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Coldwell Banker Residential Real Estate Services Inc. v. New Jersey Real Estate Commission

Decided: July 11, 1990.

COLDWELL BANKER RESIDENTIAL REAL ESTATE SERVICES, INC. AND GERALD A. MILLS, PLAINTIFFS-APPELLANTS,
v.
NEW JERSEY REAL ESTATE COMMISSION AND DARYL G. BELL, DEFENDANTS-RESPONDENTS. IN THE MATTER OF COLDWELL BANKER BEST BUYER AND BEST SELLER PROGRAM



On appeal from the Real Estate Commission.

Deighan, R.s. Cohen and Brochin. The opinion of the court was delivered by Cohen, R.s., J.A.D.

Cohen

This matter is here for the second time. It involves the question whether plaintiffs' proposed discount coupon promotion program is legally permissible. The New Jersey Real Estate Commission ruled that it was not. We affirm.

Plaintiff ("CB") is a real estate broker, wholly owned by Sears Roebuck. In 1983 it inquired of the Commission whether a described promotional program would be lawful. The Commission Director replied that there would be legal objection to the program, because regulations prohibited brokers from making free promotional offerings. In 1985 and 1986, the Commission considered whether to rewrite the regulation, decided not to, and instructed staff to enforce it after adequate notification to brokers.

CB started a Chancery Division suit to bar enforcement, and to declare the underlying statutory provisions unconstitutional. The matter was transferred here. R. 2:2-3(a)(2). We found that no conclusion had been made by the Commission whether CB's proposal would violate any statutory restrictions. We decided that it would be premature for us to determine the

statutory issues before the responsible agency had a chance to address the matter in the light of factual determinations it had not yet made. We thus remanded to the Commission for further proceedings. (A-4853-85T6, decided January 22, 1988.)

After the remand, the Commission held four days of hearings. It issued its thirty-page decision on February 28, 1989, including factual findings which we briefly summarize. CB is a licensed real estate broker. It seeks to institute a program of providing to home sellers who list with CB and to home buyers who purchase through CB discount coupons for Sears merchandise.

CB has 58 owned and 26 franchised offices in New Jersey. Its parent corporations are not licensed brokers. CB has developed what it calls the Best Seller and Best Buyer Plans.*fn1 The current version of the Best Seller Plan includes a booklet of Sears merchandise coupons conferring discounts of specific dollar amounts (as contrasted with percentages) on regular and sale items. The total redemption value is $250 on purchases of at least $3850. There are also specific merchandise coupons worth about $320. The coupons are given to sellers upon listing with CB. Sears absorbs all the "costs" other than printing.

The Best Buyer Plan also includes discount and specific merchandise coupons. They are earned by signing a contract to buy a home through a CB broker, and do not depend on the consummation of the purchase. Sears absorbs all "costs" other than printing. There are $300 in discount coupons for a minimum of $4650 in Sears purchases. The estimated value of the specific merchandise coupons is $394, but could be significantly higher, depending on the merchandise chosen.

The coupons are non-transferable, but the restriction is not enforced by CB or Sears. There is no requirement that the

Sears merchandise relate to the home bought or sold or to ...


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