Opinion by
Mr. Justice O’Brien,
Appellant is a licensed real estate broker, having been so licensed since 1936. The facts in this case are as follows:
An investigator employed on behalf of the State Real Estate Commission was given an assignment to make a routine inspection of the appellant’s real estate office with instructions to “pay special attention to the escrow account.” Pursuant to this assignment, the investigator made four attempts to inspect the appellant’s [162]*162office records but was not able to do so because appellant was absent on each occasion.
During these visits the investigator identified himself to appellant’s secretary, declared the purpose of his visit, left a telephone number where he could be reached, and requested that the secretary relay this information to Mr. Roberts. The appellant never contacted the investigator. On a later visit the investigator spoke to the appellant’s wife, again identified himself, stated his purpose and requested that appellant contact him so that an appointment could be made for an inspection. Again the appellant failed to respond. Finally, the investigator made his fifth visit. This time the appellant was. present but refused to allow the investigator to make an inspection of his escrow account, stating that his.attorney had “advised him there was nothing in the Real Estate Law or Act that compelled him to permit such an inspection by me or any one else, and on the basis of this he would not permit such an inspection.”
Pursuant to this refusal, the commission, upon its own motion, issued a citation to the appellant charging, inter alia, that he violated Section 10(a) (11) (v) of the Real Estate Brokers License Act of May 1, 1929, P. L. 1216, as amended [63 P.S. 440(a) (11) (v) ] by so refusing.
A hearing was held at which the investigator and the secretary of the commission were the only witnesses. The commission found, inter alia, that its investigator was refused permission by the appellant to inspect his escrow account and records and that such refusal constituted a violation of Subsection (11) (v) of Section 10(a) of the Real Estate Brokers License Act of 1929. The commission’s order was appealed to the Court of Common Pleas of Dauphin County, which affirmed the commission and dismissed the appeal. An appeal to the Superior Court resulted in a per curiam affirmance of the Dauphin County Court, with Judge Hoffman fil[163]*163ing a dissenting opinion,' in which Judges Spaulding and Cebcone joined. We granted allocatur.
The appellant alleges that the commission violated his constitutional rights against self-incrimination and unreasonable searches and seizures. What is involved in actuality is the right of the commission to examine the appellant’s records without subpoenaing those records, and whether the refusal of a licensee to allow an investigator of the commission to examine his escrow account, standing alone, constitutes a violation of the Act of such nature as to justify suspension of the license.
The Real Estate Brokers License Act of 1929, as amended, 63 P.S. §431 et seq., provides in §10(a) as follows: “(a) The commission . . . shall have the power temporarily to suspend or permanently to revoke licenses . . . when ... it shall find the holder thereof to have been guilty ... (11) Of failure to comply with the following requirements ... (v) Every real estate broker shall keep records of all funds deposited [in escrow accounts]. . . . All such records and funds shall be subject to inspection by the commission.”
Appellant, relying on the proposition that because the Act is penal, its provisions must be strictly construed, Pa. State Real Estate Comm. v. Keller, 401 Pa. 454, 165 A. 2d 79 (1960), first urges that the Act should not be read to permit a so-called general or routine investigation without any specific allegation or complaint charging wrongdoing.
However, the statute clearly states that the commission may “upon its own motion . . . investigate any action or business transaction of any licensed real estate broker or real estate salesman.” (Emphasis supplied.) We believe “any action” means “any action,” not just one where wrongdoing is suspected, otherwise the commission could not properly exercise its function of the [164]*164comprehensive regulation of the business of selling real estate to others. Verona v. Schenley Farms Co., 312 Pa. 57, 167 Atl. 317 (1933).
Appellant next urges that the charge of failure to permit an investigator to examine records is not specifically listed-as one of the grounds for revoking or suspending a license. It ivas this position which influenced the dissent of Judge Hoffman in the Superior Court. We do not agree with that interpretation. In our opinion, each of the requirements appearing in Subsection (11) of Section 10(a) of the statute is a separate ground for suspension of a real estate license. The appellant clearly failed to meet the requirement of Subsection (v) that “All such records and funds shall be subject to inspection by the commission.” Consequently, there is support for the commission’s suspension order.
Appellant next urges that if our interpretation of the statute is correct, the statute is unconstitutional, because a provision compelling real estate brokers to produce their records violates the privilege against self-incrimination. The appellant relies on the case of See v. City of Seattle, 387 U.S. 541 (1967), where the Court said at page 544: “It is now settled that, when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.”
We believe that appellant’s case calls for invoking the “Required Record Doctrine,” Shapiro v. United States, 335 U.S. 1 (1948), namely, that: “[T]he privilege which exists as to private papers cannot be maintained in relation to ‘records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of [165]*165governmental regulation and the enforcement of restrictions validly established.’ ” (Page 33)
See v. City of Seattle, supra, did not affect that doctrine. The opinion of Mr. Justice White, speaking for the majority, stated at pages 545 and 546: “We do not in any way . . . question such accepted regulatory techniques as licensing programs which require inspections prior to operating a business or marketing a product.”
Appellant contends that he is a private individual conducting a private business and that there is nothing in the law that makes his business or his records “public.” We cannot agree. Apparently, appellant does not fully understand the doctrine. In our view, the doctrine applies wherever an individual has voluntarily entered a field which requires licensing by the state.
Free access — add to your briefcase to read the full text and ask questions with AI
Opinion by
Mr. Justice O’Brien,
Appellant is a licensed real estate broker, having been so licensed since 1936. The facts in this case are as follows:
An investigator employed on behalf of the State Real Estate Commission was given an assignment to make a routine inspection of the appellant’s real estate office with instructions to “pay special attention to the escrow account.” Pursuant to this assignment, the investigator made four attempts to inspect the appellant’s [162]*162office records but was not able to do so because appellant was absent on each occasion.
During these visits the investigator identified himself to appellant’s secretary, declared the purpose of his visit, left a telephone number where he could be reached, and requested that the secretary relay this information to Mr. Roberts. The appellant never contacted the investigator. On a later visit the investigator spoke to the appellant’s wife, again identified himself, stated his purpose and requested that appellant contact him so that an appointment could be made for an inspection. Again the appellant failed to respond. Finally, the investigator made his fifth visit. This time the appellant was. present but refused to allow the investigator to make an inspection of his escrow account, stating that his.attorney had “advised him there was nothing in the Real Estate Law or Act that compelled him to permit such an inspection by me or any one else, and on the basis of this he would not permit such an inspection.”
Pursuant to this refusal, the commission, upon its own motion, issued a citation to the appellant charging, inter alia, that he violated Section 10(a) (11) (v) of the Real Estate Brokers License Act of May 1, 1929, P. L. 1216, as amended [63 P.S. 440(a) (11) (v) ] by so refusing.
A hearing was held at which the investigator and the secretary of the commission were the only witnesses. The commission found, inter alia, that its investigator was refused permission by the appellant to inspect his escrow account and records and that such refusal constituted a violation of Subsection (11) (v) of Section 10(a) of the Real Estate Brokers License Act of 1929. The commission’s order was appealed to the Court of Common Pleas of Dauphin County, which affirmed the commission and dismissed the appeal. An appeal to the Superior Court resulted in a per curiam affirmance of the Dauphin County Court, with Judge Hoffman fil[163]*163ing a dissenting opinion,' in which Judges Spaulding and Cebcone joined. We granted allocatur.
The appellant alleges that the commission violated his constitutional rights against self-incrimination and unreasonable searches and seizures. What is involved in actuality is the right of the commission to examine the appellant’s records without subpoenaing those records, and whether the refusal of a licensee to allow an investigator of the commission to examine his escrow account, standing alone, constitutes a violation of the Act of such nature as to justify suspension of the license.
The Real Estate Brokers License Act of 1929, as amended, 63 P.S. §431 et seq., provides in §10(a) as follows: “(a) The commission . . . shall have the power temporarily to suspend or permanently to revoke licenses . . . when ... it shall find the holder thereof to have been guilty ... (11) Of failure to comply with the following requirements ... (v) Every real estate broker shall keep records of all funds deposited [in escrow accounts]. . . . All such records and funds shall be subject to inspection by the commission.”
Appellant, relying on the proposition that because the Act is penal, its provisions must be strictly construed, Pa. State Real Estate Comm. v. Keller, 401 Pa. 454, 165 A. 2d 79 (1960), first urges that the Act should not be read to permit a so-called general or routine investigation without any specific allegation or complaint charging wrongdoing.
However, the statute clearly states that the commission may “upon its own motion . . . investigate any action or business transaction of any licensed real estate broker or real estate salesman.” (Emphasis supplied.) We believe “any action” means “any action,” not just one where wrongdoing is suspected, otherwise the commission could not properly exercise its function of the [164]*164comprehensive regulation of the business of selling real estate to others. Verona v. Schenley Farms Co., 312 Pa. 57, 167 Atl. 317 (1933).
Appellant next urges that the charge of failure to permit an investigator to examine records is not specifically listed-as one of the grounds for revoking or suspending a license. It ivas this position which influenced the dissent of Judge Hoffman in the Superior Court. We do not agree with that interpretation. In our opinion, each of the requirements appearing in Subsection (11) of Section 10(a) of the statute is a separate ground for suspension of a real estate license. The appellant clearly failed to meet the requirement of Subsection (v) that “All such records and funds shall be subject to inspection by the commission.” Consequently, there is support for the commission’s suspension order.
Appellant next urges that if our interpretation of the statute is correct, the statute is unconstitutional, because a provision compelling real estate brokers to produce their records violates the privilege against self-incrimination. The appellant relies on the case of See v. City of Seattle, 387 U.S. 541 (1967), where the Court said at page 544: “It is now settled that, when an administrative agency subpoenas corporate books or records, the Fourth Amendment requires that the subpoena be sufficiently limited in scope, relevant in purpose, and specific in directive so that compliance will not be unreasonably burdensome.”
We believe that appellant’s case calls for invoking the “Required Record Doctrine,” Shapiro v. United States, 335 U.S. 1 (1948), namely, that: “[T]he privilege which exists as to private papers cannot be maintained in relation to ‘records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of [165]*165governmental regulation and the enforcement of restrictions validly established.’ ” (Page 33)
See v. City of Seattle, supra, did not affect that doctrine. The opinion of Mr. Justice White, speaking for the majority, stated at pages 545 and 546: “We do not in any way . . . question such accepted regulatory techniques as licensing programs which require inspections prior to operating a business or marketing a product.”
Appellant contends that he is a private individual conducting a private business and that there is nothing in the law that makes his business or his records “public.” We cannot agree. Apparently, appellant does not fully understand the doctrine. In our view, the doctrine applies wherever an individual has voluntarily entered a field which requires licensing by the state. The mere act of entering or remaining in an activity that has become subject to a required recording or reporting of information, as here, where appellant voluntarily became a real estate broker knowing full well that he would be subject to the powers of the State Real Estate Commission to revoke or suspend his license for failure to comply with the statute governing his chosen profession, constitutes a waiver of the privilege against incrimination insofar as the license is concerned. See 65 Columbia Law Review 681, “Required Information and the Privilege Against Self-Incrimination,” wherein it is stated at page 687: “[T]he choice to forego protection of the privilege is made by the individual when he decides to engage in the regulated activity. The apparent basis for this general waiver theory is that the individual who wishes to engage in an activity subject to regulation must accept the conditions incident thereto.”
The appellant also argues, relying on Annenberg v. Roberts, 333 Pa. 203, 2 A. 2d 612 (1938), that the statute is unconstitutional because the commission’s blanket [166]*166request to see the appellant’s escrow account would be an unreasonable search and seizure unless the appellant were first given an opportunity to have a judicial determination of the reasonableness of the demands made by the inspector, as would be present if the commission were forced to proceed to issue a. subpoena under Section 13 of the Act, 63 P.S. 443. What was said regarding a waiver of the Fifth Amendment under the required. records doctrine also holds true for the Fourth Amendment.
In addition, the United States Supreme Court has said that for a search, by an administrative agency to be reasonable, “it is sufficient if the inquiry is within the authority of the agency, the demand is not too indefinite, and the information sought is reasonably relevant.” United States v. Morton Salt Co., 338 U.S. 632 (1950).
Here, those three tests were met. The inquiry was, as we have already said, within the authority of the commission. The demand was definite. The inspector clearly informed the appellant that the purpose of the inspection was to verify appellant’s escrow account. This was certainly relevant insofar as the statute required that such accounts .be carefully kept. 63 P.S. 440(a)(11).
Accordingly, we think, that the words of Mr. Justice Jackson’s majority opinion in the Morton Salt case apply: “Even if one were to regard the request for information, in this case as caused by nothing more than official curiosity, nevertheless law-enforcing agencies have a legitimate right to satisfy themselves that [appellant’s] behavior is consistent with the law and the public interest.”
Order affirmed.