , 
    2009-Ohio-5475
    , ¶ 14 (10th
    Dist.):
    The interpretation of a statute is a question of law that we
    review de novo. Washington Cty. Home v. Ohio Dept. of
    Health, 
    178 Ohio App.3d 78
    , 
    2008-Ohio-4342
    , ¶ 27. In
    No. 20AP-123                                                                              11
    interpreting a statute, a court's principal concern is
    determining the legislative intent. State v. S.R. (1992), 
    63 Ohio St. 3d 590
    , 594. A court must first examine the statute's
    language to determine the legislative intent. Id.; Black v. Bd. of
    Mecca Twp. Trustees, 11th Dist. No. 2004-T-0031, 2005-Ohio-
    561, ¶ 9. An unambiguous statute need not be interpreted;
    instead, a court simply must apply the words of the statute as
    written. Guethlein v. Ohio State Liquor Control Comm., 10th
    Dist. No. 05AP-888, 
    2006-Ohio-1525
    , ¶ 11; Marcum v. Rice
    (July 20, 1999), 10th Dist. No. 98AP-717. Courts lack the
    authority to ignore the plain and unambiguous language of a
    statute under the guise of statutory interpretation or liberal or
    narrow construction. Guethlein at ¶ 12; Boardman Twp. Bd. of
    Trustees v. Fleming (1996), 
    110 Ohio App.3d 539
    , 542. "Rather,
    a court must give effect to the words used in the statute, accord
    the words their usual and customary meaning, and not delete
    words used or insert words that are not used." Guethlein, citing
    Cleveland Elec. Illum. Co. v. Cleveland (1988), 
    37 Ohio St.3d 50
    .
    Doubts as to the interpretation of a statute should be resolved in favor of the agency if the
    interpretation is reasonable. Clark v. State Teachers Retirement Sys., 10th Dist. No. 18AP-
    105, 
    2018-Ohio-4680
    , ¶ 38. " '[I]f the statute is silent or ambiguous with respect to the
    specific issue, the question for the court is whether the agency's answer is based on a
    permissible construction of the statute.' " Lang v. Dir., Ohio Dept. of Job & Family Servs.,
    
    134 Ohio St.3d 296
    , 
    2012-Ohio-5366
    , ¶ 12, quoting Chevron, U.S.A., Inc. v. Natural
    Resources Defense Council, Inc., 
    467 U.S. 837
    , 843 (1984).
    {¶ 25} In hearing Massad's appeal of the Board's adjudication order, the common
    pleas court held:
    [I]t is not disputed that Ms. Massad learned of [the] pending
    disciplinary action and surrendered her license rather than
    defend against the allegations. The Board concluded that, in
    doing so, Ms. Massad surrendered her residential real estate
    appraiser license "for a substantive reason." See R.C.
    4768.o6(B)(4). "Substantive" is not defined by statute. The
    Court must defer to the Board's interpretation of R.C.
    4768.o6(B)(4) because it is reasonable. See Rings v. Nichols, 13
    Ohio App.3d at 260.
    (Decision at 6.) The common pleas court further held:
    No. 20AP-123                                                                             12
    Collateral also argues that the administrative hearing was
    fundamentally unfair because the Board allegedly failed to
    consider Ms. Massad's testimony in determining whether she
    had surrendered her license "for a substantive reason." Simply
    put, the record does not support Collateral's claim. The Board
    was entitled to assign weight to the conflicting testimony, and
    the Court finds no error in the weight so assigned.
    (Decision at 8.)
    {¶ 26} Of the five voting Board members, Hahn was the only member to articulate
    that it was necessary to consider whether the surrender was due to a "substantive reason,"
    and in doing so, Hahn concluded the surrender appeared to be based on underlying issues,
    rather than merely choosing to no longer practice in Ohio. The remaining two Board
    members who articulated their reasons for upholding the superintendent's finding pointed
    to Massad's signing of the affidavit itself, in which Massad averred she was agreeing to
    never be licensed as an appraiser in Ohio after having the opportunity to consult with legal
    counsel and choosing not to, as the basis for their vote rather than considering whether the
    surrender was for a "substantive reason."       We cannot discern the reasoning of the
    remaining two Board members as the record is silent regarding the same.
    {¶ 27} We agree with Collateral Management to the extent it argues it is necessary
    for the Board to consider whether the surrender was for a "substantive reason." The
    common pleas court stated as much and, in this regard, did not err. However, the common
    pleas court erred in not applying the interpretation it correctly determined.
    {¶ 28} The Board was required to consider the reason for the surrender and whether
    it was "substantive." See R.C. 4768.06(B)(4). This court gleans from statements made by
    two of the Board members, and that of the common pleas court, that at least two of the
    Board members based their vote to approve and adopt the decision of the superintendent
    solely upon the affidavit signed by Massad and, specifically, the assertions that she had
    agreed to no longer be licensed in Ohio, she had legal counsel, and she voluntarily
    surrendered her license. The unnamed Board member even reasoned that Massad signed
    the affidavit "for whatever reason." The mere signing of the affidavit, for whatever reason,
    without consideration of whether the surrender was taken for a substantive reason does not
    comply with the interpretation of R.C. 4768.06(B)(4), which the common pleas court and
    this court find to be correct.
    No. 20AP-123                                                                                               13
    {¶ 29} For the reasons stated herein, we agree with Collateral Management that the
    common pleas court did not apply the interpretation of R.C. 4768.06(B)(4) that it is
    necessary to consider whether the surrender was for a substantive reason, which the
    common pleas court and this court find to be correct. We do not agree, however, that the
    definition of a "substantive reason" is confined to 80 Fed.Reg. 32671 or that the Board is
    required to look at the merits of the complaints pending at the time of Massad's surrender.
    Furthermore, we do not agree that the Board is required to relitigate the underlying basis
    for Massad's 2011 surrender. Rather, the Board is required to determine whether the
    surrender was for a substantive reason, not for "whatever reason," and we afford the Board
    discretion in determining whether the surrender was for a "substantive reason." We also
    defer to the Board in assigning appropriate weight to the affidavit, testimony of Massad,
    and any evidence presented by the division.
    {¶ 30} Therefore, we sustain in part and overrule in part Collateral Management's
    first assignment of error and remand to the common pleas court with instructions to return
    this case to the Board for all members to review the record and consider whether Massad
    surrendered her license for a substantive reason.
    C. Second Assignment of Error
    {¶ 31} Collateral Management argues in its second assignment of error that the
    Board failed to examine whether Massad's surrender was "in lieu of revocation" and such
    examination was required by R.C. 4768.06(B). Collateral Management reasons that R.C.
    4768.06(B)(4) and 12 C.F.R. 225.194(a)(1), or 34.214(a)(1) as cited by the Board, require
    an examination of whether the surrender was for a "substantive reason" and "in lieu of
    revocation" to trigger an AMC registration restriction.2 Collateral Management argues the
    212 U.S.C. 3353 governs appraisal management companies. The rules adopted pursuant to 12 U.S.C. 3353 are
    set forth in Title 12 of the Code of Federal Regulations ("C.F.R."). Both Collateral Management and the Board
    cite to Title 12, but cite to different parts and chapters within the C.F.R. Collateral Management cites to 12
    C.F.R. Part 225, whereas the Board cites to 12 C.F.R. Part 34. Collateral Management's citation appears under
    Chapter II of the Federal Reserve System, Subchapter A, Board of Governors of the Federal Reserve System,
    Part 225 Bank Holding Companies and Change in Bank Control. The Board's citation falls under Chapter I,
    Office of the Comptroller of the Currency, Department of the Treasury, Part 34 Real Estate Lending and
    Appraisals. Both C.F.R regulations cited herein address the same issue within their respective subpart, the
    minimum standards for appraisal management companies and the language of the regulations mirror one
    another substantively.
    No. 20AP-123                                                                                                  14
    Board erred in not considering whether the surrender was in lieu of revocation and that the
    common pleas court erred in deferring to the Board on this.
    {¶ 32} Interestingly, Collateral Management argued nearly the opposite before the
    common pleas court and, therefore, it is no wonder the common pleas court did not address
    surrender in lieu of revocation in its decision. Before the common pleas court, Collateral
    Management argued the Board's reliance on federal law was misplaced because federal law
    does not apply here. Collateral Management argued: "Federal law allows a state could
    establish requirements in addition to those found in 12 USCS 3353. See 12 CFR 34.210(d).
    Ohio did so. Surrenders in lieu of revocation are a ban for owners or controlling persons of
    appraisal management companies. Ohio, however, also bans owners and controlling
    persons of appraisal management companies who have surrendered their appraiser license
    for substantive reasons." (Nov. 5, 2019 Collateral Management's Common Pleas Court
    Brief at 5.) Therefore, Collateral Management argues "[f]ederal law is not akin to Ohio's
    law in this matter." (Nov. 5, 2019 Collateral Management's Common Pleas Court Brief at
    5.)
    {¶ 33} We agree with the argument Collateral Management made before the
    common pleas court but disagree with the argument Collateral Management now makes.
    {¶ 34} As noted above, 12 C.F.R. 34.214(a)(1)3 states:
    An AMC subject to State registration pursuant to § 34.213 shall
    not be registered by a State or included on the AMC National
    Registry if such AMC, in whole or in part, directly or indirectly,
    is owned by any person who has had an appraiser license or
    certificate refused, denied, cancelled, surrendered in lieu of
    revocation, or revoked in any State for a substantive cause, as
    determined by the appropriate State appraiser certifying and
    licensing agency.
    (Emphasis added.)
    To maintain continuity, this court will use Part 34 of Title 12 of C.F.R., which was cited by the court of common
    pleas. This court notes that Collateral Management cites 12 C.F.R. 34.214 in its reply brief in the common
    pleas court.
    3 12 C.F.R. 225.194(a)(1) as cited by Collateral Management states: "An AMC subject to state registration
    pursuant to section 225.193 shall not be registered by a state or included on the AMC National Registry if such
    AMC, in whole or in part, directly or indirectly, is owned by any person who has had an appraiser license or
    certificate refused, denied, cancelled, surrendered in lieu of revocation, or revoked in any State for a
    substantive cause, as determined by the appropriate State appraiser certifying and licensing agency."
    No. 20AP-123                                                                                                15
    {¶ 35} As Collateral Management suggests, the federal statute prohibits state
    registration if the owner surrendered their license in lieu of revocation. However, 12 U.S.C.
    3353(b) states: "Relation to State law. Nothing in this section shall be construed to prevent
    States from establishing requirements in addition to any rules promulgated under
    subsection (a)." 12 C.F.R. 34.210(d)4 mirrors the aforementioned statute stating, "Rule of
    construction. Nothing in this subpart should be construed to prevent a State from
    establishing requirements in addition to those in this subpart." Consistent with 12 U.S.C.
    3353(b) and 12 C.F.R. 34.210(d), Ohio enacted R.C. 4768.06(B)(4) establishing
    requirements in addition to those outlined in subpart 12 C.F.R. 34.214. Specifically, Ohio
    prohibits the granting of an AMC license unless certain criteria are met, including the
    owners have not had a license surrendered for a "substantive reason."
    {¶ 36} The relevant section of R.C. 4768.06(B)(4), the first sentence, states: "Each
    owner and controlling person of an appraisal management company shall satisfy all of the
    following criteria: * * * Have not had a license, certificate, or registration to act as an
    appraiser that has been refused, denied, canceled, surrendered, or revoked in this state or
    in any other state for a substantive reason." (Emphasis added.)
    {¶ 37} As we noted above, this language is plain and unambiguous. See Guethlein
    v. Ohio State Liquor Control Comm., 10th Dist. No. 05AP-888, 
    2006-Ohio-1525
    , ¶ 12. In
    Ohio, even if a surrender was not in lieu of revocation, an applicant who surrendered his or
    her license could still not be eligible for an AMC license if the surrender was for a
    substantive reason.
    {¶ 38} Furthermore, we are not persuaded by Collateral Management's argument
    that the first sentence of R.C. 4768.06(B)(4) must be read in conjunction with the second
    sentence in the context of this case. The second sentence of R.C. 4768.06(B)(4) states: "A
    designated controlling person may have had a license or certificate to act as an appraiser
    refused, denied, canceled, revoked or surrendered in lieu of revocation in a state for a
    nonsubstantive reason if the license or certificate was subsequently granted or
    reinstated." (Emphasis added.) This second sentence is not relevant in this case as
    Massad's real estate appraiser license was not subsequently granted or reinstated.
    4 As cited by Collateral Management, 12 C.F.R. 225.190(c) states "Rule of construction. Nothing in this subpart
    should be construed to prevent a State from establishing requirements in addition to those in this subpart."
    No. 20AP-123                                                                                  16
    {¶ 39} Therefore, the common pleas court did not err in deferring to the Board's
    interpretation and application of R.C. 4768.06(B)(4) by not considering whether the
    surrender was "in lieu of revocation."
    {¶ 40} Accordingly, we overrule Collateral Management's second assignment of
    error.
    D. Third Assignment of Error
    {¶ 41} Collateral Management argues in its third assignment of error that the
    common pleas court erred in affirming the Board's adjudication order because the Board's
    application of R.C. 4768.06(B)(4) was a violation of due process for reasons of retroactive
    application.
    {¶ 42} It is not clear that Collateral Management preserved this argument at the
    common pleas level. Even assuming, arguendo, Collateral Management did raise it at the
    common pleas level, Collateral Management points us to no place in the administrative
    record where the issue of either retroactivity or constitutionality was raised. Therefore, this
    is an as-applied challenge.
    {¶ 43} Constitutionality of statutes is a question for the courts and not for a board
    or commission. E. Ohio Gas Co. v. Pub. Util. Comm., 
    137 Ohio St. 225
    , 239 (1940). The
    Supreme Court of Ohio has held that an appellant may raise a facial constitutional challenge
    in an administrative appeal even where the appellant did not raise that challenge before the
    commission or agency. See Reading v. Public Util. Comm., 
    109 Ohio St.3d 193
    , 2006-Ohio-
    2181; see also Derakhshan v. State Med. Bd. of Ohio, 10th Dist. No. 07AP-261, 2007-Ohio-
    5802, ¶ 25 (permitting an appellant to raise a facial constitutional challenge to the statute
    upon which the medical board relied to revoke his medical license on appeal); Leon v. Ohio
    Bd. of Psychology, 
    63 Ohio St.3d 683
    , 686-87 (1992) (considering argument that the
    regulation upon which the board relied to revoke the appellant's psychology license was
    unconstitutionally vague). A court may also consider an as-applied constitutional challenge
    in an administrative appeal. State ex rel. Kingsley v. State Emp. Relations Bd., 10th Dist.
    No. 09AP-1085, 
    2011-Ohio-428
    , ¶ 19.
    {¶ 44} In contrast to a facial challenge, however, when a litigant challenges the
    constitutionality of a statute as applied to a specific set of facts, extrinsic facts are needed,
    and the litigant must raise the as-applied challenge in the first instance before the
    No. 20AP-123                                                                                17
    administrative agency to allow the parties to develop an evidentiary record. Kingsley at
    ¶ 18, citing Reading at ¶ 15-16. Review of the testimony before the Board does not reflect
    that Collateral Management raised the constitutionality of R.C. 4768.06(B)(4) as applied.
    {¶ 45} Nevertheless, even if Collateral Management did present extrinsic facts
    before the Board sufficient to preserve a claim of as-applied unconstitutionality, we note
    that we are persuaded by the Board's argument that Massad had no vested right to an AMC
    license. This court has held:
    A "vested right" is a right that " 'so completely and definitely
    belongs to a person that it cannot be impaired or taken away
    without the person's consent.' " Harden v. Ohio Atty. Gen., 
    101 Ohio St.3d 137
    , 
    2004-Ohio-382
    , ¶ 9, quoting Black's Law
    Dictionary (7th ed. 1999). "A right is not regarded as vested in
    the constitutional sense unless it amounts to something more
    than a mere expectation or interest based upon an anticipated
    continuance of existing law." In re Emery (1978), 
    59 Ohio App.2d 7
    , 11. "[W]here no vested right has been created, 'a later
    enactment will not burden or attach a new disability to a past
    transaction or consideration in the constitutional sense, unless
    the past transaction or consideration * * * created at least a
    reasonable expectation of finality.' " [State v. Cook (1998), 
    83 Ohio St.3d 404
    , 412, quoting State ex rel. Matz v. Brown
    (1988), 
    37 Ohio St.3d 279
    , 281.]
    Dukes v. Dir., Ohio Dept. of Job & Family Servs., 10th Dist. No. 09AP-515, 2009-Ohio-
    6781, ¶ 20.
    {¶ 46} In Dukes, we held a Medicaid provider agreement was not absolute and
    therefore did not confer a vested or substantive right in the constitutional sense for
    purposes of retroactivity. Dukes at ¶ 20. We reasoned the agreement had to be renewed
    annually by the Ohio Department of Job and Family Services ("ODJFS"), but ODJFS was
    prohibited from renewing the agreement if the appellant did not comply with the laws and
    rules applicable thereto. Id. at ¶ 21. The agreement could also be revoked. Id. Likewise,
    here, an AMC license must be renewed annually and can only be renewed if certain
    requirements are met. See R.C. 4768.06, 4768.07, 4768.08. In addition, an AMC license
    can also be revoked. R.C. 4768.13(I)(4). In Dukes, we found the appellant's Medicaid
    provider agreement was similar to a day-care certification. Cosby v. Franklin Cty. Dept. of
    Job & Family Servs., 10th Dist. No. 07AP-41, 
    2007-Ohio-6641
    , ¶ 21. In Cosby, we held that
    the day-care certification at issue was a license as defined in R.C. 119.01(B). Id. at ¶ 26. We
    No. 20AP-123                                                                              18
    further held that "[a] 'license' does not ordinarily confer an absolute or vested right." Id.
    An AMC is a license, and Collateral Management points us to no authority that such a
    license confers an absolute or vested right contrary to the general authority that a license
    does not confer a vested right.
    {¶ 47} Accordingly, we overrule appellant's third assignment of error.
    IV. Conclusion
    {¶ 48} For the aforementioned reasons, we sustain in part and overrule in part
    appellant's first assignment of error and overrule the second and third assignments of error.
    We remand this matter to the common pleas court with instructions to return the case to
    the Board to apply R.C. 4768.06(B)(4) consistent with the interpretation that it must
    consider whether Massad's license was surrendered for a substantive reason.
    Judgment affirmed in part, reversed in part;
    and cause remanded with instructions.
    BEATTY BLUNT, J., concurs.
    LUPER SCHUSTER, J., concurs in part and dissents in part.
    LUPER SCHUSTER, J., concurring in part and dissenting in part.
    {¶ 49} I agree with the majority's resolution of the second and third assignments of
    error. However, because I would overrule the entirety of Collateral Management's first
    assignment of error, I respectfully dissent.
    {¶ 50} The central issue is whether Massad's surrender of her real estate appraiser
    license in 2011 was "for a substantive reason" as that phrase is used in R.C. 4768.06(B)(4).
    The pertinent statutory scheme does not define "substantive." As the Supreme Court of
    Ohio has noted, "[i]t is a fundamental tenet of administrative law that an agency's
    interpretation of a statute that it has the duty to enforce will not be overturned unless the
    interpretation is unreasonable." State ex rel. Clark v. Great Lakes Constr. Co., 
    99 Ohio St.3d 320
    , 
    2003-Ohio-3802
    , ¶ 10. Thus, "a trial court must defer to an administrative
    agency's interpretation of a statute it must administer so long as the interpretation is
    reasonable and consistent with the underlying legislative intent." Warren v. Morrison,
    10th Dist. No. 16AP-372, 
    2017-Ohio-660
    , ¶ 10, citing Oyortey v. State Med. Bd. of Ohio,
    10th Dist. No. 12AP-431, 
    2012-Ohio-6204
    , ¶ 17.
    No. 20AP-123                                                                                 19
    {¶ 51} Here, the Board noted that Massad surrendered her license in 2011 after
    learning of pending disciplinary actions against her rather than defend against those
    allegations.   The Board considered Massad's surrender in that context to be for a
    substantive reason within the meaning of R.C. 4768.06(B)(4), and the common pleas court
    found the Board's interpretation to be reasonable. I agree with the common pleas court
    that the Board's interpretation of R.C. 4768.06(B)(4) was reasonable and would defer to it.
    Though Massad now asserts her motivations for surrendering her license in 2011 were
    unrelated to the pending disciplinary proceedings, Massad chose not to defend against
    those allegations in 2011 and instead signed a sworn affidavit that she was voluntarily
    surrendering her license, promising to never apply for an Ohio license in the future. The
    Board's interpretation of Massad's signing of the affidavit as a surrender for a substantive
    reason reasonably gives finality to Massad's actions in 2011. I would not, as the majority
    does, limit the Board's ability to rely on Massad's signing of the 2011 affidavit or require the
    Board to relitigate the underlying basis for Massad's 2011 surrender. Thus, I would overrule
    the entirety of Collateral Management's first assignment of error.
    {¶ 52} For these reasons, I respectfully concur in part and dissent in part.