Eidson v. STATE, DEPT. OF LICENSING
| Decision Date | 15 October 2001 |
| Docket Number | No. 48275-1-I.,48275-1-I. |
| Citation | 108 Wn. App. 712,108 Wash. App. 712,32 P.3d 1039 |
| Court | Washington Court of Appeals |
| Parties | Fred B. EIDSON, Appellant, v. STATE of Washington, DEPARTMENT OF LICENSING, Respondent. |
Howard Mark Goodfriend, Edwards Sieh Smith & Goodfriend, P.S., William N. Snell, Seattle, for Appellant.
Jerald R. Anderson, Assistant Attorney General, Att General's Office, Olympia, for Respondent.
Fred B. Eidson is a licensed real estate appraiser. The Department of Licensing ("the Department") received a complaint regarding two appraisal reports Eidson signed. After a hearing, the Department concluded that Eidson violated the Real Estate Appraiser Act, revoked his license for three years, and imposed a $300 fine. Eidson appeals. We affirm the conclusion that Eidson violated the Act. Because, however, we find that some of the findings of fact are not supported by substantial evidence, we remand this matter for reconsideration of the sanction imposed and for determination of whether Eidson is entitled to an award of attorney fees.
In September 1997, the Department received a complaint from another appraiser regarding two appraisal reports Eidson signed. The complainant alleged that Eidson did not perform one of the appraisals even though he signed it and that he made fraudulent misrepresentations in the other. The appraisals are referred to as the Patterson appraisal and the Erickson appraisal.
Denise Hoage, who was assigned to investigate the complaint, requested by letter dated February 8, 1998 that Eidson provide her copies of both appraisals and work files. In March 1998, Eidson produced the Patterson appraisal and work file. He informed Hoage that he could not find the Erickson appraisal and work file, so Hoage granted him an extension of time to produce it. Eidson did not, however, produce these materials by the extended due date.
By letter dated May 11, 1998, Hoage made a "demand" that Eidson produce the Erickson materials.1 Eidson responded by letter dated May 29, 1998 in which he discussed a few aspects of the appraisals. He did not, however, produce the Erickson appraisal or work file. On June 24, 1998, Hoage sent Eidson a second demand letter and set a deadline for production of July 3, 1998. Eidson did not produce the requested materials by this deadline. Eidson claimed that the Erickson file was stored at an archive company and that the company could not find it. Adding to the problem, he claims, was the fact that the archive company was sold and came under new management in the midst of the search for the Erickson file. Finally, the company returned Eidson's files to him and Eidson located the Erickson appraisal at some point during the first quarter of 1999, misfiled in the wrong archive box.
In June 1999, Eidson met with an assistant attorney general in Olympia. Eidson stated he made a copy of the Erickson file and left it with her after the meeting. As it turned out, however, the materials Eidson left were materials from the Patterson file, not the Erickson file.
Hoage eventually received a copy of the Erickson appraisal from the complainant. She forwarded the information she collected regarding both appraisals to Michael Robinson, a state-certified residential appraiser. Robinson conducted a "desk review," meaning he did not physically inspect the two properties, and issued a report opining that Eidson's value conclusions were not supported and that the appraisals contained "significant errors and/or deficiencies."2
In March 1999, the Department issued a Statement of Charges to Eidson. The statement alleged that the Patterson and Erickson appraisals contained various deficiencies, showing a lack of due diligence in the preparation of the appraisals in violation of RCW 18.140.160(6), and that Eidson failed to produce records on demand as required by RCW 18.140.160(9). The original and first amended Statements of Charges incorrectly indicated that the Department wanted Eidson to produce the Patterson appraisal and work file. The second amended Statement of Charges corrected the error and indicated that the Department wanted the Erickson appraisal and work file.
Eidson requested a hearing. He filed the Erickson appraisal and work file as hearing exhibits just prior to the commencement of the hearing. After the hearing, the ALJ issued findings of fact, conclusions of law, and an initial order. The ALJ sustained the Statement of Charges, revoked Eidson's real estate appraiser's license for three years, assessed a civil fine of $300, and ordered Eidson to take a class on the Uniform Standards for Professional Appraisal Practice (USPAP).
Eidson filed a petition for review of the ALJ's initial order with the Director of the Department.3 The Director issued a Final Order in which he ordered several of the ALJ's findings of fact and conclusions of law stricken and adopted the remainder.4 The Director sustained the Statement of Charges and the sanction.
Eidson petitioned for judicial review of the Director's Final Order in Superior Court. The trial court granted Eidson's motion to stay the order revoking his license pending further order of the court. In March 2001, the trial court issued a memorandum opinion in which it affirmed the Director's Final Order. The trial court adopted the ALJ's findings of fact and conclusions of law, as adopted by the Director. The court noted its disagreement with the three-year license revocation and stated that it would reduce the length of the revocation if it had the power to do so. But, the court concluded, because it could not say that the sanction was arbitrary and capricious, it was bound to affirm it. The trial court denied Eidson's motion for a stay of the Final Order pending appeal. Eidson appealed to this court. A commissioner granted Eidson's motion for a stay pending appeal of the Department's order revoking his license, subject to his payment of the $300 fine.
Judicial review of this matter is governed by the Administrative Procedure Act (APA).5 We sit in the same position as the superior court and review the agency's decision by applying the standards in the APA directly to the agency record.6
Citing Nguyen v. State, Dep't of Health,7 Eidson argues that we must remand this matter with directions that the Department must prove its case by clear and convincing evidence rather than a preponderance of the evidence. In Nguyen, the Medical Quality Assurance Commission found that Dr. Nguyen committed unprofessional conduct and revoked his license to practice medicine. The Supreme Court held that the federal due process clause requires proof by clear and convincing evidence in a medical disciplinary proceeding.
We decline to extend Nguyen's holding to encompass proceedings under the Certified Real Estate Appraiser Act. Although the practice of medicine and the real estate appraisal practice are both regulated professions, obvious differences exist between them. These differences should not be ignored in determining the standard of proof applicable in disciplinary proceedings against members of those professions. Accordingly, rather than broadly interpret Nguyen as applying to all disciplinary proceedings, regardless of the profession involved, we believe the better approach is to examine the profession involved in order to determine whether the interests of both the license holder and the public require application of the clear and convincing standard or the preponderance of the evidence standard of proof.
Courts of other states have recognized that it is neither improper nor unconstitutional to distinguish among professions in determining the applicable standard of proof in disciplinary proceedings. Rather, "[a] state is free to `deal with the different professions according to the needs of the public in relation to each'."8 For example, several courts have upheld the validity of imposing a higher standard of proof in attorney disciplinary proceedings than in physician disciplinary proceedings.9 In each case, the courts, in reaching their holdings, examined the differences between the professions at issue. For example, the court in Gandhi noted that, in the case of physicians, the state is concerned with the "direct and immediate threat to physical health, safety and welfare" and that the consequences of incompetence by a physician could be highly injurious or even fatal and thus not fully compensable by money alone.10 By contrast, incompetent conduct by attorneys can generally be redressed by an award of money damages. The court in In re Polk likewise pointed to the fact that, unlike the practice of law, the practice of medicine concerns life and death consequences to members of the public. Further, the court in Grimm noted the "marked differences between the substantive practice" of attorneys and psychologists "and the manner in which they deal with the public."11
We agree that it is proper to examine the nature of the profession at issue in order to determine whether the preponderance of the evidence standard or the clear and convincing evidence standard applies. The differences between the practice of medicine and the real estate appraisal practice are at least, if not more, marked than those between the practice of medicine and the practice of law. In light of these differences, we conclude that the reasons the Supreme Court found to justify application of the more stringent standard of proof to medical disciplinary proceedings do not compel the application of that standard to appraiser disciplinary proceedings. Incompetent performance by an appraiser does not, as in the case of physicians, have potentially life-threatening consequences. The harms caused by the incompetence of an appraiser can, in most if not all cases, be redressed by an award of monetary damages. Also, unlike physicians,...
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