Maryland Real Estate Commission v. Garceau

Leahy, J. The issues in the underlying administrative appeal boil down to three. First: can a real estate broker, Georgeanna Garceau (Appellee and Cross-Appellant), be found negligent for failing to disclose the existence of a non-existent homeowners association? We don’t think so. Second: can Ms. Garceau be held negligent for failing to disclose potential well-water contamination in the neighborhood?

We determine she can. And third: was the sanction imposed by the Maryland Real Estate Commission (“MREC”) (Appellant and Cross-Appellee) on Ms. Garceau in this case arbitrary and capricious? Under the circumstances, the answer is yes, BACKGROUND A. Prologue On or about May 17, 2009, Victor and Eileen Yancone (collectively, the “Sellers”) entered into a contract of sale for residential property located at 2828 Cross Country Court, Fallston, Maryland (the “Property”), within a subdivision called Cross Country Estates, with Tim Willig and Debra Perseghin (collectively, the “Buyers”). Ms. Garceau served as the listing broker for this transaction.

The Buyers complained that Ms. Garceau failed to disclose that (1) there was a putative homeowners association (“HOA”) ³²⁹ operating in the neighborhood and (2) there was potential well-water pollution in the neighborhood relating to an Exxon-Mobil gas leak. But before we begin the saga of Ms. Garceau’s journey to this point, we render a short prologue. On August 14,1975, Leo Umerly executed a “Declaration of Restrictions” (the “1975 Declaration”) for plats one through four in Cross Country Estates and recorded this document in the office of the Recorder of Deeds for Harford County, Maryland. This document established certain protective covenants and restrictions for the lots, including the Property.

The covenants governed such things as (1) the number of dwellings, (2) the number and type of animals, and (3) the number and size of vehicles allowed on each lot. The 1975 Declaration, signed by Leo Umerly and notarized, did not establish an HOA. Notably, the 1975 Declaration states that “[t]he provisions herein contained shall run with and bind the land hereby conveyed for a period of thirty (30) years[.]” Thus, by its own terms, the 1975 Declaration expired in August 2005. On October 16, 2006, after the expiration of the 1975 Declaration, a second “Declaration of Restrictions” (the “2006 Declaration”) was filed in the land records of Harford County.

This 2006 Declaration stated that “Cross Country Estates Community Association, Inc. controls this declaration of restrictions as defined by the Maryland Homeowners Association Act.” The 2006 Declaration purported to govern the same general topics as the 1975 Declaration did. The last page was signed, “Beth F. Scheir, Vice President of CCECA,” but was not notarized. It was revealed during the course of the underlying litigation, that the Cross Country Estates Community Association (“CCECA”) is a neighborhood association, not an HOA, and the only declaration of restrictions that governed the neighborhood—the 1975 Declaration—expired in 2005. B. The Residential Real Estate Transaction and Complaint In early 2009, the Buyers were interested in purchasing a house and hired William Fischbein, of Litehouse Realty, as their agent.

They informed him that they were not interested ³³⁰ in properties subject to an HOA, in part because they wanted to build a fence for their dogs and had bad experiences in this regard in their prior residence. The Buyers became interested in purchasing the Property, so Mr. Fischbein contacted Ms. Garceau of Garceau Realty, who was the listing agent. Mr. Fischbein maintained, in the subsequent investigation, that the existence of an HOA fee or potential groundwater pollution was not disclosed to him, but that he did not specifically ask Ms. Garceau about an HOA because the existence of an HOA was not on any paperwork. 1 The Metropolitan Regional Information Systems (“MRIS”) report did not state that the Property was subject to an HOA or an HOA fee. Before closing on the Property, the Buyers had a standard well inspection performed, but that inspection did not test the water for contaminants.

On May 17, 2009, the Buyers and the Sellers executed the contract for sale of the Property for a purchase price of $439,900.00. The sales contract included a Maryland Homeowner’s Association disclosure form, which was crossed out with a handwritten “NO HOA.” 2 On June 29, 2009, the Buyers moved onto the Property, and they began to install ground posts for a fence. Three days ³³¹ later, a representative of the CCECA hand-delivered the Buyers a copy of the 2006 Declaration and a letter stating: Hello Neighbors, Welcome to Cross Country Estates! We hope you enjoy the neighborhood.

We assume that the realtors involved or the previous owner made you aware of the neighborhood association covenants, however a copy has been attached for your records. Both the By-Laws and Covenants are filed at the Harford County Courthouse Land Record department and Home Owner Depository. We have a minimal annual association fee of $10. All property owners are bound by the agreements of the homeowners association.

As a new property owner of CCE you are eligible to become a voting member of the association upon payment of the $10 fee. Several months after the Buyers moved onto the Property, a company engaged by ExxonMobil arrived at the Property to test the water for possible pollution caused by ExxonMobil. The arrival of this inspector was the first time the Buyers became aware of possible well-water contamination at the Property. On March 9, 2010, the Buyers filed with MREC a complaint against Ms. Garceau for her conduct in the real estate transaction: namely, for failing to disclose the existence of potential well contamination stemming from the ExxonMobil leak, and for “[n]o disclosure in listing/contract of an HOA[.] We were looking ONLY at homes w/out an HOA.” MREC denied the Buyers’ guaranty claim, 3 but determined that it would proceed with an administrative claim against Ms. Garceau.

C. The Investigation Ms. Garceau responded to the Buyers in a letter dated March 31, 2010, stating: ³³² The [Buyerjs claimed that no disclosure was made of an HOA. There is a [CACCEj. In our listing agreement the sellers signed off that there was no HOA, there are Declaration of Restrictions. I have attached several recent listings from the community; listings from several brokerages all of which state there is no HOA fee, the only exception being one of my previous listings reflecting the $10 voluntary fee.[ 4 ] On 5/14/09, prior to the contract ratification date of 5/17/09, seller Eileen Yancone responded to several of the [Buyers’] questions.

The potential buyers asked, “Are there any restrictions with regard to putting up fences, putting in plantings or gardens, building outbuildings like a garden shed, satellite dishes, etc?” The sellers responded, “Very limited covenants exist in the Cross Country Estates Community Association. These are on file with the county.” In addition, we sent the potential buyers the attached Declaration of Restrictions. The potential buyers also inquired about the well on 5/14. They asked “When was the well last sampled and what were the results?” Eileen Yancone responded “November 5, 2008, results negative.” Per seller, there was no water problem at the time of the listing, and the owners did not experience potability problems prior to that.

The buyer had the well tested on 5/19/09, all results passed and the buyer by their own admission states there is nothing wrong with the water. The listing broker/agent was not aware of any monitoring of water at 2828 Cross Country Court until this complaint surfaced. According to the appraisal conducted on 6/10/09, the HOA fee was non applicable. The appraiser also noted that there were “No neighborhood factors that would have a negative impact on marketability.” In closing, Garceau Realty did not ³³³ have any information that was withheld at the time of the listing or contract acceptance.

(Internal citations omitted). Robert J. Oliver, an MREC employee, investigated the Buyers’ complaint from June 17 to July 19, 2010. His report states that he interviewed the Buyers and that they told their broker, Mr. Fischbein, that they were interested only in properties not subject to an HOA because they wanted to build a fence for their dogs. The Buyers told Mr. Oliver that they had not seen a series of emails between Ms. Garceau and the Sellers concerning restrictive covenants or potential well-water contamination.

Mr. Oliver reported that he showed the Buyers the 1975 Declaration, but that the Buyers did not recall seeing it before. His report notes the Buyers were unaware of any HOA until July 2, 2009, when they received a letter from the CCECA, and that they learned of the potential well contamination when they received the letter from Exxon-Mobil about testing on October 26, 2009. According to his report, Mr. Oliver then interviewed Ms. Garceau. She informed him that she was on vacation for part of the transaction and that her assistants, Jessica Boyle and Julie Bleuel, represented her when she was gone.

Ms. Garceau was aware that the Buyers did not want a property covered by an HOA, but “the seller said there was no HOA and wrote ‘NO HOA’ across the MD Homeowners Act Disclosures to Buyer Document.” Ms. Garceau provided Mr. Oliver a copy of the contract checklist with HOA marked “N/A,” and informed him that “she was not aware of the existence of a community association.” When Mr. Oliver told Ms. Garceau that another property on the street that she sold in the past indicated that there was an HOA fee of $10, Ms. Garceau explained that “at the time the fee was voluntary and depended on the seller to inform her if they were a member of an association or not” and that “legally there is no HOA covering the property.” She added that the appraisal for the Property indicated there was no HOA fee.” Ms. Garceau was aware of the 2006 Declaration and said she provided a copy to the Buyers on May 14, 2009, ³³⁴ when she answered their questions about other restrictions and well testing. Ms. Garceau, who lived within a mile of the Property, also admitted to knowing about possible well contamination in the area, saying “everyone living in the area is aware of the dangers associated with the leak.” In her affidavit, however, Ms. Garceau explained that it was not until the Fall of 2011 that she received a letter informing her that she “became” a class member in the class action against ExxonMobil that resulted from this spill. See Exxon Mobil Corp. v. Ford, 433 Md. 426, 435-37 , 71 A.3d 105 , as supplemented on denial of reconsideration, 433 Md. 493 , 71 A.3d 144 (2013); Exxon Mobil Corp. v. Albright, 433 Md. 303, 316-17 , 71 A.3d 30 , on reconsideration in part, 433 Md. 502 , 71 A.3d 150 (2013). Mr. Oliver then interviewed Mr. Fischbein, who told him that (1) the Buyers informed him that they did not want property with an HOA; (2) the existence of an HOA was never disclosed to him or to the Buyers; and (3) “[h]e never asked [Ms. Garceau] specifically about the subject because there ha[d] been no disclosure in the contract or in the MLS documents.” Mr. Fischbein stated that he received no documentation of any restrictions on the Property, and the potential water pollution was not disclosed to him.

He denied knowledge of any class action lawsuit or any well-water contamination. D. The Statement of Charges On November 8, 2010, MREC issued a statement of charges (the “Charging Document”) against Ms. Garceau. The Charging Document identified Ms. Garceau as the listing broker and seller’s agent, alleging that: (1) the Buyers were interested only in properties not subject to an HOA and that Ms. Garceau was aware of that preference; (2) Ms. Garceau “was aware, or should have been aware, that the Cross Country Court property was part of a homeowners, or community, association and that the property was governed by a Declaration of Restrictions”; and (3) Ms. Garceau “did not disclose the existence of the homeowners, or community, association or ³³⁵ the Declaration of Restrictions 5 to the buyers or their real estate agent prior to settlement.” The Charging Document then stated that the Buyers would not have purchased the Property had they known of the HOA. The Charging Document alleged further that the Property “was subject to periodic testing of well water by ExxonMobil for possible contamination” associated with a gasoline leak and related litigation, and that Ms. Garceau lived and provided real estate brokerage services near the Property.

Therefore, the Document alleged that Ms. Garceau “knew, or should have known, of the possible contamination and well testing as well as the litigation[,]” and that Ms. Garceau did not disclose this information. The Buyers would not have purchased the Property, according to the charges, had they known this information. Finally, the Charging Document “alleged that [Ms. Gar-ceau’s] conduct amounted to bad faith, incompetency, and/or untrustworthiness, as well as improper dealings.” For the failure to disclose these two issues, MREC charged Ms. Garceau with violations of Maryland Code (1989, 2010 Repl. Vol.), Business Occupations and Professions Article (“BOP”), § 17-322(b)(4), 6 (25), 7 and (33), 8 as well as violations of Code of ³³⁶ Maryland Regulations (“COMAR”) 09.11.02.01A and D. 9 The Charging Document informed Ms. Garceau that there would be a hearing on the charges, which could result in a reprimand, suspension or revocation of her license, and/or a penalty of $5,000.00 for each violation.

E. The Administrative Hearing On June 3, 2011, an administrative law judge (“ALJ”) from the Office of Administrative Hearings (“OAH”) held a hearing on the charges against Ms. Garceau. The Assistant Attorney General prosecuting the MREC complaint (hereinafter “Presenter”) 10 called Mr. Willig as a witness. He testified that Ms. Garceau never disclosed, in her property listing or communications, that there was an HOA; 11 and that he had told Mr. ³³⁷ Fischbein of his desire not to purchase a residence subject to an HOA. He also stated that he received a declaration of restrictions purporting to govern the Property—after purchasing the Property—once he started constructing a fence on the Property.

He further stated that he and his wife had been paying a $10.00 annual fee, and he stated that, although he had not consulted a lawyer, he believed that he was bound by the declaration of restrictions. He further testified that he and his wife would not have purchased the house, had they known about an HOA “[bjecause [they] did not want an HOA.” Mr. Willig then testified that no one advised him before he and his wife purchased the house that there was an ongoing lawsuit relating to gasoline contamination in the neighborhood. He explained that he was informed of the potential problem when a company engaged by ExxonMobil showed up at the Property to test for contamination. Similar to the HOA issue, Mr. Willig testified that he and his wife would not have purchased the Property had they known about the ExxonMo-bil gas leak and the potential well-water contamination issue and that his wife refused to drink the water from the house.

After calling Mr. Fischbein, who attested to the same facts he related during the investigation, the Presenter called Andrea Swift, who, as mentioned previously, purchased a house in 2008 on Cross Country Court. She testified that Ms. Garceau was the listing broker for the house she purchased and that the listing contained an HOA fee of $10.00 a month and that Ms. Garceau’s office “sent [her] the bylaws.” She further testified that there was an active neighborhood association in the Cross Country Estates neighborhood. She also stated that there were trace amounts of the pollutant in the water at her house and that Ms. Garceau never provided information on the potential water pollution. Ms. Garceau did not testify in her own defense.

In closing, the Presenter argued that Ms. Garceau failed to disclose a material fact to the Buyers by failing to inform them of the HOA, and asserted that “when I use the term ‘HOA,’ I am referring to not just a[ ] homeowners association, but also any ³³⁸ type of neighborhood association or declaration of restrictions of covenants.” The Presenter argued that there had been no court decision stating that OCEOA was not a valid HOA and that CCECA certainly seemed to be an active association that accepts dues and takes votes on issues, As to the well contamination issue, the Presenter argued: In addition, there was a failure to disclose the issue of the well contamination, the fact of the testing, the fact of the class action litigation. And I would argue that even if Ms. Garceau didn’t have specific knowledge of it, she had been the listing agent for many properties in that community and development, and the law does require—specifically CO-MAR 09.11.02.01A, which is one of the charges in this case—that a licensee shall remain informed of matters affecting real estate in the community, the state, and the nation. If you are selling real estate in a community where a major gas company has caused a leak and that leak is the subject of class action litigation and the whole community, it sounds like, is involved in that litigation, that is something that, as a real estate broker, you have an obligation to know or be informed about. The [Sellers] were part of the class action litigation....

She should have known that information. She should have disclosed that information. It simply was not disclosed, and, therefore, there is a violation of Section (B)(4), an intentional or negligent failure to disclose a material fact that relates to the property, and it’s to the material facts I’ve been discussing. The Presenter then requested a 14-day suspension and a $4,000.00 penalty.

In his closing, counsel for Ms. Garceau argued that there was no enforceable declaration of restrictions and that the Property was not subject to a legal HOA under the Maryland Homeowners Association Act. He argued further that Ms. Garceau had no knowledge of the well contamination issue and that there was no evidence in the record to support her knowing it, and that the Buyers had contractually waived any recourse for water pollution in the sales contract. Ms. Gar- ³³⁹ ceau’s counsel emphasized that there was no contamination on the Property because every test had negative results. In rebuttal, the Presenter argued that contractual arguments were beside the point because MREC’s disciplinary power is not coextensive with contractual immunity.

F. New Evidence On June 15, 2011, counsel for Ms. Gareeau sent a letter to the four putative officers of the CCECA, stating that it was “[his] legal opinion that there is no valid formal Homeowner’s Association regulated by the Maryland Homeowners’ Association Act in the Cross Country Estates Development [and that i]t is further [his] legal opinion that there are no restrictive covenants binding upon owners of lots in the Cross Country Estates Subdivision.” In his letter, he stated that by acting as an HOA, the CCECA officers may be found liable for negligent misrepresentation and, if they continue to do so, they may be found liable for intentional misrepresentation. He further suggested they retain an attorney to explore whether there is a valid HOA governing the community. He then provided his reasons why there was no HOA, including (1) his investigations on SDAT; (2) the expiration of the 1975 Declaration of Restrictions; and (3) the defective nature of the 2006 Declaration. On June 29, 2011, the CCECA officers responded to Ms. Garceau’s counsel via letter, acknowledging that CCECA was not a valid HOA within the definition of the Maryland Homeowners Association Act, Maryland Code (1974, 2015 Repl.

Vol.), Real Property Article, § 11B-101: On behalf of the ... CCECA[ ], we are writing in response to your letter of June 15, 2011. Your letter raises issues that we were not aware of, so we sought the advice of legal counsel in order to determine our correct and current legal status. Based upon that consultation, and despite our good faith belief to the contrary, it appears that CCECA is a community association and not an official “homeowners” association.

In light of that fact, and again, despite our good faith belief to the contrary, it also appears ³⁴⁰ that the covenants and restrictions which were put into effect at the time that our neighborhood was established have expired and there are no current valid or enforceable restrictions in effect beyond those that would be imposed by county reputations. (Emphasis added). On July 12, 2011, Ms. Garceau’s counsel sent the June 15 and 29 letters to the Buyers, copying the MREC Presenter. He stated that this confirmed that there was no HOA and no valid or enforceable restrictions in effect in Cross Country Estates.

The letter then demanded that they dismiss the action against Ms. Garceau. Six days later, the Presenter sent the ALJ a letter informing him of the results of Ms. Garceau’s counsel’s continued research into the matter of whether the Property is subject to an HOA. G. The ALJ’s Proposed Decision On August 30, 2011, the ALJ issued his recommended decision. The ALJ stated that he would consider only the information presented at the hearing and not consider any information submitted post-hearing because neither party requested that the case be reopened for submission of further evidence.

First, the ALJ found that, in 2009, the Buyers retained Mr. Fischbein as their buyer’s agent and communicated to him “that they were specifically looking for property not covered by a homeowner’s association [ ] or a Declaration of Restrictions.” He also found that Mr. Fischbein made Ms. Garceau’s assistant, Jessica, aware of the Buyers’ reticence to purchase a home subject to an HOA; that Mr. Fischbein asked Jessica whether the Property was subject to an HOA; and that both Jessica and the Property’s listing indicated that the Property was not subject to an HOA. The opinion further provided that Ms. Garceau did not inform the Buyers that the Property was subject to an HOA or that a declaration of restrictions applied to the Property; and that, if the Buyers had known that the Property was subject to a declaration of restrictions, they ³⁴¹ would not have purchased the Property because they wanted to build a fence for their dogs on the Property. Next, the ALJ found that Ms. Garceau failed to provide the Buyers information concerning litigation against ExxonMobil regarding possible well contamination, and that this information was widely publicized in Fallston, where Ms. Garceau lives. The ALJ also noted that the Sellers were part of a lawsuit against ExxonMobil.

The ALJ further found that, three days after moving in, the Buyers “received information left at their home regarding a Cross Country Estates HOA, notice of restrictions and a request for $10.00 in annual association dues [and that t]he association also informed the [Buyers] that [they] were required to clear their fence plans with the association, which would then grant them a ‘permit’ for the fence.” As further findings of fact, the ALJ stated the following: 23. There exists a Declaration of Rights document, filed with the Harford County, Maryland Land Records Office on October 16, 2006, which purports to apply protective covenants and restrictions upon properties located within the subdivision of Cross Country Estates in Harford County. 24. The HOA is run by association officers, who charge a $10.00 annual fee as a prerequisite for voting rights in the organization. The association addresses matters such as the ... well water issue, disputes between neighbors and issues involving restrictions it enforces within the subdivision. 25.

The [Buyers] pay the annual HOA fee, retain voting rights in the association and consider themselves subject to the restrictions imposed by the Declaration of Restrictions recorded with the Harford County Land Records Office in 2006. 26. As of the date of settlement and up until the date of this hearing, the Property’s well has tested negative for contaminants. The ALJ then “f[ou]nd that the [M] REC has established that [Ms. Garceau] violated the [BOP] Article as well as the Code of Ethics.” Despite noting that “an issue exist[ed] with ³⁴² respect to the validity” of the 2006 Declaration, the ALJ found that the CCECA had held itself out as a legitimate HOA with the authority to enforce the declaration. And, despite the letter Ms. Garceau’s attorney received from the CCECA officers declaring that there is no valid HOA or declaration of restrictions, the ALJ stated that neither Ms. Garceau nor the Buyers have taken legal action to challenge the CCECA’s authority.

The ALJ accepted MREC’s position that this was not the proper forum to address whether “the HOA has the authority to enforce” the 2006 Declaration. Thus, the ALJ found, Ms. Garceau “had an obligation to disclose the existence of the HOA and [2006 Declaration], the existence of which were material facts” relating to the Property that Ms. Garceau knew or should have known. (Emphasis added). And, Ms. Garceau’s “failure to disclose the existence of the HOA and [2006 Declaration] constitute^] a violation of [BOP § ] 17-322(b)(4).” In regard to the well testing issue, the ALJ found that Ms. Garceau knew about the leak and the subsequent litigation.

The ALJ found that negative well tests do not guarantee the lack of future contamination, despite only negative tests up to that point. On this issue, the ALJ stated the following: I find that the nondisclosure of the litigation and well testing constitutes a violation of [BOP § ] 17-322(b)(4) ... due to the intentional or negligent failure to disclose material information which [Ms. Garceau] knew. Similarly, the nondisclosure of these facts is conduct that demonstrates bad faith, in violation of [BOP § ] 17-822(b)(26)[J Finally, I also find that [Ms. Garceau] violated COMAR 09.11.02.01 A and B because she has an obligation to remain informed of matters affecting real estate in the community and she failed to disclose[ ] the pending lawsuits and the contamination issue (regarding nearby properties) or obtain more information about the latter. The ALJ then considered the factors listed in BOP § 17- ³⁴³ 322(c) 12 to determine the recommended sanction for Ms. Gar-ceau.

With respect to Ms. Garceau’s failure to disclose “the existence of an HOA,” the ALJ opined that (1) the violation was serious because the Buyers purchased the home and (2) were now “subject to restrictions they were hoping to avoid,” but that Ms. Garceau’s failure to disclose was not deliberate. In regard to Ms. Gareeau’s failure to disclose the gas leak, the ALJ opined that it (1) was “likewise a serious violation” because nearby properties experienced contamination and (2) the Property may experience future contamination, and “[t]he fact that many property owners in the subdivision, including the former owners of the Property, are involved in a class action suit against ExxonMobil, negatively impacts property values in the subdivision.” The ALJ added that, (3) “regardless of whether the Complainants’ water is currently contaminated,” Ms. Garceau’s failure to disclose “demonstrate^] a lack of good faith.” The ALJ noted that the Presenter established “no history of violations by [Ms. Garceau].” Considering these factors, the ALJ recommended a seven-day suspension and a $3,000.00 monetary penalty. G. MREC’s Proposed Order and Ms. Garceau’s Exceptions to It On October 17, 2011, MREC issued its proposed order, adopting the ALJ’s findings of fact, but amending its conclusions of law to state that Ms. Garceau was subject to sanction because she violated BOP §§ 17—322(b)(4), (25), and (33) and COMAR 09.11.02.02A and B. MREC also amended the sanction upward, from a suspension of seven days to 14 days, and from a monetary penalty of $3,000.00 to $4,000.00. MREC stated that it believed Ms. Garceau’s conduct warranted a higher penalty because she “failed to provide material information” to the Buyers on two issues: “the existence of an ³⁴⁴ HOA and the ongoing problems with well contamination in the area.” MREC found that Ms. Garceau was “inaccurate” when she informed the Buyers that there was no HOA and that her response to them was inconsistent with when she told Ms. Swift in 2008 that her property in the same community was subject to an HOA.

Ms. Garceau’s belief that the Buyers could successfully challenge the CECCA, MREC found, was a legal conclusion, not provided at the time of the sale. MREC also found, in regard to possible well contamination, that the Fallston gasoline leak was well known in the community, covered extensively in the media, and there was a pending-class action lawsuit brought by local residents. Ms. Garceau “was aware of the leak and the litigation[, y]et she failed to disclose it” to the Buyers. MREC found that “[t]his was in blatant disregard of her duties as a real estate licensee and demonstrated at best incompetence.” Although the ALJ found that Ms. Garceau’s failure to disclose the HOA was not deliberate, in part because she relied on the help of several assistants, MREC determined that the ALJ interpreted the licensing statute improperly, and that licensees have a statutory duty to disclose “all material information,” even if the Buyer’s agent has not asked specifically.

Thus, Ms. Garceau was required to disclose the HOA because she “had both actual and constructive knowledge of it.” MREC concluded that “As a real estate licensee since 1986, and a broker since 2008, [Ms. Garceau] was well aware of her duty to disclose information to the [Buy]ers. She failed in two significant respects to fulfill that duty. [MREC] cannot find any good faith in her conduct.” Ms. Garceau filed exceptions to MREC’s proposed order on November 8, 2011, arguing that the conclusions in the recommendation and proposed order were both factually and legally erroneous. Ms. Garceau argued, among other things, that disclosing the existence of an organization purporting to be an HOA would be a breach of the duty to her clients, the Sellers, not a breach of duty to the Buyers. She also insisted that the ³⁴⁵ record contained no evidence that she knew about any well testing or environmental problems.

She contended that the Sellers never told her about ExxonMobil’s well testing because they did not think such information was important. Ms. Gar-ceau maintained that the Buyers assumed all liability for water problems because they assumed express responsibility for such in the sales contract and that she complied with all disclosure requirements. On January 3, 2012, Ms. Garceau filed a request for leave to introduce additional evidence. Ms. Garceau sought to introduce the evidence her counsel had discovered after the hearing before the ALJ, including the invalidity of the CCECA as an HOA; evidence that the purported HOA had subsequently disbanded; as well as the appraisal and title policy issued to the Buyers, neither of which stated that an HOA existed.

She also sought to introduce evidence that the Andrea Swift listing was changed by an associate, without Ms. Garceau’s knowledge. Finally, Ms. Garceau sought to introduce evidence that counsel for the class action included property owners of all properties in the area as potential class members “without their knowledge or consent” and that the putative class was disbanded in October 2011. Ms. Garceau claimed that this new evidence would demonstrate that she did not have knowledge of the environmental problems concerning the water. An exceptions hearing was held on January 18, 2012.

The Commission declined to accept the new evidence because it stated that Ms. Garceau could have discovered this evidence before the original hearing. On April 17, 2012, the Commission issued its final order, upholding its proposed order. MREC then considered the factors listed in BOP § 17-322(c) for the assessment of a monetary penalty, and, once again, imposed a 14-day suspension and a $4,000.00 fine. H. Circuit Court Proceedings, Remand, and More Circuit Court Proceedings On May 11, 2012, Ms. Garceau filed a petition for judicial review in the Circuit Court for Harford County.

On March 31, ³⁴⁶ 2014, the circuit court remanded the case to MREC to consider the new evidence it had previously declined to consider because, the court stated, “[t]here must be some degree of flexibility and a sense of fairness that is used when any rule or policy is implemented or interpreted.” The court found that the new evidence clearly shows that there were no enforceable restrictions on the property and there is no properly organized or existing homeowner’s association with any authority to create or impose restrictions on the home. To simply ignore these facts and impose a sanction based on a finding to the contrary is simply wrong. The court held as a matter of law that MREC erred in not considering the new evidence and remanded the case back to MREC. 13 On May 29, 2014, MREC issued its supplemental opinion and final order, stating that it considered the new evidence that Ms. Garceau sought to introduce. Nonetheless, MREC imposed the same 14-day suspension and a $4,000.00 fine.

MREC concluded that, regardless of whether the HOA was legally operating as an HOA, it was functioning under a good faith belief that there was such an organization throughout all relevant times in this case. In MREC’s ruling, the basis of its earlier decision relating to the HOA and declaration of restrictions became much broader and less precise, relying, for example, on the existence of an “association” rather than an HOA: Based upon a preponderance of the evidence and testimony presented, [MREC] concludes that: 1) [Ms. Garceau] was aware that the [Buyers] did not wish to purchase a property which was subject to a homeowner’s association or community association or to any covenants or restric ³⁴⁷ tions such as those set forth in a 1975 Declaration of Restrictions or a 2006 Declaration of Restrictions by the CCECA filed in the Land Records of Harford County; 2) [Ms. Garceau] was aware of a Declaration of Restrictions which purported to apply protective covenants and restrictions on the properties situated in the Cross Country Estates development; 3) The CCECA was an active association which functioned as a homeowner’s association and enforced protective covenants and restrictions on the properties, including the subject property, which were situated in Cross Country Estates at all times relevant to this matter and until contacted by counsel for [Ms. Garceau] subsequent to hearing of this matter before an ALJ; ... (Emphasis added). MREC’s finding that the CCECA was an association that intended to function as an HOA apparently led to MREC’s conclusion that Ms. Garceau failed to disclose the existence of a material fact: ... 4) [Ms. Garceau] intentionally or negligently failed to disclose to the [Buyerls the existence of a material fact, i.e. the existence of an association which was enforcing protective covenants and restrictions set forth in a Declaration of Restrictions which the officers of the association believed were applicable to the Property the [Buyer]s were interested in purchasing; and 5) the [Buyers modified their plans for a fence based on the assertions of the CCECA that covenants/restrictions, set forth in a Declaration of Restrictions, applied to fences built in Cross Country Estates.

(Emphasis added). MREC’s ruling in regard to the possibility of well contamination remained, however, relatively similar to its prior determination. MREC found that regardless of whether or not the Sellers disclosed the class action or periodic testing of their well, Ms. Garceau “admitted that she was aware of the possible contamination of wells in the area because of a gasoline station leak.” Additionally, “due to her own participation in the class action lawsuit, the fact that she lived within a mile of the ³⁴⁸ subject Property, and media coverage of the possible contamination of wells in the area,” Ms. Garceau knew or should have known of the class action and possible contamination. Thus, MREC concluded, Ms. Garceau “should have disclosed these material facts to the [Buyers], but failed to do so.” Within 30 days of the order’s mailing, 14 Ms. Garceau filed a petition for judicial review in the Circuit Court for Harford County.

On September 14, 2015, the circuit court found that there may have been substantial evidence in the record to find that Ms. Garceau had violated the Maryland Real Estate Broker’s Act, but it found the imposition of the sanction to be arbitrary and capricious. The court stated that it believed that MREC “inadequately addresse[d] or considered] the specific facts for which this case was remanded.” The court also determined that MREC failed to consider the factors for monetary penalties that BOP § 17-322 prescribes. As such, the court ordered the 14-day suspension to be set aside, but left the $4,000.00 fine in place. On October 5, 2015, MREC timely noted an appeal, and Ms. Garceau followed suit by filing a cross-appeal on October 13, 2015.

They present the following general questions, which we have consolidated and rephrased: 1. Is MREC’s decision that Ms. Garceau violated the Maryland Real Estate Broker’s Act and COMAR 09.11.02.01A legally correct, supported by substantial evidence, and compliant with the requirements of due process? 2. Was MREC’s choice of sanction—a $4,000.00 civil monetary penalty and a fourteen-day license suspension— arbitrary or capricious? [ 15 ] ³⁴⁹ DISCUSSION Judicial review of the action of an administrative agency is limited to determining whether “there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.” Regan v. Bd. of Chiropractic Exam’rs, 120 Md.App. 494, 508 , 707 A.2d 891 (1998). If the facts in the record allow reasoning minds to reach the same determination as the agency, “ ‘then [the determination] is based upon substantial evidence, and the court has no power to reject that conclusion.’ ” Maryland State Bd. of Nursing v. Sesay, 224 Md.App. 432, 457 , 121 A.3d 140 (2015) (quoting Liberty Nursing Ctr., Inc. v. Dep’t of Health & Mental Hygiene, 330 Md. 433, 443 , 624 A.2d 941 (1993)).

However, in order that a court may “perform properly its examination function, an administrative decision must contain factual findings on all the material issues of a case and a clear, explicit statement of the agency’s rationale.” Fowler v. Motor Vehicle Admin., 394 Md. 331, 342 , 906 A.2d 347 (2006) (citation omitted; emphasis added). As the Court of Appeals cautioned in Bereano v. State Ethics Commission, “where an administrative ... agency draws impermissible or unreasonable inferences and conclusions ... or where an administrative agency’s decision is based on an error of law, we owe the ³⁵⁰ agency’s decision no deference.” 403 Md. 716, 756 , 944 A.2d 538 (citation omitted; ellipses in original). When an agency is acting in a discretionary capacity, such as when it fashions a sanction, then the standard is more deferential than either substantial evidence or de novo review. An agency’s discretion in fashioning a sanction should only be overturned if the decision is arbitrary or capricious.

Maryland Aviation Admin. v. Noland, 386 Md. 556, 581 , 873 A.2d 1145 (2005). The arbitrary or capricious standard is “highly deferential.” Maryland Dep’t of Env’t v. Anacostia Riverkeeper, 447 Md. 88, 121 , 134 A.3d 892 (2016) (citation omitted). I. Due Process At the outset we address Ms. Garceau’s argument that the proceedings in this case did not afford her due process. Ms. Gareeau states that MREC did not provide her due process because it originally