Zumbach v. Board of Real Estate Appraisers
15 A.3d 741
Me.2011Background
- Zumbach held trainee appraiser licenses in NH and MA but not in Maine; he obtained a Maine trainee license in 2006.
- In March 2006 Zumbach, with a Maine-certified supervisor, issued an appraisal in Arundel, Maine.
- The Board opened a complaint in March 2007; a consent agreement was negotiated and executed in Feb. 2008, containing admission of misconduct, a reprimand, and permanent revocation of his Maine license.
- In Feb. 2009 Zumbach sought to reopen the matter, arguing lack of Board jurisdiction and arbitrariness of the consent agreement; the Board denied the request.
- Zumbach challenged the Board’s decision in Superior Court under M.R. Civ. P. 80C and sought a declaratory judgment; the court affirmed the Board’s action in 2010.
- The governing statutes authorize the Board to discipline and to execute consent agreements that resolve complaints, with modification or enforcement through the Superior Court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Board had authority to enter a consent agreement. | Zumbach contends the Board lacked authority to sanction pre-license acts. | Board argues authority exists under 10 M.R.S. 8003(5-A)(C) to resolve investigations via consent agreements. | Board had authority to enter and enforce the consent agreement. |
| Whether the Board could modify or reopen a consent agreement after execution. | Zumbach seeks modification or reconsideration of the consent agreement. | Board disputes inherent or statutory authority to modify a final consent agreement; consent is enforceable only by Superior Court. | Board did not abuse discretion in denying modification; no statutory right to reopen final consent. |
| Whether the consent agreement can sanction acts occurring before licensure. | Zumbach challenges sanctions for pre-license conduct. | Consent agreement covers remedies obtainable by law and can include longstanding disciplinary measures. | Consent agreement properly sanctioned pre-license conduct; within Board’s supervisory authority. |
Key Cases Cited
- Mulready v. Bd. of Real Estate Appraisers, 2009 ME 135 (Me. 2009) (deference to agency interpretation; standard for reviewing Board decisions under 80C)
- Clark v. State Emps. Appeals Bd., 363 A.2d 735 (Me. 1976) (no inherent or statutory authority to reopen final decisions)