Opinion
October 9, 1958 —
November 5, 1958.
APPEAL from a judgment of the circuit court for Dane county: EDWIN M. WILKIE, Circuit Judge. Affirmed.
For the appellant there was a brief by Otto Bird of Milwaukee, and oral argument by John D. Bird, Jr., and Arnold C. Otto.
For the respondent there was a brief by the Attorney General and Robert J. Vergeront, assistant attorney general, and oral argument by Mr. Vergeront.
Action by the plaintiff Conrad E. Sailer against the defendant Wisconsin Real Estate Brokers' Board (hereinafter referred to as the "board") instituted pursuant to the Wisconsin Administrative Procedure Act (ch. 227, Stats.) to review an order of the board revoking Sailer's real-estate broker's license in a disciplinary proceeding.
As of the time of the hearing before the board on March 29, 1957, Sailer was fifty-three years of age and had been a licensed real-estate broker in the city of Milwaukee since 1948. Sometime prior to April 16, 1956, he was employed by the owner of a tavern located at North 26th and Cherry streets, known as Windy's Tap, under a written listing contract to sell such premises. On April 16, 1956, one Steve Halmo, a friend of Sailer's, made a verbal offer to Sailer to purchase such property for $21,500 on condition that Sailer sell Halmo's property. This consisted of a tavern and adjoining cottage located at 1933 North 13th street, for $25,000, from which amount Sailer was to deduct a commission of five per cent. Halmo paid $500 in cash to Sailer as earnest money, and Sailer executed and delivered to Halmo the following receipt for such sum:
"$500.00 April 16, 1956. "Received from Steve Halmo Five Hundred Dollars earnest money down payment on Windy's Tap, 26th Cherry, Duplex tavern building. Offering price $21,500.00. Subject to acceptance of seller. Also subject on sale of 1933 No. 13th St."Sailer Realty Co. Conrad E. Sailer."
Sailer prepared no written offer to purchase nor any written listing contract authorizing him to sell the Halmo premises.
At the time Halmo was an inmate of Muirdale Sanitarium in Wauwatosa but was permitted to leave such institution when he desired to transact business. He has remained an inmate of such sanitarium except for a period of three months from June 15, 1956, to September 14, 1956, when he temporarily resided at Phillips, Wisconsin. Halmo's tavern was being operated by a lady lessee who in one place in the testimony is referred to as Halmo's daughter and in another place as his daughter-in-law.
On June 2, 1956, Halmo personally contacted Sailer and demanded the return of the $500, and Sailer promised to return the same but did not. Halmo made attempts to find Sailer but was unable to do so. Afterwards one of the social workers at the sanitarium endeavored in behalf of Halmo to secure the return of the $500 but such efforts were also unavailing. Halmo then turned the matter over to an attorney who in October, 1956, commenced suit against Sailer in the civil court of Milwaukee county for the $500. A default judgment was entered in behalf of Halmo and against Sailer under date of November 7, 1956, in the sum of $500 and costs.
Only $25 was paid by Sailer on such judgment prior to the time of the commencement of proceedings against him before the board. Such proceedings were initiated by the filing with the board on February 28, 1957, of a sworn complaint by Halmo requesting that disciplinary action be taken against Sailer. The complaint set forth the pertinent facts with respect to the payment of the $500 and the unsuccessful efforts to secure its return.
A formal hearing was held by the board on such complaint at which both Halmo and Sailer testified and various exhibits were offered and received. Such evidence substantiated the facts hereinbefore recounted. In addition Sailer testified that he had originally deposited the $500 in his trust account, and then from time to time had withdrawn it in instalments. He claimed that he spent over half of the $500 to further his efforts to sell the Windy's Tap property by advertising the same. No explanation was given as to the use made of the remainder of such deposit. His excuse for continuing to attempt to sell the Windy's Tap property to others was because he was unable to get in personal contact with Halmo, when the latter was at Phillips, and the owner was insisting that Sailer continue such sales efforts.
Sailer further testified that he had a prospect who was willing to pay $25,000 for the Halmo property, but that the deal fell through because the lessee daughter or daughter-in-law insisted on being paid an additional $3,000.
Subsequent to the hearing the board under date of May 17, 1957, entered findings of fact, conclusions of law, and an order, all of which are embraced in a single document. The conclusions of law and order read as follows:
"1. That the respondent, Conrad E. Sailer, by his action in failing to furnish a proper listing contract, and the required written purchase offers, has demonstrated incompetency to act as a broker in such a manner as to safeguard the interests of the public, contrary to section 136.08 (2) (i), Wisconsin statutes;
"2. That the respondent, Conrad E. Sailer, by his action in failing to return complainant's earnest money, and by diverting same from his trust account for his own personal use, has failed, within a reasonable time, to account for or remit any moneys coming into his possession which belong to another person contrary to section 136.08 (2) (h), Wisconsin statutes, and has engaged in conduct which constitutes improper and dishonest dealing, contrary to section 136.08 (2) (h), Wisconsin statutes;
"Wherefore, it is ordered, that the real-estate broker's license of Conrad E. Sailer, doing business as Sailer Realty Company, be and the same is hereby revoked."
Sailer then instituted the within action for review in the circuit court for Dane county. In such circuit court action Halmo filed a written notice of appearance and statement of position. Among other things, Halmo stated therein that the $500 had been repaid to him, and that he wished the board's order of revocation of Sailer's license to be set aside and vacated and his complaint withdrawn.
Under date of December 30, 1957, the circuit court entered judgment confirming the board's findings of fact, conclusions of law, and order. From such judgment Sailer has appealed.
Sailer advances the following three contentions on this appeal:
(1) That the board's first conclusion of law, to the effect that Sailer had demonstrated his incompetency as a broker by his actions in failing to furnish a proper listing agreement, and offers of purchase, is beyond the scope of the complaint and not sustained by the evidence.
(2) That the penalty imposed by the board in revoking Sailer's license was too severe and constituted arbitrary action within the meaning of sec. 227.20 (1) (e), Stats.
(3) That it was error for the circuit court not to grant the complainant Halmo's request to withdraw his complaint and to have the board's order of revocation of license set aside.
Halmo's written complaint to the board, which initiated the board's disciplinary proceedings against Sailer, contained the following allegations:
"That on or about April 16, 1956, defendant Sailer, upon promises of selling plaintiff's tavern and residence building at 1933 N. 13th St., Milwaukee, Wis., did induce this plaintiff to place a Five Hundred ($500) Dollars deposit with him, Conrad E. Sailer, on another tavern-investment property at 2526 W. Cherry St., Milwaukee. Wis., subject to and conditional upon defendant's selling this plaintiff's property at 1933 N. 13th St., above stated, which terms were listed in a simple money-received receipt given this plaintiff on April 16, 1956, and that no other papers, contracts, or offers of purchase were signed, shown, or given to this plaintiff."
Sailer violated a rule of the board in failing to reduce Halmo's offer to purchase the Windy's Tap premises to writing and have the same subscribed by Halmo and leaving a copy thereof with Halmo. Such rule is 5 Wis. Adm. Code sec. REB 5.02 (2), which reads as follows:
"Offer to Purchase. The broker or salesman shall leave with a person offering to buy such property, an exact and complete copy of the offer to purchase which he had signed at the time of signature."
Furthermore, by not having Halmo sign a written listing contract employing Sailer to sell the Halmo property, Sailer put himself in a position where he could not legally collect his commission if he had been successful in effecting a sale. Sec. 240.10, Stats.
We have no hesitancy in concluding that the complaint did sufficiently allege the facts upon which the board's determination of incompetency was, based, and that the evidence sustained the same. Sec. 136.08 (2) (i), Stats., makes demonstrated incompetency a ground for suspension or revocation of a real-estate broker's license.
Counsel for Sailer strenuously maintain that revocation of license was such a severe penalty for the board to invoke that it constituted arbitrary action which should be reversed and set aside. Such revocation was grounded by the board upon sec. 136.08 (2) (h) as well as upon sec. 136.08 (2) (i), Stats. Sec. 136.08 (2) (h) provides that failure to account within a reasonable time for moneys belonging to another which come into a broker's possession is ground for a suspension or revocation of license. The misappropriation by Sailer of the $500 was admitted by his own testimony.
Whether the discipline meted out by the board takes the form of a revocation of license instead of a suspension of the same for a limited period lies within the discretion of the board and not a reviewing court. Cf., Nolan v. Wisconsin R. E. Brokers' Board (1958), 3 Wis.2d 510, 89 N.W.2d 317. There has been no attempt here to establish that the revocation of Sailer's license was a more-severe penalty than is being exacted by the board for similar offenses committed by other brokers. Therefore, there is no basis upon which this court might hold such penalty to be arbitrary or capricious within the meaning of sec. 227.20(1) (e), Stats.
There remains for consideration the charge that it was error for the trial court not to have given effect to Halmo's written request to withdraw his complaint and for the setting aside of the board's order of revocation of license.
Sec. 227.16(1), Stats., requires that in the circuit court action, in which review of a decision of an administrative agency is sought, a copy of the petition for review shall be served upon all persons who appeared before the agency in the proceeding. Pursuant to this statute Halmo was so served with Sailer's complaint in the circuit court action. The filing of Halmo's written notice of appearance and statement of position is specifically authorized by sec. 227.16(2). However, neither such subsection, nor any other provision of ch. 227, Stats., prescribes what weight if any the circuit court must accord thereto.
The disciplinary power conferred upon the board by sec. 136.08, Stats., is for the protection of the general public and not merely for the individual who was harmed by the incompetence or dishonesty of the broker against whom charges have been filed. The Florida supreme court has so held with respect to a similar Florida statute. Ahern v. Florida R. E. Comm. (1942), 149 Fla. 706, 6 So.2d 857. Once disciplinary proceedings have been invoked against a broker upon complaint, such as in the instant case, it is for the board and not the complainant to determine whether protection of the public requires the exaction of a license suspension or revocation.
By the Court. — Judgment affirmed.
MARTIN, C.J., and BROWN, J., took no part.