Kahn v. State Bd. of Auctioneer Examiners

• Court: Commonwealth Court of Pennsylvania
• Citation: 785 A.2d 512
• Parties: Azam KAHN, Petitioner, v. STATE BOARD OF AUCTIONEER EXAMINERS, Respondent, Abid M. Butt, Petitioner. v. State Board of Auctioneer Examiners, Respondent.
• Decision Date: 03 October 2001

785 A.2d 512

Azam KAHN, Petitioner,
v.
STATE BOARD OF AUCTIONEER EXAMINERS, Respondent,
Abid M. Butt, Petitioner.
v.
State Board of Auctioneer Examiners, Respondent

Commonwealth Court of Pennsylvania.

Argued September 10, 2001.

Decided October 3, 2001.

Reargument Denied December 13, 2001.

785 A.2d 514

Edgar R. Casper, Harrisburg, for petitioner

Bernadette Paul, Harrisburg, for respondent.

Before McGINLEY, Judge, PELLEGRINI, Judge, and McCLOSKEY, Senior Judge.

785 A.2d 513

PELLEGRINI, Judge

Before this Court are two consolidated appeals by Azam Kahn (Kahn) and Abid M. Butt (Butt), collectively, Auctioneers, from orders of the Commonwealth of Pennsylvania, State Board of Auctioneer Examiners (Board) imposing upon Kahn a $2,000 penalty and revoking Butt's auctioneer license for purported conduct each had engaged in other states in violation of Section 20(a)(11) of the Auctioneer and Auction Licensing Act (Act).¹

On July 16, 1999, Kahn and Butt were each issued and served with a Notice and Order to Show Cause by the Commonwealth of Pennsylvania, Bureau of Professional and Occupational Affairs (Bureau) in which it was alleged that both Pennsylvania-licensed auctioneers had violated Section 20(a)(11) of the Act because they had disciplinary action taken against their auctioneer licenses in other states. Kahn's notice stated that he violated the Act due to the following actions taken by Virginia and Maine:

• on January 12, 1999, the Virginia Auctioneer Board approved a Consent Order imposing a $1,000 administrative penalty against Kahn for making material misrepresentations in the course of performing auctioneer duties; and

• on December 8, 1997, the Maine Board of Licensing of Auctioneers through a Consent Agreement imposed a $250 penalty and warned Kahn for making misrepresentations in advertisements.

Kahn filed an answer denying the characterizations of the other state disciplinary actions, explaining that the $1,000 he paid to the Virginia Board was for reimbursement of administrative costs and not a penalty, and there was no finding that he had made any material misrepresentations. He also argued that the Maine Consent Agreement made no finding that he violated any rules or regulations of that state, but only provided that he "denies, does not admit, but does not contest allegations of Complaint No. 122."

In Butt's Notice, the Bureau alleged that he violated the Act due to the following actions taken by Virginia, Texas and Wisconsin:

• on January 22, 1992, the Virginia Auctioneer's Board adopted a Consent Order imposing a monetary penalty of $900 against Butt for misleading advertising and for violating requirements

785 A.2d 515

to properly execute auction contracts

• on March 20, 1995, the Texas Commission of Licensing and Regulation, through a Final Order, ordered Butt to cease and desist committing violations involving improper advertising and imposed an administrative penalty of $750;

• on November 14, 1996, the Texas Commission of Licensing and Regulation, through a Final Order, imposed an administrative penalty of $500 against Butt for misleading advertising; and

• on April 26, 1999, the Wisconsin Auctioneer Board, through a Final Decision and Order, suspended Butt's certificate of registration for one year for unprofessional conduct when he failed to disclose on his application disciplinary actions that had been taken in the other two states.

In response, Butt filed an answer arguing that in regard to the Virginia disciplinary action, he had done nothing wrong and there was no finding of fault or admission of guilt. He also alleged that because these were minor violations, it was less expensive to pay a fine than to attend a hearing. As to the Texas disciplinary action, he alleged that the omission of his name in an advertisement was a minor oversight by the advertising agent, and at the auction he forgot to announce his license number or make other legally mandated disclosures. He stated that he paid a fine rather than contest the charges at a hearing. As to the second disciplinary action in Texas relative to misleading advertising, he stated that he simply failed to comply with a font requirement. Regarding the Wisconsin disciplinary action, he denied that he had made a material misstatement and alleged that his failure to disclose discipline by other states was a mistake made by a temporary employee who filled out his license application.

A consolidated hearing was held before the Board. Neither Kahn nor Butt appeared to testify, but their attorney argued that it would be unfair or an abuse of the Board's discretion to take actions against them based upon the mere fact that disciplinary action had been taken against them in other states. After arguments, the Board found that it had a legitimate interest in regulating the practice of auctioneering in order to safeguard the public, and both Kahn and Butt had been disciplined by other states for incidents of misconduct that were serious enough to establish a pattern, thereby warranting the penalty imposed against Kahn and the revocation of Butt's auctioneer license. This consolidated appeal by Kahn and Butt followed.²

I.

Auctioneers contend that they were denied procedural due process because there was a commingling of prosecutorial and administrative functions between the Prosecution Division and the Board. More specifically, they contend that the Prosecution Division offered them the opportunity to enter into Consent Agreements which Auctioneers agreed to sign, but the Board refused to approve the signed Agreements and scheduled a hearing, thereby taking over the prosecutorial function.

785 A.2d 516

As a general rule, where a tribunal supervises an investigation and is also responsible for adjudicating the matter after a formal adversarial hearing, the tribunal's decision is not, per se, biased, provided there is an adequate separation between the prosecutorial and adjudicatory functions. Makris v. Bureau of Professional and Occupational Affairs, 143 Pa.Cmwlth. 456, 599 A.2d 279, 284 (1991). The test to determine if there has been an...