Opinion
Aug. 20, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1169
Arthur B. Odden, Denver, for plaintiff-appellant.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., William Tucker, Asst. Atty. Gen., Denver, for defendants-appellees.
SILVERSTEIN, Chief Judge.
Plaintiff appeals from a judgment of the Denver District Court which affirmed a decision by the executive director of the Department of Regulatory Agencies to revoke the license of plaintiff's collection agency (Centennial). We affirm.
I
Five complaints concerning Centennial's alleged wrongful activities were filed during a six-month period from September 1971 to March 1972. A copy of each complaint was mailed to Centennial by the executive director and Centennial responded in writing to each complaint. No further action on the complaints was taken until the Collection Agency Board filed written charges on or about June 20, 1972. A formal hearing was held on June 27, 1972. Centennial contends that a full formal hearing should have been held upon the filing of each complaint. This, clearly, is not the procedure contemplated by the statute. The proper procedures are set forth in 1969 Perm.Supp., C.R.S.1963, 27--1--18, which provides:
'(1) Upon the filing with the executive director by any interested person of a verified written complaint charging any licensee with a violation of this article or with conduct such as to show licensee unworthy to continue to operate a collection agency within the state, the executive director shall immediately forward said complaint to the board which shall make or cause to be made investigation thereof.
* * *
* * *
'(8) If the board shall find Probable cause for the revocation of the license of any licensee it shall file written charges with the executive director against such licensee, setting forth the alleged cause or causes for Revocation of his license. Whereupon the executive director shall immediately issue summons to such licensee . . . stating the alleged grounds for the revocation of the license held by such licensee and fixing a time and place for the hearing thereof which shall not be more than twenty days from the time of the service of such summons . . .
'(9) If, after such hearing, the executive director shall find the licensee guilty of such charges, his license shall be revoked and cancelled . . ..' (emphasis supplied)
Our review of the record discloses that these procedures were properly and fairly followed. Contrary to Centennial's contention, there is no duty to hold a formal hearing every time a complaint is filed or even whenever the Board finds probable cause to believe that a violation has occurred. A formal hearing is required only after the Board has determined that there is probable cause to Revoke the agency's license. Here, it was within the Collection Agency Board's discretion not to file charges until five separate complaints, covering a six-month period, had been received.
II
Centennial also contends that the executive director's findings, made at the conclusion of the hearing, were not supported by substantial evidence. We disagree.
The executive director found that Centennial had violated 1967 Perm.Supp., C.R.S.1963, 27--1--25(2)(b), which provides that:
'No licensee shall threaten, coerce, intimidate, infer consequences or effects in which there is no truth or substance, simulate legal process, use innuendoes or misleading phraseology, or engage in unethical or unfair tactics.'
One of the verified complaints against Centennial had been filed by a Mr. and Mrs. Liggett in September 1971. At the hearing, Mrs. Liggett testified that a Mr. Turner of Centennial Collection Agency called her home as often as twice a week from 1971 until January or February of 1972 to ascertain the whereabouts of her adult son. It is undisputed that the debt in question was owed only by the Liggetts' son and that neither Mr. nor Mrs. Liggett was responsible for the debt. Nevertheless, in the last telephone call Mr. Turner asked Mr. Liggett, 'Do you know that you have raised a deadbeat for a son?' and 'What kind of a father are you?' Mrs. Liggett observed that her husband was becoming 'upset' and picked up the extension while her husband remained on the line. Mr. Turner then stated he was an attorney, accused Mr. and Mrs. Liggett of 'perjury,' and told them they would be subject to arrest for withholding and concealing information. Centennial did not deny that these statements, if made, were threatening and intimidating and inferred consequences in which there was no truth or substance.
Contrary to Centennial's contention, it is of no consequence that the threats and intimidation complained of by the Liggetts occurred on only one particular occasion. The evidence at the hearing was sufficient to support the executive director's finding that Centennial had violated 1967 Perm.Supp., C.R.S.1963, 27--1--25(2)(b).
III
Finally, Centennial argues that the trial court abused its discretion in upholding the executive director's finding that Centennial had failed to comply properly with Rule No. 11 of the Collection Agency Board. Rule 11 provides that:
'All licensees shall account to their clients for all money collected within thirty days from the last day of the month in which the same is collected.'
It was undisputed that the complainant, Aaristocrat Landscaping Service, listed $969 worth of accounts receivable with Centennial for collection; that Centennial collected a total of $369 on these accounts; that their contract provided that Centennial would be paid for its services 'on a contingent commission basis' at the rate of 33 1/3% Of the amount Collected; and that the total paid to Aaristocrat by Centennial was only $46.71.
Centennial contends that it complied with Rule 11 and that this compliance was established by a letter sent by Centennial to Aaristocrat on January 17, 1972, and admitted into evidence, which contained the following language:
'In view of your treachery and subversion, we feel that we no longer desire to be associated with you. We feel that we would have had an excellent recovery on the items which you assigned and therefore we feel justified in charging you the amounts that we would have been entitled to, had you cooperated with us as you should have. You assigned a total of $969.26 and we are entitled to $323.08. We have presently in our possession $369.79 which represents collection on Jerry Smith, Dr. Walter Huttner, Frank Roitsch, and Mr. Griffith. We will remit $46.71 to you on February 20, 1972, which is our next normal remittance day.'
Both the executive director and the trial court found that this letter was not a proper accounting under Rule 11. We agree.
Other jurisdictions have held that the term 'account for' means to pay over the money to the person entitled thereto and stands in opposition to the right of appropriation to one's own use and benefit. E.g., Hamilton National Bank v. United States, 99 F.2d 570 (6th Cir.); Employment Security Commission v. Great Western Hotel Management, Inc., 452 P.2d 211 (Wyo.).
In Victory Carriers, Inc. v. United States, 467 F.2d 1334 (Ct.Cl.) the United States Court of Claims rejected an argument similar to Centennial's:
'We hold that the term 'account for,' as used in the agency agreement before us, means not only to render an accounting of the money but also to be responsible therefor and to pay over to the United States the amount of the shortage.'
Similarly, it has been held that until an executor has paid or delivered over the property to those legally entitled to it, he has not 'accounted' therefor. In re Pringle's Estate, 51 Wyo. 352, 67 P.2d 204.
1969 Perm.Supp., C.R.S.1963, 3--16--5(7), provides that '(i)n all cases under review the court shall determine all questions of law and interpret the statutory and constitutional provisions involved and shall apply such interpretation to the facts duly found or established.' We find no error or abuse of discretion by the trial court in affirming the executive director's finding that Centennial had violated Rule 11 of the rules and regulations of the Collection Agency Board.
We have examined the other contentions raised by Centennial and find them to be without merit.
Judgment affirmed.
PIERCE and SMITH, JJ., concur.