Herzberg v. David

555 P.2d 677, 27 Ariz. App. 418, 1976 Ariz. App. LEXIS 629

• Court: Court of Appeals of Arizona
• Decided: July 20, 1976
• Docket: 1 CA-CIV 3049
• Status: Published

Opinions

OPINION

HATHAWAY, Judge.

The Real Estate Department revoked appellant’s salesman’s license. Appellant did not seek a rehearing as provided for by R4 — 28-19 (N) of the Administrative Rules and Regulations of the State of Arizona Real Estate Commission, but sought superi- or court review. The superior court granted appellee’s motion to dismiss.

A.R.S. Sec. 32-2159(A) provides:

“The decision of the commissioner in denying, suspending or revoking a license or other order or decision is subject to review. The provisions of title 12, chapter 7, article 6, shall apply to and govern every action to review judicially a final decision of the commissioner.” (Footnote omitted)

A.R.S. Sec. 12-901(2) (under Title 12, Chapter 7, Article 6) in pertinent part provides :

“2. ‘Administrative decision’ or ‘decision’ means any decision, order or determination of an administrative agency rendered in a case which affects the legal rights, duties or privileges of persons and which terminates the proceeding before the administrative agency. In all cases in which a statute or a rule of the administrative agency requires or permits an application for a rehearing or other method of administrative review, and an application for a rehearing or review is made, no administrative decision of such agency is final as to the party applying therefor until the rehearing or review is denied, or the decision on rehearing or review is rendered.”

And A.R.S. Sec. 12-902(B) provides:

“Unless review is sought of an administrative decision within the time and in the manner provided in this article, the parties to the proceeding before the administrative agency shall be barred from obtaining judicial review of such decision. If under the terms of the law governing procedure before an agency an administrative decision has become final because of failure to file any document in the nature of an objection, protest, petition for hearing or application for administrative review within the time allowed by the law, the decision shall not be subject to judicial review under the provisions of this article except for the purpose of questioning the jurisdiction of the administrative agency over the person or subject matter.”

When A.R.S. Secs. 12-901(2) and 12-902(B) are read together, the legislative intent is clear. If a rehearing procedure is provided, either by statute or rule, a party aggrieved by an administrative decision must avail himself of such administrative review remedy as a condition precedent to judicial review. See Roer v. Superior Court, 4 Ariz.App. 46, 417 P.2d 559 (1966).

Rule R4-28-19(N) provides for rehearing of a decision of the Real Estate Commission. The purpose of such rehear-ing provision is to afford the Commission the first opportunity to correct its own mistakes, thereby eliminating or minimizing subsequent appeals and relitigation". See Brooks v. Industrial Commission, 24 Ariz.App. 395, 539 P.2d 199 (1975); 73 C. J.S. Public Administative Bodies and Procedure § 156a (1951).

Appellant did not avail himself of the right to administrative review and thereby the order revoking his license became final. Since he failed to make an “application for administrative review” which a Rule R4-28-19(N) rehearing is, judicial review¹ was foreclosed. A.R.S. Sec. 12-902.

Affirmed.

HOWARD, C. J., and KRUCKER, J., concur.

NOTE: This cause was decided by the Judges of Division Two as authorized by A.R.S. Sec. 12-120(E).

1 . Appellant did not challenge the Real Estate Commission’s lack of jurisdiction.