### FILED APRIL 15,2014 In the Office ofthe Clerk ofCourt W A State Court ofAppeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE MICHAEL SCOTTMACLAY, ) ) No. 31472-3-III Appellant, ) ) 

### v. ) ) STATE OF WASHINGTON ) UNPUBLISHED OPINION DEPARTMENT OF LICENSING, ) ) Respondent. ) KORSMO, J.

- Michael Scott Maclay, a formerreal estate broker, misused a lien statute. TheDepartment ofLicensing sanctionedMr. Maclay and he appealed. We affirm. FACTS Nicholas Petrilli, Jr., andhis wife entered into an exclusive listing agreement with Michael ScottMaclayto sell theirhouse. The Petrillis became disenchanted with Mr. Maclay's services and soughttoterminate the listing agreement.No. 31472-3-III Maclay 

### v. Dep'tof Licensing Although the exactterms are unknown, the parties reached some form of agreement that resulted in the Petrillis listing theirhome as for sale by owner. After this change in advertising, the Petrillis found a buyer for their home. Believing that he was still owed a commission, Mr. Maclay pestered the Petrillis and their attorney for payment; they refused. Mr. Maclay retaliated by filing a lien against the proceeds from the sale using the Commercial Real Estate BrokerLien Act, chapter 60.42 RCW. The Petrillis, their attorney, and the title company all agreed that the lien was invalid and refused to honor it. When the lien failed to secure payment, Mr. Maclay returned to calling and e-mailingthePetrillisandtheirattorney.Fedup.Mr
. Petrilli filed
a complaintwith the Washington State Department ofLicensing (DOL). The DOL investigation found that Mr. Maclay had improperly used the commercial lien act because it did not encompass the residential property at issue in this listing. The initial investigation also determined that the filing ofthis lien violated RCW 18.235.130(4) and RCW 18.86.030(1)(a) and (b) because the lien was improperly intended to cloud title and hold up the sale ofthe home. Based on these violations, and certain aggravating and mitigating factors that will not be addressed here, the DOL issued
a $3,040 fine (five times the amount sought from the Petrillis) and a 90-day suspension, which would become a one-year suspension ifthere was any additional misconduct within five years. 

### 2No. 31472-3-III Maclay v. Dep'( of Licensing


### Mr. Maclay appealed the decision through the briefadjudicative proceeding process offeredbythe DOL. The hearing officer in the briefadjudicative proceeding reviewedthe record and substantially agreed with the investigator's findings. However, the hearing officer vacated the violation ofRCW 18.86.030(l)(b) based on a lack of evidence, and accordingly modified the sanction to eliminate the 90-day suspension. Mr. Maclay then sought an administrative review ofthe briefadjudicative proceeding. The director ofthe DOL reviewedthe record ofthe briefadjudicative proceeding and affirmed. 

### Mr. Maclay sought reconsideration, which the director denied. Having exhausted his administrative remedies, Mr. Maclay soughtreview in superior court. The superior court reviewed the record and gave 

### Mr. Maclay a hearing, butultimately affirmed. 

### Mr. Maclay now appeals to this court. ANALYSIS Underthe Washington State Administrative Procedure Act, this court's review of the facts is confinedto those contained in the agency record. RCW 34.05.558. Reliefin this courtrequires proofofinvalid agency action as defined by RCW 34.05.570(3) and resulting substantial prejudice. RCW 34.05.570(1). When reviewing appeals from administrative agencies, the Court ofAppeals "sits in the sameposition as the superior courtwhen reviewing an agency's decision." Hunter v. Univ. ofWash., 101 Wn. App. 283,288,2 P.3d 1022 (2000).

3No.3l472-3-II1 Maclay v. Dep 't of Licensing
This court "view[s] the evidence and any reasonable inferences in the light most favorable to the party that prevailed in the highest forum exercising fact finding authority." Schofieldv. Spokane County, 96 Wn. App. 581, 586, 980 P.2d 277 (1999). Furthermore, because Mr. Maclay did nottake properexception to any ofthe DOL's findings offact, this court must accept them as verities on appeal. Tapper v. Emp'tSec. Dep't, 122 Wn.2d 397, 407,858 P.2d494 (1993). However, this court reviews alleged misinterpretations and misapplications oflaw de novo. BullseyeDistrib. LLCv. Gambling Comm 'n, 127 Wn. App. 231, 237, 110 P.3d 1162 (2005). Mr. Maclay raises several issues in his opening and reply briefs. Most ofthese arguments lack reviewability due to Mr. Maclay's failure to provide citations to applicable legal authority andreferences to relevant parts ofthe record as required by RAP 1O.3(a)(6). Ofthe issues presentedby Mr. Maclay, we find one to bereviewable. Mr. Maclay's main contention appears to be that the DOL, at all stages, acted arbitrarily and capriciouslyby notinvestigating facts that would support a violation ofthe statutes he was sanctionedunderand by not explaining howhis actions violated these statutes. We disagree. The DOL sanctioned Mr. Maclay under RCW 18.235.130(4) and RCW 18.86.030(1)(a). RCW 18.235.130(4) states that 

### itis unprofessional conduct for a license holder to actwith "[i]ncompetence, negligence, or malpractice that results in harm or



### 4No. 31472-3-III Maclay 

### v. Dep'tof Licensing damage to another orthat creates an unreasonable risk ofharm or damageto another." RCW 18.86.030(1)(a) requires a broker to "exercisereasonable skill and care." The DOL found thatMr. Maclay's filing ofthe commercial lien against residential property violated both ofthese statutes. The DOL clearly explained its position and reasoning in the investigator's letter to Mr. Maclay, and in greater detail in the hearing officer's findings offact and conclusions oflaw. These findings and conclusions are correct. The Commercial Real Estate BrokerLien Act only applies toproperty that falls within the definition of"commercialreal estate." RCW 60.42.010. The definition of "commercialreal estate" explicitly excludes "real property which is (a) improved with
one single-familyresidential unit." RCW 60.42.005(1). However, the definition also provides that real estate will be considered "commercial real estate" "ifthe commission agreement so provides." 

### ld. Here, the land was improved with one single-family residential unit andwas explicitly considered in the commission agreementto be residential real estate. Thus, under no circumstances was the Petrillis' homethe proper subject ofa commercial lien. A real estate broker using reasonable skill and care would have known that this act did not apply to the proceeds from the sale ofPet rillis' property. Mr. Maclay's improper
use ofthis act speaks for itselfand shows that he at least acted negligently or incompetently and did not exercise reasonable skill and care. Accordingly, the DOL did 

### 5No. 31472-3-II1 

### Maclay v. 

### Dep" of Licensing

not err by finding that Mr. Maclay violatedRCW 18.235.130(4) and RCW 18.86.030(1)(a). Mr. Maclay's other contentions revolve around alleged irregularities in the DOL's administrativeprocedures. Because Mr. Maclay has not cited to any statutes or regulations thathe believes were violated, his arguments are notreviewable by this court. Affirmed. A majority ofthe panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuantto RCW2.06.040.
Kors(#, 

### J. WE CONCUR:

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