Parrish v. North Carolina Real Estate Licensing Board

CLARK, Judge. The respondent first contends that the order of the Board was fatally defective and procedurally unlawful because it found respondent guilty of violating G.S. 93A-6(a)(8) when respondent was not notified that he was charged with violating that section of the statute. *104 The Board is an administrative agency subject to the requirements of Chapter 150A of the North Carolina General Statutes. G.S. 150A-23(b) provides that in contested cases: “The parties shall be given a reasonable notice of the hearing, which notice shall include: (2) A reference to the particular sections of the statutes and rules involved; . . .” The letter of 21 July 1977, which notified respondent of a hearing before the Board, set forth the following facts: “(3) That sometime in December, 1976 you received a written offer to purchase the property wherein J. C. Wheeler and Douglas Y. Perry, as buyers, offered to pay a purchase price of $160,000 and wherein it was represented that a $1,000 was being tendered with the offer as an earnest money deposit. (4) That you represented to the owners, Mr. and Mrs. Hartman, that you were neither a partner nor investor in the purchase. (5) That the transaction was completed and closed on February 15, 1977 and the property was conveyed by the Hartmans. (6) That you received a $9,000 commission from the Hart-mans. (7) That you never received the $1,000 earnest money deposit as represented in the sales contract; that you were a co-equal partner with J. C. Wheeler and Douglas Y. Perry in the purchase of said property; that you acted for yourself, J. C. Wheeler, and Douglas Y. Perry, as buyers; and that all of this was accomplished without the knowledge or consent of the Hartmans.” The letter indicated that the stated facts, if found to be true would constitute violations of G.S. 93A-6(a)(1), (4) and (10). The letter, however, did not indicate that the respondent was also chargéd with a violation of G.S. 93A-6(a)(8) for failing to deposit $1,000 in an escrow account. *105 G.S. 93A-6 which empowers the Board to revoke the license of a real estate broker or salesman is penal in nature. Licensing Board v. Woodard, 27 N.C. App. 398, 219 S.E. 2d 271, cert. denied, 288 N.C. 731, 220 S.E. 2d 621 (1975). In administrative proceedings, statutory procedures which are mandatory must be strictly followed, especially in proceedings that are penal in nature. 2 Am. Jur. 2d Administrative Law § 354 (1962). We must therefore strictly construe the notice requirements in G.S. 150A-23. In addition, in criminal proceedings, an “indictment must charge the offense with sufficient certainty to apprise the defendant of the specific accusation against him so as to enable him to prepare his defense . ...” 7 Strong’s N.C. Index 3d Indictment and Warrant § 9.1. The same rationale is applicable in proceedings pursuant to G.S. 150A-23. Respondent was notified that he was charged with violating G.S. 93A-6(a)(1), (4) and (10), which provide: “(1) Making any substantial and willful misrepresentations, or (4) Acting for more than one party in a transaction without the knowledge of all parties for whom he acts, or (10) Any other conduct whether of the same or a different character from that hereinbefore specified which constitutes improper, fraudulent or dishonest dealing, . . .” Section 4 is relevant only to the issue of whether the respondent had failed to inform the vendors of his status as purchaser of the property and provides no notice of charges relating to the respondent’s failure to establish an escrow account. Sections (1) and (10) refer specifically to acts that are intentional or willful. A defense to either of these statutory violations is that the respondent did not act intentionally but acted through oversight. There is no reference in either section to incompetence. Nor is there any statement in the notice which would indicate that the respondent’s competency and ability as a real estate broker were in question. Therefore, the notice did not adequately apprise the *106 respondent of the charges against him so as to enable him to prepare his defense. The Board contends that G.S. 93A-6(a)(8) is essentially a lesser included offense of the other violations, and, therefore, notice that respondent was charged with violations of G.S. 93A-6 (a)(1) and (10) is sufficient to constitute notice of charges of incompetence. The test is whether the offense charged includes all the essential elements of the offense of which the defendant is convicted. See 7 Strong’s N.C. Index 3d Indictment and Warrant § 18. G.S. 93A-6(a)(8) provides that a real estate broker’s license may be revoked or suspended if he is “unworthy or incompetent to act as a real estate broker or salesman in such manner as to safeguard the interests of the public . . . .” This section requires findings on issues that are not included in the other sections. G.S. 93A-6(a)(1) and (10) do not raise any issues of respondent’s worthiness or competency to act as a real estate agent or broker, or his ability to safeguard the interests of the public. Therefore, the ap-pellee’s contention that G.S. 93A-6(a)(8) is a lesser included offense of G.S. 93A-6(a)(1) and (10) is without merit. Further, assuming for the purposes of this discussion that the notice was sufficient, the facts do not support a finding that respondent violated G.S. 93A-6(a)(8) in that he was “unworthy or incompetent.” The finding was based solely on respondent’s admission that he had failed, through oversight, to obtain a $1,000.00 earnest money deposit. There was no evidence that respondent had failed on any other occasion to obtain such deposit or that he was otherwise incapable of performing the duties of real estate broker. The evidence tends to show that the sale of the property was assured from the time it was offered for sale, and that complainant would suffer no loss as a result of respondent’s failure to obtain the deposit. “Incompetency” is defined as, “Lack of ability, legal qualification, or fitness to discharge the required duty.” Black’s Law Dictionary 906 (4th ed. 1957). “Unworthy” is defined as, “Unbecoming, discreditable, not having suitable qualities or value.” Id. at 1709. The finding that respondent on a single occasion failed to obtain an earnest money deposit is insufficient to support the conclusion that he was unworthy and incompetent in violation of G.S. 93A-6(a)(8). *107 The order appealed from is reversed and the cause remanded for vacation of the order of the North Carolina Real Estate Licensing Board. Reversed and remanded. Chief Judge MORRIS and Judge ARNOLD concur.