please the court we have three primary arguments in our brief all of which we think are very poor is deserved the ration like to focus on two of those today the first more that i'd like to focus on is the argument that the real estate act of two thousand does not apply to carol group and that she does not fall under it you live in categories by this that are listed in this really in my mind if i see it there's really only one of us that arguably applies to her and that's number seven in the act it's the one that boils down to belief to the question of whether any of the five things that the department founder clued director included had  some and it seems to me that that's that doesn't fall under the category of holding oneself out to sell real estate that's really just facilitating the dissemination of deprivation and if the edit self w license real estate her case one of the ads actually said that she was real estate broker of course and most of the yes say that the house was for sale by owner and all she did was bring the money and the ads to the to the newspaper and it's rather hard to see in view of the fact that the newspaper ad itself doesn't buy the hack how aggregating the money and the ads to her interviews actually i want to go directly to the question of this language that the department seizes on this they say she said in some of these ads that she wanted quote sneak one here and i want to address that directly sneaking one in is it was it was just a way for her talking to interest her audience it wasn't to sell real estate  all that she was going in this is the evidence that hearing all of the all that she was doing at the time was reading from the heads that were posted on the i don't have that particular ad in front of me but if she said the words are there then i think probably you're correct in saying that that was not in the what but the text of the  she said was taken from the ad that was that was posted in any of it it's difficult to see how if the air itself doesn't violate ye then how her simply repeating the text of the substance of what's in the makes her real state of the fifth one role even if she knew it what was are there seems to me unfair that she's being held responsible for what may or may not be on the website and if posting those  it doesn't violate the act when it then her knowledge of what's on the website also can't find real we have to remember here that she was a contractor  virtue of their website be that as it may though can't be true people it's on the website to carol she was a contractor she's one step removed and nothing that she did none of those five it seems to me that what's what about the board specifically including their statements in the ads or ads that point it was not a real estate agent did not change the active role she played both in the ads and in servicing clients outside the media will go not blaming her for the ad they're blaming her for her activity sometimes in connection with the ad sometimes and promoting the ad on the radio show sometimes and saying we are i mean they made findings of fact and came to certain conclusions well about those are wrong but the conclusions yeah perhaps getting their house ready for sale or selling but if they don't fall under the eleven categories of items that are in in the real estate brokers act of two thousand and that's the difference that's where i think the confusion is simply assisting the homeowner isn't the same as practicing real estate as appropriate if that were the case then people who actually saw garden signs i mean every home depot or every at least hardware or any of those sorts of places would also have to be broker they sell the signs so you can sell the signs without being a broker then right can't you just bring to the homeowner if you can put your hand in the newspaper in the classified ad section of the newspaper why can't you aggregate and and by the way and if that am in the newspaper does not violate the real estate brokers act why can't you just bring those i am to bring the money from the homeowner to the newspapers office without having to have a real estate brokers license that may be assisting the homeowner but it's not practicing real estate under the act those are different things on the war as all of those home depots and i'm in the newspaper people they would all require licensing as well but the government and just to work just to do your job to build up your advertising business which is what she was doing even even during those interviews by the way doesn't this isn't the same as practicing real estate it what does that mean that we includes she and the service she works for the service she contracts in place for moment but the week we put that house on the market that is absolutely the opposite of saying we're over here the homeowner puts it on the market now we do a borrowed amount of assistance i think what she said was we she didn't say we put the house on the market that isn't right i think that was just a manner of speaking i agree it is a manner of speaking the question is is it i do misleading or does it broach cross the run now i by this act not one complaint not one said i was confused not even the brokers who brought the who brought the complaint against her said to me they suffered an injury th confused that they thought this was confusing they didn't even make that claim they never came to the to the administrative hearing to say something is no evidence to that effect there's not a drop of evidence that anyone in the public w and the public wasn't injured here there was no confusion by on the part of the public as to what carol cruel or even supposed it because they always knew that she was not working for it real estate agency that she was not brokering real estate he knew that so even though she may have said some point some words during the course of some number of interviews that might literally if taken literally lead one to believe the opposite no one no one really no one believe that to be the case and then i think is the important point w saying i know it's nothing that that requires them to do so i know that they know that they commonly do and i and i know that that would have again this is not in the record i know that that would taking care of the whole problem before hearing before twenty five thousand dollars fine messias but not given the option they just went to just went to a hearing from twenty five thousand dollars but that's the only thing that i know of to that effect in the on the other the other item that that i think i'd like to address at this point is bec which which has to do with modern communications among important industries and their and their customers that the cotton court ought to look  and further it seems to me that in view of the fact that this court reviews the constitutional arguments did obama that's all the more reason for it to for the court free speech and liberty arguments that are involved in this case and to to make the a rule of law here that is consistent with the rest of what's happening in this industry and i'm pointing of course to that the opinions that have come out of new hampshire and california especially and to allow carroll rule her right to free speech and her too will permit her to go forward with the liberty interest she has in making or earning a living and and and her occupation those are those are just the first amendment issue is is vital here and it also speaks at the same time to the question of whether it also speaks to the question of weather compensated by another there is only one court that i'm aware of that has looked at this question and that's new hampshire federal district court and in that case they said that the website question is no it's the court but it should be firm to be answers yes and so the court noticed before she said many things that implied that she was a broker but the press the most important one is a five sixty which in which she said she was asked what are the photos and the radio spots like those what real estate brokers do and she said yes except they don't get a commission so to play i took the only difference was that she didn't get a act but in fact she was compensated the plaintiff admits that she was compensated for what she did because she got half of the the fee that cisco took for hosting these ads but there are many many other instances in which she didn't say even as directly but but certainly implied that she and cisco were were acting as real estate brokers and again the definition includes both offering to sell representing oneself as engaged in the business of real estate and assisting in procuring leads to result in the sale and so so the plaintiffs didn't act as as as you know home depot does and those newspapers do because because those entities are indifferent to the outcome of the thing you have to say all plaintiffs clearly was not indifferent she is the court mentioned she actively pushed the sale of these homes and for example she she would say is the court now that this is one of my favorites you know the l did not say surely this is one of carroll rules favorites for her she also said in these radio spots you know this is one of the prettiest houses i've ever seen this is you should really come in and look at it now those are things that brokers do brokers encourage sellers and buyers to come and look at a house that's for sale she also said things that implied agenc know that that she was acting as she interested or acting as as an agent for the homeowner such as you know i help people sell their homes on the internet we have houses listed for open houses we sold half a million last week we come out and put your house up on the market we are putting houses up on the market and selling houses all of those things are things that brokers say and whether or not she meant to do this she in fact interest for someone's benefit is that what you mean by fiduciary interest and trust me there that she would say i know about six houses for sale or that she would take pictures of houses  well in the end in what she did everything she did furthered the benefit the interests of the sellers the clients so in that regard yes i mean she had she had been duty to act in their interests because they you know that website would certainly be here the only cost one hundred bucks and we'll give you a couple of yards or so i call up and say hey i want to sell my own house the reason art science moment take pictures and put them up at the website was like the least flattering photo and it discouraged by others for example i mean that was part of their duty was to do what if they were taking the photos i mean it's one thing if you took your own photos and they put them up i mean this is the difference between  was doing to help these individual owners this is the prettiest house i've done this and i'm taking the photos for you so that we can put your house on the market and i mean that's what she said they were doing so she was creating that sort of relationship we're putting your house on the market we're selling your house we're doing this i mean that's what she was saying and that's what she in fact did by taking these photos by individually highlighting certain tones and giving her own personal description of that she was representing herself as their agent pushing their house for sale now whether whether there was a contractual relationship to do that it doesn't matter so much as the apparent agency does because that's what she challenge the proof is yes it's our burden of proof but but we presented evidence to show that she was acting as their parent agency and she never said it current agent and she never said no no i'm not acting for another for compensation if she had we would have presented other evidence but she didn't and so we felt that our evidence was enough there and certain the circuit court agreed as it department agreed and the circuit court agreed and so the question is whether that that decision is clearly erroneous and the answer is no because of her parenting agency here well again she remember plaintiff herself said what i do is just like the photos to those obvious newspapers but she admitted this on the break in one of the radio spots what i do is just like walk a real estate agent does except i don't get the commission to the plaintiff that was the distinction that was her clear that if you don't raise a defense in the circuit in the administrative hearing you could procedurally defaulted that and you can't raise it in the circuit court and certainly not in the public court for the first time at appeal there's just there's a small exception for scheme there wasn't a limitation on developing the record here the plaintiff could have raised any defense she wanted she we could have presented evidence on this and she didn't raise these things so we didn't feel we needed to present more evidence on this  know she presented hurt her soul argument in the administrative hearing was i'm an app to i'm i'm a i'm just like a newspaper just like home depot i i'm just a transmitter of information and this simply isn't true certainly in the in the radio spots where you know she says all the things i've just said and also in the in the newspaper ads where she calls herself a marketing guru and she gives only her name and her number for all these hoping houses where the someone to think who sees those ads next to the cold war banker ads obviously hears to be a real estate broker i mean it's just it's just that simple she's putting herself out there to appear to be a real estate broker occasionally not always as the plaintiff said occasionally she would say suppose not a real estate broker but this was this would happen maybe a tenth of the time if you look at all the ads most of the time it just would say open house open house open house you know karkare old grewal and here's the number and and by doing that she appear to be the agent for these sellers but again i think i think really the most damning evidence here was her own admission at the hearing at page eighty five sixty that in fact everything she did was the acts of a broker except that she didn't get a  commission and if a player if the plaintiff herself admitted that she surely cannot be saying now that she wasn't a broker with regard to the procedurally defaulted issues there were three one one was the for another and for compensation chukchi obviously  change compensation because she got half of the fee and she acted for these people by highlighting their homes by aggregating the ads for them benefiting them assisting them in procuring sellers in this way everything she did have not everything many of the things she did were to assist individual owner speak and to exhibit an interest in the outcome of the transaction unlike a newspaper which just transmits information like a pure  which is pure advertising you know i'm like e bay i like craigslist the plaintiffs exhibited an interest in the outcome of these of these sales if this is the prettiest house i've ever seen i've never seen a prettier one coming look at it i mean all of these things demonstrated that she was acting too badly for these sellers perhaps absent a direct contract like a brokerage contract but still she was she was acting as and perhaps volunteer but commission but there still would have been the newspaper ads and there still would have been the taking of photographs and there still would have been signs in front of houses which don't say for sale by owner they say cisco so again that that's the appar agency that's just pose the agent for that get a license and didn't agree to accept a fine she went to distance and when you when you don't you know when when you don't accept a consent order then the department may find the records show he was off work with no it doesn't said ok i admit it i'm going to get a life sentence can i have the same deal the system had that that letter that request would be in the administrative placard its absence from the administrative record indicates that she did not make that request i'm sorry cisco's five seventy five i'm sorry summer so we're going to punish her about eight hundred thousand dollars that in that i'm out because she didn't request a consent create i mean a remedial scheme and a fine is is almost by its nature a punishment any fine a dollar fine would be a is a punishment but it's not supposed to be penal in the sense of criminal i mean here remember what the think she did this hundreds of times she had hundreds of newspaper ads which listed her name and her number only as representing the sellers she did these radio  your honor if we did it as a court indicated earlier an injury isn't the isn't required in order to impose a fine and remember what what what the purpose of the statute is is not just to protect consumers but it's also to i mean not just protection which come from misleading which of course these these ads were but misleading statements but also to protect the public from people who have not been vetted by the department for seventy competence and it will certainly deter other people from doing that from engaging in this sort of conduct which is inherently misleading and that's why going to the first amendment claim which is also procedur the department so the department wasn't able to present evidence for example the to support its burden because when there's a first amendment challenge of course the state has to show that you know it's nearly tailored and directly promotes the  the ends of the act which include among other things deterrence from other people acting as this but plato speech doesn't even get to the central hutson test because plaintiffs statements were inherently misleading sow homes we sold half a million dollars last week we've put houses on the market we do all of these things those statements are inherently misleading and because of that she doesn't even if there's no first the first amendment is not even implicated but even if the first amendment work implicated and you know and we have to address it because we didn't want to not be covered on the issue at least in the appellate court since we didn't have the opportunity to present evidence in term of war and i stand here now i don't remember all the elements that one needs to prove to show the agency but i know just being a commission salesman the sales person is not enough to stand that on its head for a to the company of it's paying them and that's just not the case that doesn't happen in the law doesn't happen in reality so that can't that can't be the case the the department has taken great  poetic justice let's call it with with them some of the things they've maintained the coward rule said the bottom line is that everything carroll rules it was always to build her advertising  business had nothing to do with brokering i'm sure she never said she was broke or sure she did she made i don't remember the exact quote frankly that they're that they're seizing on but i don't call that she said that she does things that a bro does but even if that's the case it seems to me that a person can do some of the things to assist a homeowner in selling their house without being a broker and those are the  things and also by the way newspapers do that all the time i know there is a statutory exception for newspapers but newspapers aren't as the new hampshire court and the california court pointed out they are not just passive vacation issue i think is misleading as well because this hand as stated by the legislature is for the purpose of protecting the public it's not supposed to protect the public from from dubious or even criminal activity in connection with the selling in sales of realists it's not the purpose of the act is not to protect real estate brokers from new forms of competition and that's really what was going on here and i think it's particularly unfair then to to to find carol will twenty five thousand dollars when in fact all that they were really doing here the people who claimed who brought the claim against her weren't even at the hearing to testify as to any harm and i think that's particularly unfair and as a result i ask that that