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New Jersey Real Estate Commission v. Nicklus

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


November 28, 2007

NEW JERSEY REAL ESTATE COMMISSION, RESPONDENT,
v.
DOROTHY A. NICKLUS, APPELLANT.

On appeal from a decision of the New Jersey Real Estate Commission, Docket No. MOR-05-020.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 31, 2007

Before Judges Parker and R. B. Coleman.

Dorothy Nicklus appeals from a final administrative decision rendered on September 1, 2006 by the New Jersey Real Estate Commission (REC) revoking her real estate broker's and instructor's licenses for five years, rendering her ineligible for a sales person's license for five years and ordering her to pay a $3,000 fine.

Nicklus had been a licensed real estate broker in New Jersey for fifteen years. She was also a licensed real estate broker in New York. Her New York license was suspended, effective May 1, 2002, after a hearing during which it was found that she improperly retained a $25,000 deposit from the winning bidder at a real estate auction. Defendant appealed the New York decision and she believed that the order of suspension was stayed during the pendency of the appeal. The order of suspension was ultimately affirmed on January 9, 2004. In a civil action against Nicklus arising out of the same incident, the New York Supreme Court granted Nicklus's motion for summary judgment dismissing the complaint.

During the pendency of the appeal, Nicklus applied for renewal of her New Jersey licenses, but failed to disclose the New York disciplinary action on the applications. At the hearing before the REC, plaintiff claimed that her attorney told her that since an appeal was pending, she did not have to report the New York suspension on her New Jersey application. She further testified that she believed the REC was aware of the New York disciplinary action because her attorney told her he called the REC to discuss it.

The REC found, however, that defendant's failure to disclose the pendency and the nature of the New York disciplinary action - failure to return a $25,000 deposit on a failed sale, claiming it was her commission - demonstrated her "unworthiness and incompetency." Accordingly, the REC revoked defendant's license for five years in order to protect the public "from fraud, incompetence, misinterpretation, sharp or unconscionable practice" in the real estate brokerage profession. (Quoting Ellsworth Dobbs, Inc. v. Johnson, 50 N.J. 528, 553 (1967)).

In this appeal, defendant argues that the REC's decision was arbitrary, capricious and unreasonable. Plaintiff contends that the REC "did not fairly consider the favorable New York Supreme Court decision" in the civil action or her testimony as to why she failed to disclose the pendency of the New York disciplinary action. She maintains that "there is not substantial evidence supporting a finding of dishonesty, unworthiness or incompetence" and that "[i]t was improper for the Commission to adopt the New York finding."

At oral argument before us, Nicklus's counsel argued that affirming the REC's decision would amount to punishing Nicklus further for an incident that occurred in 1994. We disagree. The focus of the REC's action was Nicklus's failure to disclose the pendency of the New York appeal on the application for renewal of her New Jersey licenses - not the 1994 incident.

Our scope of review of administrative decisions is narrowly circumscribed. In re Taylor, 158 N.J. 644, 656 (1999). Our role is to determine "'whether the findings made could reasonably have been reached on sufficient credible evidence present in the record' considering 'the proofs as a whole'" and "with due regard to the opportunity of the one who heard the witnesses to judge of their credibility." Ibid. (quoting Close v. Kordulak Bros., 44 N.J. 589, 599 (1965)). We "may not 'engage in an independent assessment of the evidence . . . .'" In re Taylor, supra, 158 N.J. at 656 (quoting State v. Locurto, 157 N.J. 463, 471 (1999)). We accord a strong presumption of reasonableness, Smith v. Ricci, 89 N.J. 514, 525 (1982), and give great deference to administrative decisions. State v. Johnson, 42 N.J. 146, 159 (1964). We do not, however, simply rubber stamp the agency's decision. Henry v. Rahway State Prison, 81 N.J. 571, 579-80 (1980). An administrative decision will be reversed only when it is found to be "arbitrary, capricious or unreasonable or it is not supported by substantial credible evidence in the record as a whole." Ibid.

We have carefully considered Nicklus's arguments in light of the applicable law and we are satisfied that there was sufficient, credible evidence to support the decision of the REC. R. 2:11-3(e)(1)(A). We affirm substantially for the reasons stated in the final order of determination rendered on September 1, 2006.

Affirmed.

20071128

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