Georgia Real Estate Commission Et Al. v. Horne., 141 Ga. App. 226, 233 S.E.2d 16 (1977)
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Gambrell, Russell, Killorin & Forbes, Harold L. Russell, James H. Bratton, Jr., Frederick G. Boynton, for appellee.Arthur K. Bolton, Attorney General, Robert S. Stubbs, II, Chief Deputy Attorney General, Don A. Langham, Deputy Attorney General, Michael J. Bowers, Senior Assistant Attorney General, J. Michael Walls, Staff Assistant Attorney General, for appellants.
Mr. Horne, a real estate broker, was charged by the Georgia Real Estate Commission with denying or withholding from another because of race a housing accommodation in violation of Code Ann. 84-1421. The original hearing officer found Mr. Horne to be guilty of discrimination and recommended that his license be suspended for one year. The full real estate commission reviewed the hearing officer's decision, adopted his findings and conclusions but ordered a total revocation of Mr. Horne's license rather than a suspension. Mr. Horne appealed this revocation to the Superior Court of DeKalb County. Code Ann. 3A-120 (b). The superior court reversed and remanded the commission's decision of revocation and the commission appeals.
DEEN, Presiding Judge.
1. Racial discrimination in housing is a serious problem which demands rectification; to this end Code Ann. 84-1421 gives the real estate commission the power to suspend or revoke a realtor's license if he so discriminates. However, where the state confers a license to engage in a profession, the license becomes a valuable right which cannot be denied or abridged without due notice and a fair and impartial hearing before an unbiased tribunal. Leakey v. Georgia Real Estate Commission,
2. The superior court based its reversal in part on an alleged procedural defect in Mr. Horne's hearing -- that the commission's deliberations were in public. The court did not in its final order rule the "Sunshine Law," (Code Ann. 40-3301 et seq.) to be unconstitutional; this court has no jurisdiction to do so. The superior court may reverse the commission's decision if it were in "violation of constitutional or statutory provisions" or "made upon unlawful procedure." Code Ann. 3A-120 (h) (1), (3). The commission's public deliberations were not only made in full compliance with the law, but would have been nugatory had they been conducted otherwise. Code Ann. 40-3301. In this regard, the superior court was in error.
3. Code Ann. 3A-114 (5) provides for a procedure whereby the commission may select and appoint a hearing officer to hear a contested case; such a procedure was employed in Mr. Horne's case. The hearing officer, after determining that Mr. Horne had indeed discriminated against the Robinsons, presented his "Recommended Action"; it was his decision that there were mitigating circumstances in the case ("temporary lapse in good judgment ignited by an explosive situation," "difficult situation," licensed for fourteen years with no previous complaint) and recommended a one-year suspension of the license. While the record is confusing on this point, it seems that the hearing officer's decision and "Recommended Action" was the "initial decision" in the matter and in the absence of Mr. Horne's application to the commission for review or the commission's decision to review on its own motion, such decision would have become the final disposition of the case. Code Ann. 3A-118 (a). Here, however, the commission on its own motion ordered a review of the hearing officer's decision; as the result, the commission accepted briefs and heard oral argument. The commission decided to adopt the hearing officer's findings of fact and conclusions of law but rejected the "recommended" suspension and instead ordered the revocation of Mr. Horne's license.
The Superior Court of DeKalb County found that the full commission's failure to explain why it imposed the harsher sanction of revocation instead of the recommended one year's suspension was error and ordered the case remanded for this reason. The commission urges that having ordered a review of the hearing officer's decision within the 30-day limit, it has "all the powers it would have in making the initial decision," Code Ann. 3A-118 (a), including the right to revoke as well as suspend Mr. Horne's license, Code Ann. 84-1421. "Nothing in this Chapter [3A-1] shall be held to diminish the constitutional rights of any person . . ." Code Ann. 3A-122. The United States Supreme Court has recently had occasion to construe due process as it relates to the imposition of a harsher sentence upon retrial of a criminal case after a successful appeal of the defendant's original conviction. North Carolina v. Pearce, 395 U. S. 711 (89 SC 2072, 23 LE2d 656); Colten v. Kentucky, 407 U. S. 104 (92 SC 1953, 32 LE2d 584); Chaffin v. Stynchcombe, 412 U. S. 17 (93 SC 1977, 36 LE2d 714). While it is true that these cases are criminal and not civil, the Due Process Clause of the Fourteenth Amendment requires the state to afford any person due process before depriving him of his property as well as his life or liberty; since a license to engage in a profession is a property right, the Supreme Court's pronouncements on due process are authority for analyzing the case sub judice.
The Supreme Court in Pearce makes it clear that due process of law requires that vindictiveness must play no part in the resentencing of one who has successfully appealed his original conviction; "[i]n order to assure the absence of such a motivation [vindictiveness], we have concluded that whenever a judge imposes a more severe sentence upon a defendant after a new trial, the reasons for his doing so must affirmatively appear . . . [a]nd the factual data upon which the increased sentence is based must be made part of the record, so that the constitutional legitimacy of the increased sentence may be fully reviewed on appeal." North Carolina v. Pearce, 395 U. S. 711, 726, supra. Subsequent decisions have illustrated that it is the possibility of vindictiveness in an appellate procedure and in resentencing that violates due process and not merely the possibility that a harsher sentence may be imposed. Colten v. Kentucky, 407 U. S. 104, supra (holding that the possibility of vindictiveness does not inhere in a two-tier system of appeals with the right to a de novo hearing after conviction in an inferior court); Chaffin v. Stynchcombe, 412 U. S. 17, supra (holding that the possibility of vindictiveness does not inhere in jury sentencing if the jury is unaware of the defendant's original sentence).
Turning to Code Ann. 3A-118 (a) an aggrieved licensee or the commission may seek within 30 days a review of the hearing officer's decision and disposition of the case; if neither the licensee nor the commission seeks review within that time, the hearing officer's decision becomes final. The commission's role after it elects to proceed initially with the hearing officer "deciding" the case, is essentially to serve an appellate function, in which it "reviews" the hearing officer's decision. This procedure is unique in several respects: It is "two-tier" but the "hearing" before the commission is for review of the hearing officer's decision and not for a de novo adjudication; while it is essentially appellate, not only may an aggrieved licensee petition for review, the commission may order a review on its own motion; since the commission on review has "all the powers it would have in making the initial decision," there is the possibility for the imposition of a harsher sentence on a licensee after "review." The crucial question, as we view it, is whether the possibility of vindictiveness inheres in this procedure such that due process requires the commission to explain its decision to impose a stricter sanction on a licensee than that which would have been imposed had a "review" not been made.
We think that it does. There are no guidelines or limits on the commission when it "reviews" a hearing officer's decision and determines to impose a harsher sanction -- the commission does not sit de novo, as was the case in Colten, nor does it sit without knowledge of the original sanction which would have been imposed absent a "review," as was the case in Chaffin. The commission does not review the decision in a vacuum; in this case it adopted the hearing officer's findings, of fact and conclusions of law but "specifically rejected" without explanation his finding of mitigating circumstances and "recommended" suspension and instead revoked the license. ". . . [A]dministrative agencies must explain the grounds for their rejection of an administrative judge's disposition of a case." Brennan v. Gilles & Cotting, Inc., 504 F2d 1255, 1264 (4th Cir. 1974). Since the hearing officer based his decision to suspend for one year, which would have been "final" in the absence of "review" by the commission, on mitigating circumstances, the commission must explain its rationale for rejecting his disposition. Indeed, the original vote on Mr. Horne's license by the commission was two for revocation and one for suspension; it was only after the question of a quorum was raised that the vote was changed, again without explanation, to reflect a unanimous decision by those participating that the license be revoked.
the reasons for so doing must affirmatively appear as part of the record. Otherwise the procedure of "review" under Code Ann. 3A-118 (a) would have a "chilling" effect on a licensee's decision to exercise his right to review -- what licensee whose license has been suspended by a hearing officer would risk revocation without explanation by the commission -- and opens up the commission to charges of personal or "public pressured" vindictiveness against a licensee when it chooses to "review" a decision of suspension on its own motion and without explanation imposes revocation.
Nor do we believe our decision, that explanation is necessary to insure due process be afforded to a licensee, has the effect of negating the language of Code Ann. 3A-118 (a) that "[o]n review from the initial decision of such representative the agency shall have all the powers it would have in making the initial . . ." Our decision does not prohibit the commission from revoking the license of one whose hearing officer has only "recommended" suspension; but when its decision is to do so, the commission must give its reasons for choosing to impose the stricter sanction.
4. The order of the superior court concludes: "The Commission has not explained why it has adopted a harsher policy in the case of respondent Horne than that imposed upon others found guilty of infractions not involving moral turpitude, and more rigorous than that imposed by the Hearing Officer. Its failure to give such explanation is error and requires that the case be remanded." The judge then reversed and set aside the order of the commission appealed from and remanded the case for further action. This judgment is affirmed, with direction that the commission enter a new order herein, and, should it ultimately decide to increase the sanctions imposed in the first instance, that it clearly set out adequate legal reasons for this action.
1977
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