Opinion
No. 90 CA 0183.
May 16, 1991.
APPEAL FROM NINETEENTH JUDICIAL DISTRICT COURT, EAST BATON ROUGE PARISH, STATE OF LOUISIANA, HONORABLE LEO P. HIGGINBOTHAM, JR., J.
Randall M. Alfred, Houma, for plaintiff-appellant Bill G. Boyd.
James K. McCay, Baton Rouge, for defendant-appellee Louisiana Real Estate Com'n.
Before LOTTINGER, SHORTESS AND CARTER, JJ.
Bill G. Boyd (plaintiff) brings this appeal pursuant to the Louisiana Administrative Procedure Act, more specifically LSA-R.S. 49:964.
Plaintiff was censured following a complaint made to the Louisiana Real Estate Commission (Commission) after an investigation and then a public hearing held January 25, 1989. Plaintiff was notified of the disciplinary proceedings by letter dated December 13, 1988, which was accompanied by a copy of the complaint, which specifically alleged violations of LSA-R.S. 37:1455(A)(18), which prohibited misrepresentation, terms, and LSA-R.S. 37:1455(A)(38), which in catch-all language prohibited "fraudulent, dishonest or [misleading]" conduct.
Both provisions were deleted following the 1989 amendments to LSA-R.S. 37:1455, see 1989 La. Acts No. 655.
Following the hearing, the Commission, by unanimous motion, found plaintiff guilty under LSA-R.S. 37:1455(A)(18) and (38). Thereupon, Commissioner John Rea stated that "[t]he next phase is to consider a penalty, which will be censure, suspension or revocation." and called for a motion upon one of three. Commissioner Val Lowery then made a motion for a penalty of censure and a six-month probationary period. Counsel for the Commission interrupted the proceedings with the following comment:
"Let me interrupt your motion before you get a second on it. Gentlemen, we've run into this before. The censure is not available at the present time under LSA-R.S. 37:1456.
The options are suspension or revocation, either one, and it shall be done in one of those two categories. So, censure is not available to Mr. Boyd since he's been found guilty under LSA-R.S. 37:1455."
(Emphasis added.)
Plaintiff sought review in the district court asserting, inter alia, that the December 13, 1988, notification apprised him of exposure only to the discretionary sanctions in LSA-R.S. 37:1455, which allows censure, suspension, or revocation, as opposed to the mandatory language of LSA-R.S. 37:1456, which requires license suspension or revocation upon a finding of a violation; and, additionally, that the two statutes are entirely irreconcilable and the discretionary provisions of LSA-R.S. 37:1455, as the later enactment, should prevail.
The mandatory language was deleted when LSA-R.S. 37:1456 was amended by 1989 La. Arts No. 655.
The district court rejected this first argument but appears not to have considered the second except to state that "[a]lthough some inconsistencies might appear in the statutes, the Court does not find that Boyd was in any way prejudiced. . . ."
Plaintiff appeals to this court pursuant to LSA-R.S. 49:965. We note at the outset that one of the grounds for reversal of an agency decision is violation of a statutory provision, LSA-R.S. 49:964(G)(1), or "other error of law," LSA-R.S. 49:964(G)(4). While contemporaneous administrative construction of statutes administered by that agency is entitled to great weight, administrative interpretation cannot be contrary to the legislative will as expressed in those statutes, and determination of legislative intent is a judicial matter. Sales Tax District No. 1 v. Express Boat Co., 500 So.2d 364, 370 (La. 1987) ("determining the Legislature's intent is for the courts"). We agree with plaintiff that the co-existence of LSA-R.S. 37:1455 and 37:1456 was an anomaly which imposed entirely irreconcilable standards, one discretionary and the other mandatory. The anomaly was eliminated in 1989 by amendment of the latter to delete the mandatory language.
We believe the Commission erred as a matter of law in not following the discretionary standard of LSA-R.S. 37:1455 and that prejudice to plaintiff clearly resulted because discretion was never exercised as is required by the very statute which he was found to have violated. We therefore remand this matter to the Commission for re-sentencing consistent with the views expressed herein. Costs of this appeal are taxed to the Commission.
REVERSED AND REMANDED.
LOTTINGER, J., concurs and dissents with reasons.
I agree with the reversal of the decision of the Louisiana Real Estate Commission and its apparent ruling that "censure" as a matter of law was not available as a sanction against plaintiff-appellant.
Prior to the 1989 amendments to La.R.S. 37:1455 and 1456 by act 655, the then latest legislative amendment was Act 838 of 1986 which amended La.R.S. 37:1455 and allowed the Commission to "censure" a licensee or registrant. Inasmuch as Act 838 was the latest expression of legislative will at the time of the offense and hearing, any conflict between the provisions of La.R.S. 37:1455 and 1456 must yield to section 1455 as amended by Act 838 of 1986. Thus, the Commission was in error in disallowing the possibility of "censure."
Though I agree with the reversal of the suspension, I respectfully dissent from the ordered remand for re-sentencing. As I read and appreciate the transcript of the Commission's hearing, it is evident the Commission was going to vote for "censure" until it was interrupted by its counsel and advised "censure" was not available. I find it an inefficient utilization of the Commission's time to remand for re-sentencing rather than this court exercising its constitutional authority and imposing" censure."