May 24, 2019

Colorado Court of Appeals: Colorado Real Estate Commission May Impose Sanction of License Revocation for Attempted Crimes as well as Convictions

The Colorado Court of Appeals issued its opinion in Colorado Real Estate Comm’n v. Bartlett on June 23, 2011.

Revocation of Real Estate License—Jurisdiction.

Respondent Alfred Bartlett appealed the final agency order of the Colorado Real Estate Commission (Commission) revoking his real estate broker’s license, on the grounds that the Commission lacked authority to impose discipline for attempted crimes and failed to properly address evidence of his rehabilitation. The order was affirmed.

An administrative law judge (ALJ) found that Bartlett communicated for several months via the Internet with an undercover detective from the Colorado Springs Police Department who was posing as a 13-year-old girl named Tiffany. After stating his desire to have sexual contact with the girl, Bartlett arranged a meeting, requesting it be kept secret from her mother. Bartlett was arrested at the agreed location, after making contact with a person he believed to be Tiffany. He pleaded guilty to attempted sexual assault on a child, a class 5 felony, and was sentenced to five years of sex offender intensive supervision probation, scheduled for completion in September 2011. Bartlett did not notify the Commission of his conviction until approximately eight months after he entered his guilty plea, despite applying for a renewal of his broker’s license in the interim.

The Commission filed a notice of charges, alleging respondent was subject to discipline based on his conviction and his failure to immediately report it. The ALJ found Bartlett guilty and, after extensive briefing and oral arguments, the Commission accepted the ALJ’s decision and revoked Bartlett’s real estate broker’s license.

On appeal, Bartlett argued that the Commission lacked subject matter jurisdiction to revoke his license, because he was convicted of an attempt and not a completed crime. Specifically, Bartlett argued that CRS §12-61-113(1)(m) empowers the Commission to impose sanctions for convictions only under the enumerated statutes, and that CRS §18-2-101, prohibiting attempts, is not on the list. The Court of Appeals rejected this argument based on the plain language of the statute.

Bartlett also argued that the Commission (1) was required to consider evidence concerning his rehabilitation; and (2) had the burden to prove the absence of rehabilitation and failed to meet that burden. The Commission agreed that it was required to consider rehabilitation evidence but disputed that it bears the burden of proof on that issue. The Court held that the Commission bears the burden of proof, but met that burden in this case.

Finally, Bartlett argued that the Commission’s sanction of revocation was arbitrary and capricious. The Court disagreed, finding clear support in the record for the Commission’s sanction.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on June 23, 2011, can be found here.

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