Colorado Real Estate Comm'n v. Bartlett, 10CA1489.

• Decision Date: 23 June 2011
• Docket Number: No. 10CA1489.,10CA1489.
• Parties: COLORADO REAL ESTATE COMMISSION, Petitioner–Appellee, v. Alfred E. BARTLETT, Respondent–Appellant.
• Court: Colorado Court of Appeals

272 P.3d 1099

COLORADO REAL ESTATE COMMISSION, Petitioner–Appellee,

v.Alfred E. BARTLETT, Respondent–Appellant.

No. 10CA1489.

Colorado Court of Appeals, Div. I.

June 23, 2011.

John W. Suthers, Attorney General, Lisa Brenner Freimann, First Assistant Attorney General, Melissa Phipps, Assistant Attorney General, Stacey Chapman, Assistant Attorney General, Denver, Colorado, for Petitioner–Appellee.

Sheila H. Meer, P.C., Sheila H. Meer, Diana R.M. Schatz, Denver, Colorado, for Respondent–Appellant.

Opinion by Judge MILLER.

Respondent, Alfred E. Bartlett, appeals the final agency order of the Colorado Real Estate Commission (the Commission) revoking his real estate broker's license, on the grounds that the Commission lacks authority to impose discipline for attempted crimes and that it failed to properly address evidence of his rehabilitation. We affirm.

I. Background

The administrative law judge (ALJ) found that respondent communicated for several months via the Internet with an undercover detective from the Colorado Springs Police Department who was posing as a thirteen-year-old girl named Tiffany. Respondent initiated discussion about what Tiffany was wearing, what was underneath her clothing, and his desire to have sexual contact with her. He asked Tiffany for her picture and received a photo. Respondent requested a meeting with Tiffany, asking that she keep the meeting a secret from her mother. Once a meeting was scheduled, respondent was arrested upon arrival at the agreed-upon location and making contact with the person he believed to be Tiffany. He pled guilty to attempted sexual assault on a child in violation of sections 18–2–101 and 18–3–405(1), C.R.S.2010, a class five felony, and he was sentenced to five years of sex offender intensive supervision probation, scheduled for completion in September 2011. Respondent did not notify the Commission of his conviction until approximately eight months after he entered his guilty plea, despite applying for a renewal of his broker's license during the interim.

The Commission filed a notice of charges alleging that respondent was subject to discipline under section 12–61–113(1)(m), C.R.S.2010, based on his conviction, and under section 12–61–113(1)(m.6), C.R.S.2010, based on his failure to immediately report the conviction to the Commission. After a hearing, the ALJ issued an initial decision, finding that respondent had violated both sections and recommending revocation of his license. After extensive briefing and oral arguments by the parties, the Commission accepted the initial decision and issued a final agency order revoking respondent's real estate broker's license.

II. Analysis

A. Jurisdiction

Respondent does not dispute that he was convicted of attempted sexual assault of a minor or that he failed to immediately report that conviction. Rather, he contends that because he was convicted of an attempt, and not the completed crime, the Commission lacked subject matter jurisdiction to revoke his license.

The Commission may “permanently revoke a license when the licensee has performed, is performing, or is attempting to perform ... and is guilty of” any of numerous categories of conduct. § 12–61–113(1), C.R.S.2010 (emphasis added). One such category consists of convictions of enumerated crimes, including sexual assault on a child under section 18–3–405, C.R.S.2010, or “any other like crime under Colorado law.” § 12–61–113(1)(m).

Defendant argues that section 12–61–113(1)(m) empowers the Commission to impose sanctions for convictions only under the statutes enumerated and that section 18–2–101, prohibiting attempts, is not on the list. He also argues that because attempts are not listed, he had no duty to report pursuant to section 12–61–113(1) (m.6). The ALJ denied respondent's motion to dismiss based on this theory, and the Commission accepted that ruling in its order.

Respondent's jurisdictional challenge requires construction of section 12–61–113(1)(m). We review the construction of a statute de novo. People v. Null, 233 P.3d 670, 679 (Colo.2010).

To determine the meaning of a statute, we must ascertain and give effect to the intent of the General Assembly. People v. Hernandez, 250 P.3d 568, 570–71 (Colo.2011); Jefferson Cnty. Bd. of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo.2010). We look first at the language of the statute and give statutory words and phrases their plain and ordinary meaning. People v. Blue, 253 P.3d 1273, 1276–77 (Colo.App.2011); People v. Davis, 218 P.3d 718, 723 (Colo.App.2008). This requires that we give effect to every part of the statute and avoid constructions that would render a part of the statute meaningless. Mayo v. People, 181 P.3d 1207, 1210 (Colo.App.2008); see also § 2–4–201(1)(b), C.R.S.2010; Gerganoff, 241 P.3d at 935 (“The language at issue must be read in the context of the statute as a whole and the context of the entire statutory scheme.”).

The plain language of section 12–61–113(1)(m), which includes the ability to revoke a license when a licensee “is attempting to perform” one of the enumerated acts, indicates that the legislature intended to give the Commission the authority to impose sanctions, including license revocations, for attempt convictions. To conclude otherwise would render the words “attempting to perform” meaningless. Moreover, respondent's attempt conviction was sufficiently similar to a conviction for sexual assault on a child under section 18–3–405 to be considered a “like crime.” Colorado's attempt statute provides in relevant part:

A person commits criminal attempt if, acting with the kind of culpability otherwise required for commission of an offense, he engages in conduct constituting a substantial step toward the commission of the offense. A substantial step is any conduct ... which is strongly corroborative of the firmness of the actor's purpose to complete the commission of the offense. Factual or legal impossibility of committing the offense is not a defense if the offense could have been committed had the attendant circumstances been as the actor believed them to be....

§ 18–2–101(1), C.R.S.2010 (emphasis added).

As found by the ALJ, respondent intended to commit sexual assault on a thirteen-year-old child by contacting Tiffany on the Internet, grooming her over a period of several months for sexual contact, taking the initiative to meet her in secret, telling her he would bring condoms and alcohol, and traveling to the meeting place in a vehicle containing marijuana and equipped with a makeshift bed. He was prevented from completing the crime because Tiffany did not in fact exist. Clearly, such an attempt is a “like crime” to an actual sexual assault on a child. Respondent's attempt conviction raises the same concerns regarding public safety and protection as would a conviction for the underlying crime. Accordingly, the Commission had subject matter jurisdiction to consider the revocation of respondent's license based upon his attempt conviction and his admitted failure to immediately report that violation.

B. Rehabilitation Evidence

Respondent next contends that the Commission (1) was required to consider evidence concerning his rehabilitation; (2) had the burden to prove the absence of rehabilitation; and (3) failed to meet that burden. The Commission agrees that it was required to consider rehabilitation evidence, but disputes that it bears the burden of proof on that issue. We conclude that the Commission bears the burden of proof and met it in this case.

1. Standard of Review

As noted above, statutory construction is a question of law that we review de novo. Null, 233 P.3d at 679.

Unless otherwise provided by statute, the proponent of an order bears the burden of proof. § 24–4–105(7), C.R.S.2010. We will uphold an agency's decision unless it is arbitrary or capricious, unsupported by substantial evidence, or contrary to law. Johnson v. Griffin, 240 P.3d 404, 406 (Colo.App.2009); Alliance for Colorado's Families v. Gilbert, 172 P.3d 964, 968 (Colo.App.2007); Rigmaiden v. Colo. Dep't of Health Care Policy & Financing, 155 P.3d 498, 501 (Colo.App.2006) (reviewing court may set aside an agency decision if unsupported by substantial evidence in the record). We review the record in the light most favorable to the agency. Johnson, 240 P.3d at 406; Alliance for Colorado's Families, 172 P.3d at 968.

Whether the record contains substantial evidence to support the agency's decision is a question of law. Am. Nat'l General Ins. Co. v. Rivera, 217 P.3d 1257, 1259 (Colo.App.2007); Rigmaiden, 155 P.3d at 501. We must defer to the agency's determination of the credibility of witnesses and the weight to be given their testimony. Charnes v. Lobato, 743 P.2d 27, 32 (Colo.1987); Colo. Ethics Watch v. City & Cnty. of Broomfield, 203 P.3d 623, 626 (Colo.App.2009); Feeney v. Colo. Ltd. Gaming Control Comm'n, 890 P.2d 173, 179 (Colo.App.1994). We cannot reweigh the evidence or substitute our judgment for that of the agency. Colo. Ethics Watch, 203 P.3d at 626; Kruse v. Town of Castle Rock, 192 P.3d 591, 601 (Colo.App.2008).

2. The Law

We agree that the Commission was required to consider rehabilitation evidence. In reaching this conclusion, we apply the principles of statutory construction discussed above.

Section 24–5–101(1)(a), C.R.S.2010, provides in pertinent part that “the fact that a person has been convicted of a felony ... shall not, in and of itself, prevent the person ... from applying for and receiving a license ... required by the laws of this state to follow any business, occupation, or profession.” Subsection (2) of the same section includes the following statement of legislative intent:

The intent of this section is to expand employment opportunities for persons who, notwithstanding that fact of conviction of an offense, have been rehabilitated and are ready to accept the responsibilities of a law-abiding and productive member of society.

§ 24–5–101(2), C.R.S.2010 (...