Opinion
DOCKET NO. A-1192-12T1
2013-10-07
NEW JERSEY REAL ESTATE COMMISSION, Respondent, v. THOMAS J. BERITELLI, licensed New Jersey real estate broker salesperson, Appellant.
Joseph P. Rem, Jr., argued the cause for appellant (Rem Zeller Law Group, attorneys; Mr. Rem, of counsel and on the brief; Lisa R. LeBoeuf, on the brief). Christine Machnowsky, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Machnowsky, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Maven and Hoffman.
On appeal from the New Jersey Real Estate Commission.
Joseph P. Rem, Jr., argued the cause for appellant (Rem Zeller Law Group, attorneys; Mr. Rem, of counsel and on the brief; Lisa R. LeBoeuf, on the brief).
Christine Machnowsky, Deputy Attorney General, argued the cause for respondent (John J. Hoffman, Acting Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Machnowsky, on the brief). PER CURIAM
Thomas Beritelli appeals from the October 5, 2012 final order of the New Jersey Real Estate Commission (Commission) revoking his broker license for four years. For the following reasons, we affirm the license revocation.
On February 22, 2011, appellant entered a guilty plea to count one of an indictment charging him with third-degree endangering the welfare of a child, N.J.S.A. 2C:24-4a. Appellant admitted to possessing six child pornographic images, which he obtained from the internet and stored on his computer. On May, 16, 2011, the Law Division judge sentenced appellant to a suspended three-year prison term, parole supervision for life, and ordered him to register as a Megan's Law offender.
Upon receiving a copy of appellant's judgment of conviction, the Commission filed an order to show cause charging appellant with violating N.J.S.A. 45:15-17e. ("Any conduct which demonstrates unworthiness, incompetency, bad faith, or dishonesty."). Appellant filed an answer admitting his conviction but denying that it demonstrated conduct proscribed under the statute.
On November 15, 2011, the Commission conducted a hearing where appellant testified and submitted sixty-five character-reference letters. The regulatory officer prosecuting the case for the Commission recommended a concurrent license suspension and separation from the business for one year, followed by two years probation. At that time, the Commission tabled the matter in order to consult with its counsel. On March 20, 2012, the Commission issued an oral decision finding that appellant violated N.J.S.A. 45:15-17e, and suspending his license for four years.
On October 5, 2012, the Commission issued its final order, accompanied by a thirteen-page decision setting forth the Commission's findings of fact and conclusions of law. The Commission pointed to appellant's admitted possession of child pornography as demonstrating "unworthiness because this conduct displayed a lack of those ethical qualities that befit the vocation." The Commission evaluated and considered the factors listed in the Rehabilitated Convicted Offenders Act, N.J.S.A. 2A:168A-1 to -16 (RCOA). Accordingly, the Commission weighed appellant's rehabilitative progress and previous unblemished history against the seriousness of his criminal conduct, the risk that such conduct would pose to real estate clients, the fact the criminal offense was recently committed, appellant's age when he committed the crime (fifty-six years old), and the lack of social factors contributing to the conduct. N.J.S.A. 2A:1698-2. After balancing these factors, the Commission determined a four-year revocation was appropriate.
On appeal, appellant argues that the Commission's decision was arbitrary and unsupported by sufficient, credible evidence. We disagree.
The Commission is charged "with the high responsibility of maintaining ethical standards among real estate brokers and salesmen," Goodley v. N.J. Real Estate Comm'n, 29 N.J. Super. 178, 182 (App. Div. 1954), as well as protecting the "public from fraud, misinterpretation, incompetence and unethical practices." In re Appeal of Pipes, 329 N.J. Super. 391, 397 (App. Div.), certif. denied, 165 N.J. 487 (2000). Our standard of review of the Commission's final decisions is well settled. We will sustain the Commission's findings if supported by "sufficient credible evidence." See R. 2:11-3(e)(1)(D); Maple Hill Farms, Inc. v. Div. of N.J. Real Estate Comm'n, 67 N.J. Super. 223, 226 (App. Div. 1961). When the Commission's conclusions are supported by adequate proof, we will not supplant the agency by weighing the evidence anew, determining credibility of witnesses, or drawing our own inferences and conclusions from the evidence. Id. at 226-27.
Moreover, an agency has "broad discretion in determining the sanctions to be imposed for a violation of the legislation it is charged with administering." In re Scioscia, 216 N.J. Super. 644, 660 (App. Div.), certif. denied, 107 N.J. 652 (1987). Correspondingly, we have limited "review of an agency's choice of sanction." In re License Issued to Zahl, 186 N.J. 341, 353 (2006). The appropriate test for reversal is "whether such punishment is so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." Zahl, supra, 186 N.J. at 354 (internal quotation marks and citation omitted).
Measured by this standard, we find no abuse of discretion in the four-year license revocation decision. We note that the penalty imposed here is consistent with other disciplinary sanctions imposed by the Commission for similar conduct. See N.J. Real Estate Comm'n v. Dellas, Final Order of Determination, Docket No. CAP-06-15 (April 1, 2008) (revoking salesperson's license for ten years for conviction of the same criminal offense as defendant); N.J. Real Estate Comm'n v. Howard, Final Order of Determination, Docket No. MER-10-042 (January 13, 2012) (revoking salesperson's license for five years for conviction of second-degree endangering the welfare of a child.).
After carefully reviewing the record, we are satisfied that the Commission properly analyzed all relevant factors and appellant failed to provide any convincing argument to disturb the result. As the Commission specifically noted in its final order, "Real estate sales persons have access to consumers' homes without supervision, and it is important that any children of real estate consumers are safeguarded from criminal conduct by the Commission's licensees." The Megan's Law restrictions imposed by the court reinforce this point. Moreover, the Commission appropriately considered that appellant's crime involved conduct that endangers children, which conduct had only come to light the year before.
Because a licensee bears the substantial burden to set aside a sanction, we will not set aside the punishment unless it is arbitrary or capricious, In re Scioscia, supra, 216 N.J. Super. at 660, or the penalty shocks one's "sense of fairness." In re Herrmann, 192 N.J. 19, 29 (2007) (citation and internal quotation marks omitted). In light of the serious criminal offense appellant committed, the sanctions imposed are neither disproportionate nor shocking.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION