FILED 


APRIL 15,2014 


In the Office of the Clerk of Court 


W A State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


MICHAEL SCOTT MACLAY, ) 

) No. 31472-3-III 

Appellant, ) 

) 

v. ) 

) 

STATE OF WASHINGTON ) UNPUBLISHED OPINION 

DEPARTMENT OF LICENSING, ) 

) 

Respondent. ) 

KORSMO, J. - Michael Scott Maclay, a former real estate broker, misused a lien 

statute. The Department ofLicensing sanctioned Mr. Maclay and he appealed. We 

affirm. 

FACTS 

Nicholas Petrilli, Jr., and his wife entered into an exclusive listing agreement with 

Michael Scott Maclay to sell their house. The Petrillis became disenchanted with Mr. 

Maclay's services and sought to terminate the listing agreement. 
No. 31472-3-III 

Maclay v. Dep't ofLicensing 

Although the exact terms are unknown, the parties reached some form of 

agreement that resulted in the Petrillis listing their home 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 Broker Lien 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 complaint with the Washington State Department of Licensing (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 of this 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 if there was any additional misconduct 

within five years. 

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No. 31472-3-III 

Maclay v. Dep '( ofLicensing 

Mr. Maclay appealed the decision through the brief adjudicative proceeding 

process offered by the DOL. The hearing officer in the brief adjudicative proceeding 

reviewed the 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 brief adjudicative 

proceeding. The director ofthe DOL reviewed the record ofthe brief adjudicative 

proceeding and affirmed. Mr. Maclay sought reconsideration, which the director denied. 

Having exhausted his administrative remedies, Mr. Maclay sought review in 

superior court. The superior court reviewed the record and gave Mr. Maclay a hearing, 

but ultimately affirmed. Mr. Maclay now appeals to this court. 

ANALYSIS 

Under the Washington State Administrative Procedure Act, this court's review of 

the facts is confined to those contained in the agency record. RCW 34.05.558. Reliefin 

this court requires proof of invalid 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 same position as the superior 

court when reviewing an agency's decision." Hunter v. Univ. ofWash., 101 Wn. App. 

283,288,2 P.3d 1022 (2000). 

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No.3l472-3-II1 

Maclay v. Dep 't ofLicensing 

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." Schofield v. Spokane County, 96 Wn. App. 581, 586, 980 P.2d 277 (1999). 

Furthermore, because Mr. Maclay did not take proper exception to any of the DOL's 

findings of fact, this court must accept them as verities on appeal. Tapper v. Emp't Sec. 

Dep't, 122 Wn.2d 397, 407,858 P.2d 494 (1993). However, this court reviews alleged 

misinterpretations and misapplications of law de novo. Bullseye Distrib. LLC v. 

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 of these 

arguments lack reviewability due to Mr. Maclay's failure to provide citations to 

applicable legal authority and references to relevant parts of the record as required by 

RAP 1O.3(a)(6). Of the issues presented by Mr. Maclay, we find one to be reviewable. 

Mr. Maclay's main contention appears to be that the DOL, at all stages, acted 

arbitrarily and capriciously by not investigating facts that would support a violation of the 

statutes he was sanctioned under and by not explaining how his 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 it is unprofessional conduct for a license 

holder to act with "[i]ncompetence, negligence, or malpractice that results in harm or 

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No. 31472-3-III 

Maclay v. Dep't ofLicensing 

damage to another or that creates an unreasonable risk ofharm or damage to another." 

RCW 18.86.030(1)(a) requires a broker to "exercise reasonable skill and care." 

The DOL found that Mr. Maclay's filing of the commercial lien against residential 

property violated both of these 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 of fact and conclusions of law. These findings and conclusions are 

correct. 

The Commercial Real Estate Broker Lien Act only applies to property that falls 

within the definition of "commercial real estate." RCW 60.42.010. The definition of 

"commercial real estate" explicitly excludes "real property which is (a) improved with 

one single-family residential 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 and was explicitly considered in the commission agreement to be 

residential real estate. Thus, under no circumstances was the Petrillis' home the proper 

subject of a 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 of Pet rill is' property. Mr. Maclay's improper 

use of this act speaks for itself and shows that he at least acted negligently or 

incompetently and did not exercise reasonable skill and care. Accordingly, the DOL did 

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No. 31472-3-II1 

Maclay v. Dep" ofLicensing 

not err by finding that Mr. Maclay violated RCW 18.235.130(4) and RCW 

18.86.030(1 )(a). 

Mr. Maclay's other contentions revolve around alleged irregularities in the DOL's 

administrative procedures. Because Mr. Maclay has not cited to any statutes or 

regulations that he believes were violated, his arguments are not reviewable 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 pursuant to 

RCW 2.06.040. 

Kors(#, J. 

WE CONCUR: 

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