Michael Scott Maclay v. State Of Washington, Department of Licensing ( 2014 )

FILED
APRIL 15,2014
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
MICHAEL SCOTT MACLAY, )
) No. 31472-3-III
Appellant, )
)
v. )
)
STATE OF WASHINGTON ) UNPUBLISHED OPINION
DEPARTMENT OF LICENSING, )
)
Respondent. )
KORSMO, J. - Michael Scott Maclay, a former real estate broker, misused a lien
statute. The Department of Licensing sanctioned Mr. Maclay and he appealed. We
affirm.
FACTS
Nicholas Petrilli, Jr., and his wife entered into an exclusive listing agreement with
Michael Scott Maclay to sell their house. The Petrillis became disenchanted with Mr.
Maclay's services and sought to terminate the listing agreement.
No. 31472-3-III
Maclay v. Dep't ofLicensing
Although the exact terms are unknown, the parties reached some form of
agreement that resulted in the Petrillis listing their home as for sale by owner. After this
change in advertising, the Petrillis found a buyer for their home.
Believing that he was still owed a commission, Mr. Maclay pestered the Petrillis
and their attorney for payment; they refused. Mr. Maclay retaliated by filing a lien
against the proceeds from the sale using the Commercial Real Estate Broker Lien Act,
chapter 60.42 RCW.
The Petrillis, their attorney, and the title company all agreed that the lien was
invalid and refused to honor it. When the lien failed to secure payment, Mr. Maclay
returned to calling and e-mailingthePetrillisandtheirattorney.Fedup.Mr. Petrilli filed
a complaint with the Washington State Department of Licensing (DOL).
The DOL investigation found that Mr. Maclay had improperly used the
commercial lien act because it did not encompass the residential property at issue in this
listing. The initial investigation also determined that the filing of this lien violated RCW
18.235.130(4) and RCW 18.86.030(1)(a) and (b) because the lien was improperly
intended to cloud title and hold up the sale of the home. Based on these violations, and
certain aggravating and mitigating factors that will not be addressed here, the DOL issued
a $3,040 fine (five times the amount sought from the Petrillis) and a 90-day suspension,
which would become a one-year suspension if there was any additional misconduct
within five years.
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Mr. Maclay appealed the decision through the brief adjudicative proceeding
process offered by the DOL. The hearing officer in the brief adjudicative proceeding
reviewed the record and substantially agreed with the investigator's findings. However,
the hearing officer vacated the violation ofRCW 18.86.030(l)(b) based on a lack of
evidence, and accordingly modified the sanction to eliminate the 90-day suspension.
Mr. Maclay then sought an administrative review of the brief adjudicative
proceeding. The director of the DOL reviewed the record of the brief adjudicative
proceeding and affirmed. Mr. Maclay sought reconsideration, which the director denied.
Having exhausted his administrative remedies, Mr. Maclay sought review in
superior court. The superior court reviewed the record and gave Mr. Maclay a hearing,
but ultimately affirmed. Mr. Maclay now appeals to this court.
ANALYSIS
Under the Washington State Administrative Procedure Act, this court's review of
the facts is confined to those contained in the agency record. RCW 34.05.558. Reliefin
this court requires proof of invalid agency action as defined by RCW 34.05.570(3) and
resulting substantial prejudice. RCW 34.05.570(1). When reviewing appeals from
administrative agencies, the Court of Appeals "sits in the same position as the superior
court when reviewing an agency's decision." Hunter v. Univ. of Wash., 101 Wn. App.
283,288,2 P.3d 1022 (2000).
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This court "view[s] the evidence and any reasonable inferences in the light most
favorable to the party that prevailed in the highest forum exercising fact finding
authority." Schofield v. Spokane County, 96 Wash. App. 581, 586, 980 P.2d 277 (1999).
Furthermore, because Mr. Maclay did not take proper exception to any of the DOL's
findings of fact, this court must accept them as verities on appeal. Tapper v. Emp't Sec.
Dep't, 122 Wash. 2d 397, 407,858 P.2d 494 (1993). However, this court reviews alleged
misinterpretations and misapplications of law de novo. Bullseye Distrib. LLC v.
Gambling Comm 'n, 127 Wash. App. 231, 237, 110 P.3d 1162 (2005).
Mr. Maclay raises several issues in his opening and reply briefs. Most of these
arguments lack reviewability due to Mr. Maclay's failure to provide citations to
applicable legal authority and references to relevant parts of the record as required by
RAP 1O.3(a)(6). Of the issues presented by Mr. Maclay, we find one to be reviewable.
Mr. Maclay's main contention appears to be that the DOL, at all stages, acted
arbitrarily and capriciously by not investigating facts that would support a violation of the
statutes he was sanctioned under and by not explaining how his actions violated these
statutes. We disagree.
The DOL sanctioned Mr. Maclay under RCW 18.235.130(4) and RCW
18.86.030(1)(a). RCW 18.235.130(4) states that it is unprofessional conduct for a license
holder to act with "[i]ncompetence, negligence, or malpractice that results in harm or
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No. 31472-3-III
Maclay v. Dep't ofLicensing
damage to another or that creates an unreasonable risk of harm or damage to another."
RCW 18.86.030(1)(a) requires a broker to "exercise reasonable skill and care."
The DOL found that Mr. Maclay's filing of the commercial lien against residential
property violated both of these statutes. The DOL clearly explained its position and
reasoning in the investigator's letter to Mr. Maclay, and in greater detail in the hearing
officer's findings of fact and conclusions of law. These findings and conclusions are
correct.
The Commercial Real Estate Broker Lien Act only applies to property that falls
within the definition of "commercial real estate." RCW 60.42.010. The definition of
"commercial real estate" explicitly excludes "real property which is (a) improved with
one single-family residential unit." RCW 60.42.005(1). However, the definition also
provides that real estate will be considered "commercial real estate" "if the commission
agreement so provides." ld. Here, the land was improved with one single-family
residential unit and was explicitly considered in the commission agreement to be
residential real estate. Thus, under no circumstances was the Petrillis' home the proper
subject of a commercial lien.
A real estate broker using reasonable skill and care would have known that this act
did not apply to the proceeds from the sale of Petrill is' property. Mr. Maclay's improper
use of this act speaks for itself and shows that he at least acted negligently or
incompetently and did not exercise reasonable skill and care. Accordingly, the DOL did
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No. 31472-3-II1
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not err by finding that Mr. Maclay violated RCW 18.235.130(4) and RCW
18.86.030(1 )(a).
Mr. Maclay's other contentions revolve around alleged irregularities in the DOL's
administrative procedures. Because Mr. Maclay has not cited to any statutes or
regulations that he believes were violated, his arguments are not reviewable by this court.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the
Washington Appellate Reports, but it will be filed for public record pursuant to
RCW 2.06.040.
Kors(#, J.
WE CONCUR:
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