Tuerk v. Department of Licensing

864 P.2d 1382, 123 Wash. 2d 120
CourtWashington Supreme Court
DecidedJanuary 13, 1994
Docket60360-0
StatusPublished
Cited by53 cases

This text of 864 P.2d 1382 (Tuerk v. Department of Licensing) is published on Counsel Stack Legal Research, covering Washington Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tuerk v. Department of Licensing, 864 P.2d 1382, 123 Wash. 2d 120 (Wash. 1994).

Opinions

Dolliver J.

The Department of Licensing (DOL) and four DOL employees seek review of the Court of Appeals reversal of the trial court’s grant of summary judgment in favor of DOL. The Court of Appeals held DOL acted without legal authority in refusing to renew respondent Maxine Tuerk’s real estate broker’s license for failure to supply DOL with her current home address. We reverse.

In 1969, when Maxine Tuerk was first licensed in Washington as a real estate broker, she submitted her home address to DOL. Since that time, Tuerk apparently has been adamant against providing her home address to DOL. In 1982, Tuerk challenged DOL’s authority to request the information. The parties entered into a stipulation wherein DOL agreed to refrain from requesting Tuerk’s home address based upon the circumstances which existed at that time.

In October 1987, those circumstances changed when DOL promulgated WAC 308-1240-010(3), which provides:

It is the responsibility of each and every licensee to keep the director [of licensing] informed of his or her current home address.

The purpose of the WAC is to

alleviate the difficulties DOL experiences in locating an applicant who does not yet have a business location, in locating a licensee who is in the process of moving their business, and in locating a licensee who no longer uses his or her business [123]*123address so as to avoid service of charges concerning the revocation or suspension of a license. . . .

Clerk’s Papers, at 100-01. DOL implemented this regulation on its change of business address forms.

In July 1988, Tuerk submitted a change of business address form notifying DOL of her move from Bellevue to Bothell. Tuerk wrote "not applicable” across the blank requesting her home address. At this time, DOL was reviewing Tuerk’s file to determine whether she qualified for the renewal of her license. RCW 18.85.140. A supervisor in the broker’s section of the real estate licensing unit of DOL, Donna Ashman, sent Tuerk three letters, dated August 29, 1988, September 27, 1988, and November 3, 1988, notifying her that her license could not be renewed without the requested information. Tuerk, however, refused to supply her home address. As a consequence, Tuerk’s file was incomplete, and DOL was unable to process the renewal. Tuerk’s license expired naturally in October 1988.

In January 1989, the assistant program manager of the professional programs management division of DOL, Karen Jarvis, wrote Tuerk advising her again that her license could not be renewed until she complied with WAC 308-124C--010(3) and provided DOL with her current home address. In response, Tuerk’s counsel advised DOL he could obtain affidavits that Tuerk resided in Snohomish County, Washington. This information was considered insufficient to process her renewal. As the Director of DOL, Mary Faulk, stated, "Without [Tuerk’s] home address, her renewal cannot be evaluated by DOL to determine if she is qualified for a broker’s license . . .”. Clerk’s Papers, at 100.

On May 22, 1989, Tuerk filed suit against DOL and four employees alleging negligent and/or intentional infliction of emotional distress, defamation, violations of Const. art. 1, §§ 2, 7, and violations of 42 U.S.C. §§ 1983, 1985, 1986. The trial court denied Tuerk’s motion for partial summary judgment on the issue of liability. It ruled DOL was authorized to condition renewal of Tuerk’s license on the submission of [124]*124her home address. DOL’s subsequent motion for summary-judgment was granted.

Tuerk appealed. The Court of Appeals reversed, holding WAC 308-124C-010(3) did not authorize DOL to condition renewal of Tuerk’s broker’s license upon submission of her home address. Tuerk v. Department of Licensing, 67 Wn. App. 872, 876, 841 P.2d 61 (1992). In dicta, the court speculated that DOL’s action, even if authorized, might violate due process. The dissent argued DOL’s authority to condition Tuerk’s renewal was implied within the grant of its broader statutory authority. Tuerk, 67 Wn. App. at 877-78 (Morgan, J., dissenting). This court granted DOL’s petition for review. We reverse.

In its petition, DOL challenges whether its actions violated Tuerk’s due process rights. We note, however, the Court of Appeals discussion of the due process issue was dicta contained in a footnote. Moreover, Tuerk’s complaint fails to allege violations of Const. art. 1, § 3 or the Fourteenth Amendment. Generally, the scope of review of a Court of Appeals decision is limited to the questions raised in the petition for review and the answer. RAP 13.7(b). See State v. Collins, 121 Wn.2d 168, 178-79, 847 P.2d 919 (1993). This court, however, has discretion to waive this rule to " 'serve the ends of justice’ ”. Kruse v. Hemp, 121 Wn.2d 715, 721, 853 P.2d 1373 (1993) (quoting RAP 1.2(c)). We believe it appropriate to exercise our discretion in this case to address whether DOL’s refusal to process Tuerk’s renewal without a hearing was authorized under WAC 308-124C-010(3), RCW 18.85, and former RCW 34.04, the administrative procedure act in effect when Tuerk filed suit. See RCW 34.05.902.

The first issue is whether DOL was authorized to require brokers to provide their current home addresses on its change of business address forms. Tuerk argues WAC 308-124C-010(3) does not expressly authorize this requirement. DOL’s authority, however, is not so limited.

Administrative agencies have those powers expressly granted to them and those necessarily implied from their [125]*125statutory delegation of authority. Municipality of Metro Seattle v. Public Empl. Relations Comm’n, 118 Wn.2d 621, 633, 826 P.2d 158 (1992). Agencies have implied authority to carry out their legislatively mandated purposes. See Municipality of Metro Seattle v. Public Empl. Relations Comm’n, supra; Stegriy v. King Cy. Bd. of Appeals, 39 Wn. App. 346, 693 P.2d 183 (1984); Greig v. Metzler, 33 Wn. App. 223, 653 P.2d 1346 (1982); Anderson, Leech & Morse, Inc. v. State Liquor Control Bd., 89 Wn.2d 688, 694-96, 575 P.2d 221 (1978). When a power is granted to an agency, "everything lawful and necessary to the effectual execution of the power” is also granted by implication of law. State ex rel. Puget Sound Nav.Co. v. Department of Transp., 33 Wn.2d 448, 481, 206 P.2d 456 (1949) (quoting

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Bluebook (online)
864 P.2d 1382, 123 Wash. 2d 120, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tuerk-v-department-of-licensing-wash-1994.