In Re Denial of the Application for Licensure as a Real Estate Salesperson Submitted by Marta Cunha-Corcoran

• Court: New Jersey Superior Court Appellate Division
• Decided: July 16, 2024
• Docket: A-2488-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2488-22

IN RE DENIAL OF THE APPLICATION FOR LICENSURE AS A REAL ESTATE SALESPERSON SUBMITTED BY MARTA CUNHA-CORCORAN. _______________________

Submitted July 9, 2024 – Decided July 16, 2024

Before Judges Natali and Smith.

On appeal from the New Jersey Real Estate Commission, Department of Banking and Insurance.

Tonacchio, Spina & Compitello, attorneys for appellant Marta Cunha-Corcoran (Joseph Compitello, on the brief).

Matthew J. Platkin, Attorney General, attorney for respondent New Jersey Real Estate Commission (Sara M. Gregory, Assistant Attorney General, of counsel; Dakar Ross, Deputy Attorney General, on the brief).

PER CURIAM

Appellant Marta Cunha-Corcoran appeals from the March 13, 2023 final

decision of the New Jersey Real Estate Commission (Commission) denying her application for a real estate salesperson's license. The Commission determined

appellant failed to demonstrate the good moral character required under N.J.S.A.

45:15-9(a) of the New Jersey Real Estate License Act, N.J.S.A. 45:15-1 to -29-

5, because she made intentional misrepresentations in her licensure application,

and was previously convicted of theft by deception. The Commission also

precluded appellant from re-applying for a five-year period. We affirm.

I.

On July 17, 2017, appellant pled guilty to third-degree theft by deception

contrary to N.J.S.A. 2C:20-4. At her plea hearing, she admitted that between

July and November 2015, while employed as a licensed insurance producer, she

submitted seven false applications for life insurance policies and participated in

fraudulent interviews in order to ensure approval of the applications and to

improperly obtain commissions. She also admitted to appropriating the

applicants' personal information without their authorization.

Appellant was subsequently sentenced to a two-year non-custodial

probationary term and assessed appropriate penalties. She later entered a

consent order with the New Jersey Department of Banking and Insurance

(Department) wherein she admitted to submitting false applications,

impersonating the applicants, unlawfully accepting commissions, and failing to

A-2488-22 2 report her 2017 conviction to the Department. Based on those admissions,

appellant and the Department agreed her conduct violated both the New Jersey

Insurance Producer Licensing Act, N.J.S.A. 17:22A-26 to -48, and the New

Jersey Insurance Fraud Prevention Act, N.J.S.A. 17:33A-1 to -30. The

Department imposed appropriate fines, revoked appellant's producer's license,

and barred her from seeking reinstatement for five years.

Appellant subsequently passed the licensing exam to become a real estate

salesperson and applied for a real estate salesperson license. In her application,

appellant falsely stated she had never been "convicted of a crime, misdemeanor,

or disorderly persons offense in the state of New Jersey, any other state or by

the federal government." In a separate question, she also falsely responded she

never had a "professional license, certification or similar credential revoked,

suspended, surrendered in lieu of formal prosecution, or denied in New Jersey

or any other state." Appellant also inaccurately certified that her responses were

true, and she had informed the Commission of any prior license revocations or

convictions.

During a routine investigation of appellant's background, Commission

staff learned of her prior conviction. The Commission accordingly directed

appellant to submit additional documentation and after further investigation,

A-2488-22 3 denied her application. The Commission informed appellant that her prior

conviction rendered her ineligible for a real estate salesperson license, and she

also failed to establish good moral character as required under N.J.S.A. 45:15 -

9(a).

Appellant filed an administrative appeal of the Commission's decision.

The Commission conducted a plenary hearing where it considered the testimony

of an investigator and appellant. The Commission investigator detailed

appellant's criminal history, the subsequent enforcement action resulting in the

revocation of her insurance producer's license, and the entry of a money

judgment against appellant because she failed to satisfy the payment terms

detailed in the consent order. The investigator also detailed appellant's false

responses in her application.

For her part, appellant acknowledged she falsely responded to questions

in her application but explained she did so because she was "embarrassed" by

her prior conduct. She provided further detail regarding her personal

circumstances at the time she engaged in the criminal conduct at issue but

nevertheless admitted to accepting in excess of $6,000 in fraudulent

commissions, which she returned only after the fraud was discovered by

A-2488-22 4 authorities. Appellant also confirmed she was convicted of theft by deception

as a result of her actions.

In a unanimous vote, the Commission affirmed the denial of appellant's

application for a real estate salesperson license under N.J.S.A. 45:15-9(a). It

found that appellant failed to establish the "requisite honesty, trustworthiness,

character and integrity" for licensure, and concluded her criminal conduct and

subsequent conviction disqualified her for a salesperson license under N.J.S.A.

45:1-21.5, and the Rehabilitated Convicted Offenders Act (RCOA), N.J.S.A.

2A:168A-2, as her actions directly related to her capacity and fitness to serve as

a real estate salesperson.

The Commission also precluded appellant from reapplying for a license

for five years, "when additional evidence of rehabilitation may be considered."

It based its decision on numerous aggravating factors, including her conviction

and the underlying facts in which she used her clients' confidential information,

data which would be available to her as a real estate salesperson, as well as her

failure to show contrition.

The Commission also characterized appellant's testimony as

"disingenuous." On this point, the Commission specifically noted appellant

failed to demonstrate "self-awareness," as she: 1) refused to concede her prior

A-2488-22 5 conduct was fraudulent; 2) characterized her receipt of fraudulent commissions

as "nothing major"; 3) claimed her fraudulent conduct was really an effort to

assist her clients with obtaining approvals of their policy applications and

translate for non-English speaking clients; and 4) refuted the admissions made

in her plea allocution.

Finally, the Commission noted appellant admitted she lied intentionally in

her application and characterized her explanation that she was "embarrassed" as

unacceptable. It also found she failed to engage in any rehabilitative efforts and

noted she failed to pay in full the assessed civil fine required by the consent

order.

II.

In her only point before us, appellant argues the sanctions imposed by the

Commission are so disproportionate to the offense, in light of the circumstances,

as to shock one's sense of fairness. Specifically, she relies on In re License

Issued to Zahl, 186 N.J. 341, 354 (2006), and contends the Commission's

decision barring her from applying for licensure for five years is "not

warranted."

Appellant acknowledges she "intentionally lied" when she failed to

disclose her criminal conviction for theft by deception and the revocation of her

A-2488-22 6 insurance producer's license to the Commission. She argues, however, as she

"explained at her hearing she was embarrassed" to provide such information and

"felt that the . . . Commission already had knowledge of these events" as the

Real Estate Commission was under the purview of the Department, the entity

that revoked her insurance producer's license.

Additionally, appellant explains she was aware the Commission would

conduct a background investigation and discover her conviction and license

revocation, and, as such, contends she was "not attempting to deceive the

commission or be untruthful as she [k]new these issues would come to light."

Appellant argues, under such circumstances, her behavior does not warrant a

five-year application ban. We are not persuaded by any of these arguments.

"The scope of review in a case involving an appeal from the New Jersey

Real Estate Commission is the same as that for other administrative agencies

. . . ." Morgan v. Saslaff, 123 N.J. Super. 35, 38 (App. Div. 1973). "[We] have

'a limited role' in the review of [agency] decisions." In re Stallworth, 208 N.J.

182, 194 (2011) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 579

(1980)). "[A] 'strong presumption of reasonableness attaches to the actions of

the administrative agencies.'" Zilberberg v. Bd. of Trs., Tchrs' Pension &

Annuity Fund, 468 N.J. Super. 504, 509 (App. Div. 2021) (alteration in original)

A-2488-22 7 (quoting In re Carroll, 339 N.J. Super. 429, 437 (App. Div. 2001)). We decline

to disturb an agency's decision "unless there is a clear showing that it is arbitrary,

capricious, or unreasonable, or that it lacks fair support in the record." Seago v.

Bd. of Trs., Tchrs' Pension & Annuity Fund, 257 N.J. 381, 391 (2024) (quoting

Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm'n, 234 N.J. 150, 157

(2018)).

In determining whether agency action is arbitrary, capricious, or

unreasonable, we must examine:

(1) whether the agency's action violates express or implied legislative policies, that is, did the agency follow the law; (2) whether the record contains substantial evidence to support the findings on which the agency based its action; and (3) whether in applying the legislative policies to the facts, the agency clearly erred in reaching a conclusion that could not reasonably have been made on a showing of the relevant factors.

[Stallworth, 208 N.J. at 194 (quoting In re Carter, 191 N.J. 474, 482-83 (2007)).]

We "may not substitute [our] own judgment for the agency's, even though

[we] might have reached a different result." Ibid. (quoting Carter, 191 N.J. at

483). "This is particularly true when the issue under review is directed to the

agency's special 'expertise and superior knowledge of a particular field.'" Id. at

195 (quoting In re Herrmann, 192 N.J. 19, 28 (2007)). Furthermore, it is well-

A-2488-22 8 settled that "an 'agency's interpretation of statutes and regulations within its

implementing and enforcing responsibility is ordinarily entitled to ' deference."

In re Protest of Contract Award for Project A1150-08, 466 N.J. Super. 244, 259

(App. Div. 2021) (quoting E.S v. Div. of Med. Assistance & Health Servs., 412

N.J. Super. 340, 355 (App. Div. 2010)).

Nevertheless, "we are not bound by the agency's legal opinions." N.J.

Div. of Child Prot. & Permanency v. V.E., 448 N.J. Super. 374, 391 (App. Div.

2017) (quoting Levine v. State Dep't of Transp., 338 N.J. Super. 28, 32 (App.

Div. 2001)). "Statutory and regulatory construction is a purely legal issue

subject to de novo review." A.B. v. Div. of Med. Assistance & Health Servs.,

407 N.J. Super. 330, 340 (App. Div. 2009).

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. 1987). Correspondingly, we

have limited "review of an agency's choice of sanction." Zimmerman v.

Diviney, 477 N.J. Super. 1, 21 (App. Div. 2023) (quoting Zahl, 186 N.J. at 353).

The appropriate test for reversal is "whether such punishment is so

disproportionate to the offense, in light of all the circumstances, as to be

A-2488-22 9 shocking to one's sense of fairness." Ibid. (quoting In re Polk, 90 N.J. 550, 578

(1982)).

Real estate licensees are "fiduciaries" and the Real Estate License Act

"serves a strong public policy of the State." Graham v. N.J. Real Est. Comm'n,

217 N.J. Super. 130, 138 (App. Div. 1987). N.J.S.A. 45:15-17(e) was designed

"to create and maintain a commission to scrutinize in general and with care the

character, competency, and integrity of license applicants and license holders to

the end that in the interest of the public welfare, incompetent, unworthy and

unscrupulous persons would be excluded from the real estate brokerage

business." Div. of N. J. Real Est. Comm'n v. Ponsi, 39 N.J. Super. 526, 532-

533 (App. Div. 1956). Further, the Commission is charged "with the high

responsibility of maintaining ethical standards among real estate brokers and

sales[people]," Goodley v. N.J. Real Est. 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 Pipes, 329 N.J. Super. 391, 397

(App. Div. 2000).

A real estate licensee is subject to suspension, revocation, or probation for

"[a]ny conduct which demonstrates unworthiness, incompetency, bad faith, or

dishonesty." N.J.S.A. 45:15-17(e). Similarly, the Commission "may, in its

A-2488-22 10 discretion, refuse to grant or reinstate any license upon sufficient cause being

shown." N.J.S.A. 45:15-15.

Under N.J.S.A. 45:1-21.5, a state board of registration and examination

such as the Commission cannot disqualify an applicant based upon a criminal

conviction "unless the crime or offense has a direct or substantial relationship

to the activity regulated by the entity or is of a nature such that . . . licensure of

the person would be inconsistent with the public’s health, safety, or welfare ."

N.J.S.A. 45:1-21.5. In making such a determination, the Commission must

consider the following factors: (1) "the nature and seriousness of the crime" and

the time elapsed since its commission; (2) "the relationship of the crime . . . to

the purposes of regulating the profession or occupation regulated by the entity ";

(3) "any evidence of rehabilitation of the person" since the conviction; and (4)

"the relationship of the crime . . . to the ability, capacity, and fitness required to

perform the duties and discharge the responsibilities of the profession or

occupation regulated by the entity." N.J.S.A. 45:1-21.5(a). The RCOA, which

applies more generally to all "State, county or municipal department[s],

board[s], officer[s] or agenc[ies]," largely tracks the requirements of this

provision. N.J.S.A. 2A:168A-2.

A-2488-22 11 Applying the above standards, we discern no reason to reverse the

Commission's conclusion appellant lacked the moral character to hold a real

estate license and barring her reapplication for five years. The Commission

properly considered the evidence before it and made the appropriate findings

required by N.J.S.A. 45:15-15 in its decision. Its decision to prohibit appellant

from seeking licensure for five years was not unreasonable as it was based on

the unrefuted facts in the record establishing appellant engaged in fraudulent

conduct for pecuniary gain and used her client's confidential information

without their authorization, resulting in her theft conviction.

The Commission also found appellant lacked contrition based on her

intentional misrepresentations on her application regarding her past conduct and

her testimony before the Commission where she minimized her prior actions.

We are satisfied there is sufficient credible evidence in the record as a whole

supporting the Commission's decision, Rule 2:11-3(e)(1)(D), and the decision is

not arbitrary, capricious, or unreasonable.

Affirmed.

A-2488-22 12