STATE OF SOUTH DAKOTA
OFFICE OF
THE ATTORNEY GENERAL

July 12, 1972

Mr. Jack Birchill
Secretary-Treasurer
S. D. Real Estate Commission
Pierre, S. D.

OFFICIAL OPINION NO. 72-35

Regulative board may, if circumstances require, provide for reprimand of licensee to a degree less than revocation or suspension of license.

Dear Mr. Birchill:

You have requested an official opinion in regard to a perplexing problem presented to many regulatory boards, such as the Real Estate Commission.

The question submitted is as follows:

When a regulatory board is granted authority to discipline members it licenses, after hearing on charges alleging violation of law, determines that such violation actually occurred, and the statute provides that such board may suspend or revoke, or only revoke the license for such violation, may such regulative board enter an order of reprimand in a degree less than revocation or suspension?

It is not surprising to find that this particular question is not well litigated. Normally a licensee who finds that he is subject to discipline amounting to either a revocation or suspension of his license, upon proof of violation of statute, is so pleased with receiving a less harsh punishment than suspension or revocation, that he will not proceed to a judicial determination of such Order.

It is settled law that every statute enacted for the regulation of any business or profession fundamentally is based upon the police power of the state. Such regulatory statutes exist fundamentally for the protection of the public, and the public welfare.

The Missouri Appellate Court properly commented upon the purposes of any disciplinary proceedings in Asem v. Missouri Dental Board (Mo. App. 1966) 405 S.W. 2d 492.

The thread of logic running through all disciplinary cases reveals that the purpose is to protect the public from the practice of professions by persons unfit or unworthy to serve, to uphold the ethics and dignity of the profession, and to maintain the public’s confidence therein. In Re Ellis, 359 Mo. 231, 221 S.W. 2d 139; In Re Canzoneri, (Mo.) 334 S.W. 2d 30.

Punishment of the offender is not the purpose of disciplinary action. Instead we should weigh all the circumstances, including the previous and subsequent conduct of the offender; we should impose a penalty that will serve as a deterrent to others, and as an indication to laymen that the court will maintain the ethics of the profession. (cases cited)

Consistent with this approach, seems the well settled ruling that if an administrative board is granted the power to revoke a license, included within such power is the power to suspend such license for a designated period of time. Klatt v. Guaranteed Bond Co., 213 Wis. 12, 250 N.W. 825; Ritch v. Guaranteed Bond Co., 213 Wis. 28, 250 N.W. 831.

In New York the adjudicated and reported cases reveal that in many license cases, the judiciary is approached to determine whether or not the punishment levied was too severe. Illustrative of the court's handling of this problem is Shandler v. Allen (1967) 28 AD(2) 1150, 284 NYS(2) 412. The court admitted that in the first instance the "punishment" was primarily a question to be answered by the administrative board. When the severity of such punishment was called to the attention of the court, it said the court was limited to answering this question:

Is the measure of punishment or discipline imposed so disproportionate to the offense, in the light of all the circumstances, as be shocking to one's sense of fairness?

It was pointed out that if this question is answered in the affirmative, the court should reduce such measure of punishment or discipline imposed by the administrative board.

It is my opinion that the above mentioned decisions are proper. It appears that disciplinary punishment should vary ill light of the circum· stances presented in the record of such hearing. This being true, there is little question that instances could occur where the regulative body would have to conclude that outright suspension or revocation of the license would be unjustified.

In Pennsylvania State Board of Funeral Directors v. Erricheiti (1970) 440 Pa. 40, 269 A 2d 758, the court properly concluded that the penalty or disciplinary punishment must be based upon the record of the proceedings, and cannot be based upon a consideration of matters outside the record in the disciplinary case. A decision based upon matters outside the record of the disciplinary proceedings is illegal and void.

In Markel v. Florida State Board of Architecture (Fla. App. 1971) 253 So 2d 914, the court held that in the absence of statutory authorization, it was impermissible for the regulative board to order the revocation of such license, and then require the "ex-licensee" to pay the costs of such disciplinary hearing. The court found the taxation of costs, along with revocation, was impermissible.

I have mentioned these last two cases merely as guidelines or limitation upon powers. They, of course, have no bearing as to the merits of the question you have submitted.

Insofar as the question you have submitted, it is my opinion that after a consideration of the purposes behindw disciplinary action, that the question must be answered YES. If the disciplinary board determines that it would be shocking, in view of the entire record, to revoke or suspend the license, it does have authority to enter a reprimand in a degree less than revocation or suspension.

Respectfully submitted,

Gordon Mydland
Attorney General