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Amber Financial Group, LLC v. Lopez

Intermediate Court of Appeals of Hawaii

December 31, 2013

AMBER FINANCIAL GROUP, LLC, JULIAN KOZAR, TRENA PAPAGEORGE, and PETTRICE GAMBOL, Respondents/Appellants-Appellants,
v.
KEALI'I S. LOPEZ, DIRECTOR, DEPARTMENT OF COMMERCE AND CONSUMER AFFAIRS, - Agency/Appellee-Appellee,

NOT FOR PUBLICATION IN WEST'S HAWAI'I REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CIVIL NO. 09-1-2770-11(KKS)).

Shawn A. Luiz for Respondents/Appellants-Appellants.

Patrick K. Kelly, Regulated Industries Complaints Office, Department of Commerce and Consumer Affairs, for Agency/Appellee-Appellee.

Nakamura, C.J., Fujise and Leonard, JJ.

SUMMARY DISPOSITION ORDER

In this secondary appeal, Respondents/Appellants- Appellants Amber Financial[1] Group, LLC (AFG), Julian Kozar (Kozar), Trena Papageorge (Papageorge), and Pettrice Gambol (Gambol) {collectively, Appellants)[2] appeal from the August 25, 2010 Final Judgment[3] entered by the Circuit Court of the First Circuit (Circuit Court) in favor of the Director (Director), Department of Commerce and Consumer Affairs (DCCA).

On appeal before this court, Appellants challenge the Circuit Court's affirmation of the Director's affirmation of the DCCA hearing officer's decision to revoke their licenses. In particular, Appellants argue that (1) it was error to allow AFG, a corporate entity, to appear without counsel in legal proceedings; (2) judgments against a corporate entity are not judgments against individuals in their individual capacity, and that the term "disciplinary proceeding" on the license renewal application was vague and ambiguous; (3) the five year revocation was excessive; and (4) they were entitled to a trial by jury on the portion of the Order requiring payment of restitution to third parties prior to re-application.

After a careful review of the issues raised and the arguments made by the parties, the applicable authority and the record, we affirm the Circuit Court's judgment as to all Appellants, except for Gambol, for the following reasons:

1. AFG argues that, based on Oahu Plumbing & Sheet Metal, Ltd. v. Kona Constr., Inc., 60 Haw. 372, 374, 590 P.2d 570, 572 (1979), the hearing officer's decision must be vacated because AFG was not represented by counsel in proceedings before the hearing officer. However, Oahu Plumbing involved a corporation's representation in court proceedings. 60 Haw. at 372, 590 P.2d at 571. More to the point, Hawaii Revised Statutes (HRS) § 91-9(b)(5) (2012), provides that, in a contested case hearing,

any party may retain counsel if the party so desires and . . . an individual may appear on the individual's own behalf, or a member of a partnership may represent the partnership, or an officer or authorized employee of a corporation or trust or association may represent the corporation, trust, or association.

(Emphasis supplied.) Kozar and Papageorge were officers of AFG, and Kozar represented that he was appearing at the hearing on behalf of AFG. Thus, AFG was properly represented before the hearing officer.

2. Appellants argue that the five civil judgments noted by the hearing officer were entered against AFG only, and thus the individual Appellants were not required to report these judgments in their respective applications for license renewal. While this may be so, the hearing officer's decision was also based on Appellants' failure to report that they had the instant disciplinary proceedings pending when they filed for renewal of their licenses. In the Petition for Disciplinary Action, Appellants were each named in their individual capacities in addition to AFG being named as a corporate entity. Regardless of their status as officers or mere employees of AFG, each Appellant in their individual capacity did in fact have "disciplinary proceedings pending" against them when they submitted their renewal forms.

3. Appellants argue that the term "Disciplinary Proceeding" as used on the Renewal Application was vague and . . ambiguous. Appellants are mistaken to the extent they believe the term was meant to include civil judgments. As the DCCA freely admits, "civil judgments are not disciplinary actions required to be reported on the renewal applications[.]"[4] Appellants1 argument is without merit.

4. Appellants argue that their punishment of a five-year license revocation was excessive. Initially, we note that there was no period of time set by the Director for Appellants' revocation. Although Appellants do not explain how they determined their revocation was for five years, HRS § 436B-21 (1993) provides that "[a] person may apply for a new license after five years from the effective date of the revocation[.]" Thus, the minimum duration of Appellants' revocation period is set by statute, not by the Director. As ...


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