Tuerk v. State, Dept. of Licensing

• Decision Date: 13 January 1994
• Docket Number: No. 60360-0,60360-0
• Citation: 864 P.2d 1382,123 Wn.2d 120
• Court: Washington Supreme Court
• Parties: Maxine M. TUERK, a widow, Respondent, v. The STATE of Washington, DEPARTMENT OF LICENSING; Mary Faulk, Director, and John Doe Faulk, wife and husband; Karen Jarvis and John Doe Jarvis, wife and husband; Sandra Spencer and John Doe Spencer, wife and husband; and Donna Ashman and John Doe Ashman, wife and husband, Petitioners.

Page 120

123 Wn.2d 120

864 P.2d 1382

Maxine M. TUERK, a widow, Respondent, v. The STATE of Washington, DEPARTMENT OF LICENSING; Mary Faulk, Director, and John Doe Faulk, wife and husband Karen Jarvis and John Doe Jarvis, wife and husband; Sandra Spencer and John Doe Spencer, wife and husband; and Donna Ashman and John Doe Ashman, wife and husband, Petitioners.

No. 60360-0.

Supreme Court of Washington En Banc.

Jan. 13, 1994.

Reconsideration Denied Feb. 16, 1994.

Christine Gregoire, Atty. Gen. and Elizabeth J. Erwin, Asst. Atty. Gen., Olympia, for petitioners.

Russell A. Austin, Jr., Bellevue, for respondent.

DOLLIVER, Justice.

The Department of Licensing (DOL), and four DOL employees seek review of the Court of Appeals reversal of the trial court's grant of summary judgment in favor of DOL. The Court of Appeals held DOL acted without legal authority in refusing to renew respondent Maxine Tuerk's real estate broker's license for failure to supply DOL with her current home address. We reverse.

In 1969, when Maxine Tuerk was first licensed in Washington as a real estate broker, she submitted her home address to DOL. Since that time, Tuerk apparently has been adamant against providing her home address to DOL. In 1982, Tuerk challenged DOL's authority to request the information. The parties entered into a stipulation wherein DOL agreed to refrain from requesting Tuerk's home address based upon the circumstances which existed at that time.

In October 1987, those circumstances changed when DOL promulgated WAC 308-124C-010(3), which provides:

It is the responsibility of each and every licensee to keep the director [of licensing] informed of his or her current home address.

The purpose of the WAC is to

alleviate the difficulties DOL experiences in locating an applicant who does not yet have a business location, in locating a licensee who is in the process of moving their business, and in locating a licensee who no longer uses his or her business address so as to avoid service of charges concerning the revocation or suspension of a license....

Clerk's Papers, at 100-01. DOL implemented this regulation on its change of business address forms.

In July 1988, Tuerk submitted a change of business address form notifying DOL of her move from Bellevue to Bothell. Tuerk wrote "not applicable" across the blank requesting her home address. At this time, DOL was reviewing Tuerk's file to determine whether she qualified for the renewal of her license. RCW 18.85.140. A supervisor in the Broker's Section of the Real Estate Licensing Unit of DOL, Donna Ashman, sent Tuerk three letters, dated August 29, 1988, September 27, 1988, and November 3, 1988, notifying her that her license could not be renewed without the requested information. Tuerk, however, refused to supply her home address. As a consequence, Tuerk's file was incomplete, and DOL was unable to process the renewal. Tuerk's license expired naturally in October 1988.

In January 1989, the Assistant Program Manager of the Professional Programs Management Division of DOL, Karen Jarvis, wrote Tuerk advising her again that her license could not be renewed until she complied with WAC 308-124C-010(3) and provided DOL with her current home address. In response, Tuerk's counsel advised DOL he could obtain affidavits that Tuerk resided in Snohomish County, Washington. This information was considered insufficient to process her renewal. As the Director of DOL, Mary Faulk, stated, "Without [Tuerk's] home address, her renewal cannot be evaluated by DOL to determine if she is qualified for a broker's license ..." Clerk's Papers, at 100.

On May 22, 1989, Tuerk filed suit against DOL and four employees alleging negligent and/or intentional infliction of emotional distress, defamation, violations of Const. art. 1, §§ 2, 7, and violations of 42 U.S.C. §§ 1983, 1985, 1986. The trial court denied Tuerk's motion for partial summary judgment on the issue of liability. It ruled DOL was authorized to condition renewal of Tuerk's license on the submission of her home address. DOL's subsequent motion for summary judgment was granted.

Tuerk appealed. The Court of Appeals reversed, holding WAC 308-124C-010(3) did not authorize DOL to condition renewal of Tuerk's broker's license upon submission of her home address. Tuerk v. Department of Licensing, 67 Wash.App. 872, 876, 841 P.2d 61 (1992). In dicta, the court speculated that DOL's action, even if authorized, might violate due process. The dissent argued DOL's authority to condition Tuerk's renewal was implied within the grant of its broader statutory authority. Tuerk, 67 Wash.App. at 877-78, 841 P.2d 61 (Morgan, J., dissenting). This court granted DOL's petition for review. We reverse.

In its petition, DOL challenges whether its actions violated Tuerk's due process rights. We note, however, the Court of Appeals discussion of the due process issue was dicta contained in a footnote. Moreover, Tuerk's complaint fails to allege violations of Const. art. 1, § 3 or the Fourteenth Amendment. Generally, the scope of review of a court of appeals decision is limited to the questions raised in the petition for review and the answer. RAP 13.7(b). See State v. Collins, 121 Wash.2d 168, 178-79, 847 P.2d 919 (1993). This court, however, has discretion to waive this rule to " 'serve the ends of justice' ". See Kruse v. Hemp, 121 Wash.2d 715, 721, 853 P.2d 1373 (1993) (quoting RAP 1.2(c)). We believe it appropriate to exercise our discretion in this case to address whether DOL's refusal to process Tuerk's renewal without a hearing was authorized under WAC 308-124C-010(3), RCW 18.85, and RCW 34.04, the administrative procedure act in effect when Tuerk filed suit. See RCW 34.05.902.

The first issue is whether DOL was authorized to require brokers to provide their current home addresses on its change of business address forms. Tuerk argues WAC 308-124C-010(3) does not expressly authorize this requirement. DOL's authority, however, is not so limited.

Administrative agencies have those powers expressly granted to them and those necessarily implied from their statutory delegation of authority. Municipality of Metro. Seattle v. Public Empl. Relations Comm'n, 118 Wash.2d 621, 633, 826 P.2d 158 (1992). Agencies have implied authority to carry out their legislatively mandated purposes. See Municipality of Metro. Seattle v. Public Empl. Relations Comm'n, supra; Stegriy v. King Cy. Bd. of Appeals, 39 Wash.App. 346, 693 P.2d 183 (1984); Greig v. Metzler, 33 Wash.App. 223, 653 P.2d 1346 (1982); Anderson, Leech & Morse, Inc. v. State Liquor Control Bd., 89 Wash.2d 688, 694-96, 575 P.2d 221 (1978). When a power is granted to an agency, "everything lawful and necessary to the effectual execution of the power" is also granted by implication of law. State ex rel. Puget Sound Nav. Co. v. Department of Transp., 33 Wash.2d 448, 481, 206 P.2d 456 (1949) (quoting State ex rel. R.R. Comm'n v. Great N. Ry. Co., 68 Wash. 257, 123 P. 8 (1912)). See Dalton v. Clarke, 18 Wash.2d 322, 331-32, 139 P.2d 291 (1943). Likewise, implied authority is found where an agency is charged with a specific duty, but the means of accomplishing that duty are not set forth by the Legislature. Ortblad v. State, 85 Wash.2d 109, 117, 530 P.2d 635 (1975); Green River Comm'ty College v. Higher Educ. Personnel Bd., 95 Wash.2d 962, 633 P.2d 1324 (1981). Agencies also have implied authority to determine specific factors necessary to meet a legislatively mandated general standard. See ASARCO, Inc. v. Puget Sound Air Pollution Control Agency, 51 Wash.App. 49, 751 P.2d 1229 (1988), aff'd, 112 Wash.2d 314, 771 P.2d 335 (1989).

Agencies do not have implied authority to determine issues outside of that agency's delegated functions or purpose. See Taylor v. Morris, 88 Wash.2d 586, 564 P.2d 795 (1977). See also Woolery v. Department of Social & Health Servs., 25 Wash.App. 762, 612 P.2d 1 (1980) (following Taylor v. Morris, supra ). Nor can agency rules or regulations amend legislative enactments. University of Wash. v. Manson, 98 Wash.2d 552, 562, 656 P.2d 1050 (1983).

In this case, DOL is charged with governing the activities of real estate brokers through the issuance and enforcement of rules and regulations. RCW 18.85.040. Within other relevant statutory constraints, the power to enforce a regulation implies the concomitant authority to interpret that regulation. See Municipality of Metro. Seattle v. Public Empl. Relations Comm'n, supra; Ortblad v. State, supra. DOL's power to interpret its regulations governing real estate brokers is limited by the condition that those interpretations be consistent with RCW 18.85. RCW 18.85.040. Requiring brokers to submit their current home addresses on change of business address forms allows DOL to efficiently locate brokers who do not yet have a business location, who are in the process of moving their businesses, or who no longer use their business addresses. This purpose is fully consistent with DOL's powers and functions to regulate the activities of brokers. We hold DOL's implementation of WAC 308-124C-010 to be within its statutory authority.

The next issue is whether DOL was authorized to refuse to process the renewal of Tuerk's license based on her failure to complete the change of business address form. RCW 34.04.170 provides that a licensee make a "timely and sufficient" application for renewal of a license. Thus, the licensing agency has the implied authority to determine what constitutes a "sufficient" application. See ASARCO v. Puget Sound Air Pollution Control Agency, supra. This authority does not amend nor is it inconsistent with RCW 18.85.140, as asserted by Tuerk. RCW 18.85.140 requires real estate brokers to pay a fee before obtaining renewal of their licenses. DOL is not precluded, however, from determining whether a renewal application is "sufficient" in other respects.

Tuerk had the obligation to ensure her file was complete before DOL...