On appeal from the New Jersey Real Estate Commission, Department of Banking and Insurance, Docket No. 05-011.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Parrillo and S.L. Reisner.
This is an appeal of the final order of respondent New Jersey Real Estate Commission (NJREC) revoking appellant Muhammad A. Nasir's real estate salesperson's license for a term of five years for violating the New Jersey Real Estate License Act, N.J.S.A. 45:15-1 to -42 (Real Estate License Act). This matter follows two earlier actions which the State brought against appellant, including a civil action for insurance fraud and an agency action to revoke his insurance producer license. For the following reasons, we affirm.
Some background is in order. In 1982, appellant, then thirty-three years old, obtained a New York insurance producer license while working for Northwestern Mutual Insurance Company (Northwestern Mutual), where he continued working for the next fourteen years, until May 20, 1996. During this time, appellant also became a licensed New Jersey insurance producer. In 1986, he obtained a New Jersey real estate salesperson's license and worked in real estate part-time until 1998, when he started full-time. On January 31, 2002, appellant's New Jersey insurance producer license expired and he chose not to renew it.
Meanwhile, on April 27, 1996, appellant had submitted to Northwestern Mutual an application for disability insurance including a group disability insurance medical history statement answering "no" to all questions regarding his medical history for the prior five years. He did not disclose, however, that he had a pre-existing herniated disk. After obtaining the insurance, appellant underwent surgery for his back problem and then attempted to collect disability insurance. Specifically, on July 3, 1997, appellant applied for disability benefits from Northwestern Mutual claiming that on May 7, 1996, he had received a serious injury to his cervical spine. Upon investigation, his employer discovered the deception, denied his claim, and reported the incident to the New Jersey Office of the Insurance Fraud Prosecutor.
On January 3, 2000, the State filed a civil complaint alleging appellant committed insurance fraud in violation of the New Jersey Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1 to -30 (Fraud Act), by making false statements in support of his application for disability insurance (count one) and on a disability claim (count two). Following a bench trial, appellant was found liable and assessed a total of $43,710 under the Fraud Act, comprising $7,500 in penalties and $36,210 in counsel fees to the State. He appealed those assessments, and we affirmed in a reported opinion. State v. Nasir, 355 N.J. Super. 96, 100 (App. Div. 2002), certif. denied, 175 N.J. 549 (2003).
Following the insurance fraud prosecution, on September 3, 2002, the Commissioner of the Department of Banking and Insurance (DOBI) filed a separate administrative prosecution seeking to penalize appellant in his capacity as an insurance producer and to revoke his license. This prosecution was filed under the authority of N.J.S.A. 17:22A-17(a)(4) and (20) (Producer Licensing Act), which authorizes the Commissioner to regulate and license insurance producers. The administrative complaint alleged essentially the same facts as the Law Division prosecution, plus allegations that appellant was unworthy of licensure due to his fraudulent actions and that he had wrongfully failed to pay the penalties imposed by the Law Division, thus further demonstrating his "unworthiness" to be a licensed producer.
The matter was transmitted to the Office of Administrative Law, where an administrative law judge granted the Attorney General's motion for summary decision and recommended license revocation, plus $35,000 in penalties and $700 in costs. Appellant filed exceptions, claiming that he should not be penalized twice for the same conduct. The Attorney General countered that appellant was properly being penalized for violating two different statutes, but recommended a $10,000 reduction in the penalty.
The Commissioner concluded that the Fraud Act and the Producer Licensing Act served "distinct remedial goals," justifying the imposition of separate penalties for violations of each statute. He revoked appellant's license,*fn1 although appellant may reapply for licensure after five years. He also imposed a reduced penalty of $17,000 conditioned on appellant providing proof that he paid the Law Division penalties.*fn2 The Commissioner based the amount of the penalty on his analysis of only three of the seven factors set forth in Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 132 (1987), and incorrectly characterized the sixth factor as the "existence of criminal or unconscionable conduct." The Commissioner gave no specific consideration to the monetary fines previously imposed in the Law Division nor to the totality of the penalties being imposed on appellant, including the loss of his livelihood as an insurance producer and a separate administrative action to suspend his realtor's license.
Appellant appealed the Commissioner's imposition of the $17,000 penalty and costs, but not the license revocation. In an unpublished opinion, we concluded that the Commissioner had the authority to impose monetary penalties for appellant's violation of the Producer Licensing Act in addition to those previously imposed for violations of the Fraud Prevention Act, but we remanded the matter to the Commissioner for reconsideration of the amount of the penalty. Comm'r of Banking & Ins. v. Nasir, No. A-6060-04T1 (App. Div. Jan. 30, 2007) (slip op. at 2, 6). In doing so, we directed the Commissioner to "more specifically acknowledge and evaluate the magnitude of its proposed action, as well as analyze the remaining Kimmelman factors other than factors one and four." Id. at 8.*fn3
In the interim, on January 27, 2005, NJREC filed an order to show cause in the instant action, alleging that appellant violated the Real Estate License Act, specifically: (1) N.J.S.A. 45:15-17(e), by committing insurance fraud which demonstrated unworthiness, bad faith and dishonesty; (2) N.J.S.A. 45:15-17(l), because his underlying actions constituted fraud or dishonest dealing; and (3) N.J.S.A. 45:15-9, because his actions demonstrated that he does not possess the requisite good moral character, honesty, integrity and trustworthiness that a licensee must possess.
At the ensuing hearing, appellant and two character witnesses testified on his behalf. According to appellant, in his long career as an insurance producer, no complaints were ever filed against him. One complaint was filed against him under his real estate salesperson license when a seller accused him of prematurely giving a ...