N. C. Real Estate Licensing Board v. Coe

BRITT, Judge. G.S. 93A-6 empowers the Board, following specified procedures, to revoke or suspend the license of a real estate broker found guilty of either of the unlawful offenses or unethical acts set forth in the statute. Among other things, the statute authorizes the revocation or suspension of the license of a broker who “has been convicted or has entered a plea of nolo contendere upon which a finding of guilty and final judgment has been entered in a court of competent jurisdiction in this State or in any other state of the criminal offense of embezzlement, obtaining money under false pretenses, forgery, conspiracy to defraud or any similar offense or offenses involving moral turpitude . . . . ” The Board based its suspension of defendant’s license on the conclusion that he pled nolo contendere to the violation of [86] a criminal offense involving moral turpitude. We disagree with the Board’s action and hold that the superior court erred in affirming the order suspending defendant’s license. It is well settled that statutes in derogation of the common law must be strictly construed. Ellington v. Bradford, 242 N.C. 159, 86 S.E. 2d 925 (1955); McKinney v. Deneen, 231 N.C. 540, 58 S.E. 2d 107 (1950). Suffice to say, governmental regulation of real estate brokers was unknown to the common law. Admittedly, defendant was not convicted of, nor did he plead nolo contendere to, the criminal offense of embezzlement, obtaining money under false pretenses, forgery, or conspiracy to defraud. The question then arises, did he plead nolo contendere to “any similar offense or offenses involving moral turpitude?” The record sets forth a copy of the judgment and commitment of the U. S. District Court which contains the following: “ [D] e-fendant upon his plea of nolo contendere has been convicted of the offense of wilfully and knowingly filing a false and fraudulent joint income tax return as charged in Count 3 of the indictment . ” Clearly the offense that defendant pled nolo contendere to and was convicted of was not similar to embezzlement, obtaining money under false pretenses, or forgery, but the Board insists that the offense is similar to conspiracy to defraud. We disagree. In 2 Strong, N. C. Index 2d, Conspiracy, § 3, pp. 170-171, we find: “A criminal conspiracy is the unlawful concurrence of two or more persons in a scheme or agreement to do an unlawful act, or to do a lawful act in an unlawful way or by unlawful means. The unlawful agreement and not the execution of the agreement is the offense.” Applying the strict construction rule as we are required to do, we do not think filing a false and fraudulent income tax return, either individually or jointly, is an offense similar to conspiracy to defraud in which latter offense the unlawful agreement is the gist of the offense. The judgment appealed from is Reversed. Judges Hedrick and Vaughn concur.