     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               March 7, 2019

                                2019COA33

No. 17CA2388, Colorado Real Estate Commission v. Vizzi —
Administrative Law — Professions and Occupations — Real
Estate Brokers and Salespersons — Brokerage Relationships —
Transaction-brokers

     A division of the court of appeals considers whether a licensed

real estate broker can contract away his statutorily required

obligations as a transaction-broker under section 12-61-807(2),

C.R.S. 2018. Interpreting section 12-61-807(2) and related

provisions, the division determines that a transaction-broker’s

statutory duties are mandatory and cannot be contracted away.

     The division also concludes that the Colorado Real Estate

Commission’s discipline of the appellant broker for failing to

perform his statutory duties fell within the Commission’s statutory

authority and did not violate federal antitrust laws. The division

determines that the Commission’s decision not to disclose the
identity of the informant who brought appellant’s actions to the

Commission’s attention did not violate appellant’s due process

rights.

     Accordingly, the division affirms the Commission’s final order

disciplining appellant for failing to comply with the mandatory

duties of a transaction-broker under section 12-61-807(2).
COLORADO COURT OF APPEALS                                          2019COA33


Court of Appeals No. 17CA2388
Colorado Real Estate Commission
Case No. RC 2015-0013


Colorado Real Estate Commission,

Petitioner-Appellee,

v.

John J. Vizzi,

Respondent-Appellant.


                              ORDER AFFIRMED

                                   Division V
                           Opinion by JUDGE TERRY
                        J. Jones and Nieto*, JJ., concur

                          Announced March 7, 2019


Philip J. Weiser, Attorney General, Gina M. Simonson, First Assistant Attorney
General, Natalie L. Powell, Assistant Attorney General, Gina M. Cannan,
Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

Montgomery Little & Soran, PC, Nathan G. Osborn, Christopher T. Carry,
Greenwood Village, Colorado, for Respondent-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    Can a licensed real estate broker contract away his statutory

 obligations as a transaction-broker under section 12-61-807(2),

 C.R.S. 2018? We answer “no” to this question, and therefore affirm

 the final agency order of the Colorado Real Estate Commission

 disciplining a licensed real estate broker, John J. Vizzi, for failing to

 fulfill those statutory obligations. We also conclude that the

 Commission’s enforcement of that statute against Vizzi does not

 violate federal antitrust laws. As a result, we affirm the

 Commission’s order.

                            I. Factual Background

¶2    Vizzi entered into contracts in 2013 and 2014 with three

 clients to provide unbundled real estate brokerage services in

 exchange for a flat fee. In one instance, he contracted only to list

 the client’s property on the Multiple Listing Services (MLS) list. In

 two other instances, he contracted only to provide a yard sign, a

 lock box, and centralized showing services, and to list the properties

 on the MLS.

¶3    After an anonymous informant notified the Commission of

 Vizzi’s practices, it investigated. As a result, the Commission




                                     1
 charged Vizzi with failing to fulfill his statutory duties under section

 12-61-807(2) and sought to discipline him.

¶4    An Administrative Law Judge (ALJ) heard the case. She

 concluded that the duties listed in section 12-61-807(2) are

 mandatory and that Vizzi had not fulfilled them in any of the three

 transactions at issue. She therefore disciplined Vizzi under section

 12-61-113(1)(k), C.R.S. 2018, requiring him to take twelve hours of

 continuing education and levying a fine of $2000 plus the statutory

 surcharge. Although the Commission had sought public censure,

 the ALJ did not impose it.

¶5    Vizzi filed exceptions to the ALJ’s decision with the

 Commission. After hearing oral argument on the exceptions, the

 Commission issued a final agency order.

¶6    The Commission adopted the ALJ’s findings of fact and

 conclusions of law. It agreed with the ALJ’s ruling that Vizzi was

 required to provide to his clients all of the services listed in section

 12-61-807(2), and that he violated the provisions of section 12-61-

 113(1)(k) and (n) by entering into contracts that essentially

 disclaimed any responsibility to provide statutorily required

 services.


                                     2
¶7    The Commission modified the discipline imposed on Vizzi to

 include public censure. In doing so, the Commission relied on its

 issuance of a December 2010 position statement that said, in part:

 “A broker is not allowed to solely perform ‘additional’ services which

 require a real estate broker’s license . . . without providing the

 minimum duties required by single agency or transaction

 brokerage.” Dep’t of Regulatory Agencies, Div. of Real Estate, CP-36

 Commission Position on Minimum Service Requirements,

 https://perma.cc/6UZE-DY2T. Because the position statement

 was issued before Vizzi entered into the contracts at issue, the

 Commission concluded that he “should have known that the listing

 contracts he prepared in 2013 and 2014 were improper.”

                      II. Contentions Raised on Appeal

¶8    Vizzi maintains that he was permitted by statute to contract

 out of many of the duties imposed on transaction-brokers under

 section 12-61-807(2), and that the contracts in question

 successfully accomplished that goal.

¶9    Invoking the United States Supreme Court’s decision in North

 Carolina State Board of Dental Examiners v. Federal Trade

 Commission, 574 U.S. ___, 135 S. Ct. 1101 (2015), Vizzi asserts that


                                    3
  the Commission’s enforcement action against him violates federal

  antitrust law.

¶ 10   He argues that the Commission violated his due process rights

  by declining to disclose the identity of the person who notified the

  Commission of Vizzi’s actions in the questioned transactions.

¶ 11   And he contends that the Commission exceeded its statutory

  authority and thus violated his due process rights when it

  disciplined him more harshly than did the ALJ, and that its

  decision to do so was arbitrary and capricious.

¶ 12   For the reasons discussed below, we reject these contentions.

                               III. Legal Standards

¶ 13   We must sustain the Commission’s decision unless it is

  arbitrary or capricious, unsupported by the evidence, or contrary to

  law. Coffman v. Colo. Common Cause, 102 P.3d 999, 1005 (Colo.

  2004); see also § 24-4-106(7)(a), C.R.S. 2018 (On review of agency

  action, “[i]f the court finds no error, it shall affirm the agency

  action.”).

¶ 14   The issues in this appeal are governed by state statute.

  Statutory interpretation presents a question of law we review de

  novo. Gessler v. Colo. Common Cause, 2014 CO 44, ¶ 7. It is our


                                      4
  function to interpret statutes. § 24-4-106(7)(d) (“In all cases under

  review, the court shall determine all questions of law and interpret

  the statutory and constitutional provisions involved.”); El Paso Cty.

  Bd. of Equalization v. Craddock, 850 P.2d 702, 705 (Colo. 1993) (“An

  administrative agency’s construction [of a statute] should be given

  appropriate deference but is not binding on the court.”).

¶ 15    Judicial deference to an agency’s interpretation of its

  governing statute is appropriate when the statute is subject to

  different reasonable interpretations and the issue comes within the

  administrative agency’s special expertise. Huddleston v. Grand Cty.

  Bd. of Equalization, 913 P.2d 15, 17 (Colo. 1996).

¶ 16    Our review of statutory provisions is de novo. Cowen v.

  People, 2018 CO 96, ¶ 11. When interpreting a statute, our

  primary purpose is to ascertain and give effect to the General

  Assembly’s intent. Id. We start by examining the plain meaning of

  the statutory language. Id. We give consistent effect to all parts of

  the statute and construe each provision in harmony with the overall

  statutory design. Id., ¶ 13. Our construction must avoid or resolve

  potential conflicts and give effect to all legislative acts, if possible.

  Id.


                                       5
                    IV. Roles of Licensed Real Estate Brokers

¶ 17   Vizzi is licensed as a real estate broker, and it is uncontested

  that, in entering into the contracts in issue, he acted as a

  transaction-broker.

¶ 18   As pertinent here, “real estate broker” is defined as “any

  person . . . who, in consideration of compensation by fee,

  commission, salary, or anything of value . . . engages in . . .

  [l]isting, offering, attempting, or agreeing to list real estate, or

  interest therein, or improvements affixed thereon for sale, exchange,

  rent, or lease[.]” § 12-61-101(2)(a)(V), C.R.S. 2018.

¶ 19   Colorado law provides that a licensed real estate broker must

  act either as a single agent or as a transaction-broker in providing

  real estate services. § 12-61-803(1), C.R.S. 2018.

¶ 20   A single agent represents one party to a real estate

  transaction. § 12-61-802(4), C.R.S. 2018. Such an agent’s duties

  include exercising reasonable skill and care, presenting all offers in

  a timely manner, and disclosing known adverse material facts to

  the other party in a transaction. §§ 12-61-804 to -805, C.R.S.

  2018.




                                       6
¶ 21   Section 12-61-803(2) makes transaction-broker the default

  role for a real estate broker who has not entered into a single-

  agency written agreement with the represented party.

¶ 22   Transaction-brokers assist with a transaction but are not

  agents for any party. § 12-61-807(1). Though transaction-brokers

  share certain statutory duties that single agents have, such as the

  duty to present all offers in a timely manner, § 12-61-807(2)(b)(I),

  their role is more limited than that of a single agent.

¶ 23   Section 12-61-803(1) requires a transaction-broker to disclose

  the “general duties and obligations arising from that relationship” to

  the seller and the buyer pursuant to section 12-61-808, C.R.S.

  2018.

                   A. Mandatory Duties or Default Duties?

¶ 24   The statutory duties of transaction brokers are detailed in

  sections 12-61-807 to -808.

¶ 25   Vizzi interprets sections 12-61-807 and -808 together to mean

  that section 12-61-807(2) sets forth only default duties — not

  mandatory duties — for transaction-brokers. We disagree.

¶ 26   Section 12-61-802(6) defines “transaction-broker” as “a broker

  who assists one or more parties throughout a contemplated real


                                     7
  estate transaction with communication, interposition, advisement,

  negotiation, contract terms, and the closing of such real estate

  transaction without being an agent or advocate for the interests of

  any party to such transaction.” (Emphasis added.) The

  legislature’s use of the words “throughout” and “and” indicates that

  it intended a transaction-broker to assist in the entire transaction

  and to undertake each of the listed activities.

¶ 27   Section 12-61-807(2) sets out the duties of a transaction-

  broker. It provides that “[a] transaction-broker shall have the

  following obligations and responsibilities . . . .” Id. (emphasis

  added). Absent a clear indication of contrary legislative intent, the

  word “shall” in a statute generally indicates that the legislature

  intended the listed provisions to be mandatory. See DiMarco v.

  Dep’t of Revenue, Motor Vehicles Div., 857 P.2d 1349, 1352 (1993);

  cf. People v. Back, 2013 COA 114, ¶ 25 (concluding that, while the

  generally accepted meaning of “shall” is that it is mandatory, it can

  also mean “should” or “may” depending on legislative intent).

¶ 28   The provisions of the transaction-broker statutes indicate that

  the term “shall” in section 12-61-807(2) specifies mandatory duties.

  It would be illogical and would frustrate the legislature’s intent to


                                     8
  interpret the word “shall” as merely permissive, given the lengthy

  list of “obligations” in subsection (2) of the statute, including the

  requirement that a transaction-broker “comply with all

  requirements of this article and any rules promulgated pursuant to

  this article.” § 12-61-807(2)(c) (emphasis added).

¶ 29   The duties listed in section 12-61-807(2)(a)-(d) are numerous

  and broad. They are consistent with the wide array of activities

  contemplated in the definition of a transaction-broker in section 12-

  61-802(6). Further, the consistency between the statutory

  definition of a transaction-broker and the statutory duties that a

  transaction-broker “shall” have parallels the statutory definition of

  a single agent and the statutory duties that a single agent “shall”

  have. See § 12-61-802(4) (defining “single agent” as “a broker who

  is engaged by and represents only one party in a real estate

  transaction”); § 12-61-805 (using the word “shall” to describe the

  duties of a single agent). We construe these sections in light of each

  other. See Krol v. CF & I Steel, 2013 COA 32, ¶ 15 (reviewing court

  must give consistent, harmonious, and sensible effect to all

  language of a statute).




                                      9
¶ 30   The General Assembly declared its intent in creating this

  statutory scheme as follows:

            The general assembly finds, determines, and
            declares that the public will best be served
            through a better understanding of the public’s
            legal and working relationships with real estate
            brokers and by being able to engage any such
            real estate broker on terms and under
            conditions that the public and the real estate
            broker find acceptable. This includes engaging
            a broker as a single agent or transaction-
            broker. Individual members of the public
            should not be exposed to liability for acts or
            omissions of real estate brokers that have not
            been approved, directed, or ratified by such
            individuals. Further, the public should be
            advised of the general duties, obligations, and
            responsibilities of the real estate broker they
            engage.

  § 12-61-801(1), C.R.S. 2018 (emphasis added).

¶ 31   Though the legislature emphasized the importance of the

  public’s ability to engage real estate brokers on terms that both the

  public and real estate brokers “find acceptable,” it also limited that

  ability. There are only two roles for which the public can engage a

  real estate broker: single agent or transaction-broker. See § 12-61-

  803(1).

¶ 32   The statutes do not say that the public can engage a real

  estate broker to provide unbundled brokerage services, or in any


                                    10
  manner that the broker and customer might find mutually

  acceptable.

¶ 33   Vizzi argues that the duties listed in section 12-61-807 are

  mere “defaults,” and that a broker can contract for the performance

  of only certain limited duties. We are not persuaded. If the

  transaction-broker duties in section 12-61-807 — and the parallel

  single agent duties in section 12-61-805 — were mere defaults, a

  transaction-broker or a single agent would be able to contract out of

  the required statutory duties and, in essence, cease acting as a

  transaction-broker or single agent as defined by statute.

¶ 34   The ALJ found that in entering into certain contracts he

  drafted, Vizzi “intended not to act as a transaction-broker,” and

  manifested that intent by inserting language into the contracts

  disclaiming the duties of such a broker. We will not disturb those

  findings because they are supported by the record.

¶ 35   Allowing Vizzi to disclaim the role of transaction-broker would

  contravene the statutory scheme. See § 12-61-801. The relevant

  statutes were drafted to create the role of transaction-broker and

  distinguish it from the role of single agent, and not to enable

  licensed real estate professionals to avoid the statutorily required


                                    11
  duties of a transaction-broker. See Hoff & Leigh, Inc. v. Byler, 62

  P.3d 1077, 1078 (Colo. App. 2002) (discussing the legislative history

  and purpose of sections 12-61-801 to -810); see also §§ 12-61-

  801, -803.

                         B. Section 12-61-808(2)(a)(III)


¶ 36   In arguing that the section 12-61-807(2) duties are merely

  defaults, and are not strictly required, Vizzi points to section 12-61-

  808(2)(a)(III), which covers the disclosure of contractual obligations

  that transaction-brokers undertake.

¶ 37   Section 12-61-808(2)(a)(III) provides, “[i]f the transaction-

  broker undertakes any obligations or responsibilities in addition to

  or different from those set forth in section 12-61-807, such

  obligations or responsibilities shall be disclosed in a writing which

  shall be signed by the involved parties.” (Emphasis added.)

¶ 38   Vizzi points us to Wolford v. Pinnacol Assurance, 107 P.3d 947,

  951 (Colo. 2005), which says that courts should interpret statutes

  to avoid rendering words redundant or superfluous. Based on this

  proposition, he argues that the Commission’s interpretation that he

  could not modify the duties set out in section 12-61-807 would



                                    12
  impermissibly render superfluous the phrase “different from” in

  section 12-61-808(2)(a)(III). According to Vizzi, section 12-61-

  808(2)(a)(II) modifies section 12-61-807(2) to allow an agent to enter

  into an agreement to provide fewer services than those enumerated

  in section 12-61-807. This interpretation is not supported by the

  statute.

¶ 39   Could the legislature have intended to allow a transaction-

  broker to contract his way out of having to perform the required

  duties that the legislature — with great specificity — enumerated in

  section 12-61-807(2)? Such a reading is highly implausible.

¶ 40   We acknowledge that the “different from” language in section

  12-61-808(2)(a)(III) distinguishes that statute from the language of

  section 12-61-803, which defines relationships between brokers

  and the public. Section 12-61-803(5) says, “[n]othing contained in

  this section shall prohibit the public from entering into written

  contracts with any broker which contain duties, obligations, or

  responsibilities which are in addition to those specified in this part

  8.” (Emphasis added.)

¶ 41   But we do not interpret the “different from” language in

  section 12-61-808(2)(a)(III) as permitting a transaction-broker to


                                    13
  contract to provide fewer services than those listed in section 12-

  61-807. Instead, the legislature intended the services enumerated

  in section 12-61-807 to be mandatory. We reach this conclusion

  for the following reasons.

¶ 42   As the Commission argues, section 12-61-808(2)(a)(III) —

  addressing when a transaction-broker “undertakes any obligations

  or responsibilities . . . different from those set forth in section 12-

  61-807” — does not refer specifically to the mandatory duties listed

  in section 12-61-807(2). Thus, contrary to Vizzi’s argument, section

  12-61-808(2)(a)(III) would not allow a broker to contract out of

  mandatory statutory duties.

¶ 43   Instead, we construe the “different from” language of section

  12-61-808 to refer to three provisions of section 12-61-807:

  subsection (3) (“information shall not be disclosed by a transaction-

  broker without the informed consent of all parties”); subsection (4)

  (a “transaction-broker has no duty to conduct an independent

  inspection of the property” or “to independently verify the accuracy

  or completeness of statements made by the seller, landlord, or

  independent inspectors”); and subsection (5) (a “transaction broker

  has no duty to conduct an independent investigation of the buyer’s


                                     14
  or tenant’s financial condition or to verify the accuracy or

  completeness of any statement made by the buyer or tenant”).

¶ 44   Thus, the parties may alter those default provisions by

  requiring the broker to take on duties in addition to those listed.

  See § 12-61-803(5) (“Nothing contained in this section shall prohibit

  the public from entering into written contracts with any broker

  which contain duties, obligations, or responsibilities which are in

  addition to those specified in this part 8.”).

¶ 45   For example, subsection (3) would allow certain information to

  be disclosed by a transaction-broker if all parties provide informed

  consent. If — but only if — such consent is given, the transaction-

  broker can deviate from the default statutory duty of nondisclosure

  for the following matters detailed in that subsection:

             The following information shall not be disclosed
             by a transaction-broker without the informed
             consent of all parties:
                   (a) That a buyer or tenant is willing to pay
             more than the purchase price or lease rate
             offered for the property;
                   (b) That a seller or landlord is willing to
             accept less than the asking price or lease rate
             for the property;
                   (c) What the motivating factors are for
             any party buying, selling, or leasing the
             property;



                                     15
                  (d) That a seller, buyer, landlord, or
             tenant will agree to financing terms other than
             those offered;
                  (e) Any facts or suspicions regarding
             circumstances which may psychologically
             impact or stigmatize any real property
             pursuant to section 38-35.5-101, C.R.S.; or
                  (f) Any material information about the
             other party unless disclosure is required by
             law or failure to disclose such information
             would constitute fraud or dishonest dealing.

  § 12-61-807(3)(a)-(f) (emphasis added).

¶ 46   If the transaction-broker entered into an agreement that

  allowed disclosure of any of the matters listed above, the broker

  would, indeed, be permissibly contracting to “undertake[] any

  obligation[] or responsibilities . . . different from” the default

  responsibility of nondisclosure of those matters “set forth in section

  12-61-807.” § 12-61-808(2)(a)(III).

¶ 47   Moreover, section 12-61-808 deals not with a broker’s duties,

  but only with required disclosures. As a result, an interpretation of

  section 12-61-808 as somehow modifying the required duties set

  forth in section 12-61-807 would frustrate the legislature’s intent.

¶ 48   And section 12-61-808(2)(a)(III) provides that if responsibilities

  different from those listed in 12-61-807 are engaged in, “such

  obligations or responsibilities shall be disclosed.” (Emphasis added.)


                                      16
  The italicized language would make no sense if the broker’s

  statutory obligations or responsibilities were being eliminated. It

  only makes sense if obligations or responsibilities are being added

  to those required by statutes.

¶ 49    As the ALJ and the Commission noted, Vizzi’s interpretation

  would also lead to absurd results, by, for example, allowing him to

  contract out of the statutory mandate to comply with “any

  applicable federal, state, or local laws, rules, regulations, or

  ordinances including fair housing and civil rights statutes or

  regulations.” See § 12-61-807(2)(d); see also Whitman v. Am.

  Trucking Ass’ns, 531 U.S. 457, 468 (2001) (Legislatures do not

  “alter the fundamental details of a regulatory scheme in vague

  terms or ancillary provisions.”); Asphalt Specialties Co. v. City of

  Commerce City, 218 P.3d 741, 746 (Colo. App. 2009) (A court “will

  not construe statutes or ordinances in such a manner as to

  frustrate their purposes or lead to an absurd or unreasonable

  result.”).

¶ 50    We conclude that the provisions of section 12-61-808 do not

  permit a broker to contract away any of the required statutory

  duties.


                                     17
                 V. Support for Commission’s Determination

¶ 51   In light of our construction of the statutory provisions

  discussed above, we conclude that the record supports the

  Commission’s adoption of the ALJ’s findings that Vizzi violated

  sections 12-61-113(1)(k), 12-61-113(1)(n), and 12-61-803(1), and

  we therefore uphold the Commission’s determination to discipline

  Vizzi.

                           VI. Federal Antitrust Law

¶ 52   Citing Dental Examiners, 574 U.S. ___, 135 S. Ct. 1101, Vizzi

  argues here, as he did below, that the Commission’s policy

  prohibiting the provision of limited real estate services violates

  federal antitrust law. According to Vizzi, “the Commission’s

  enforcement of ‘minimum services’ does not stem from formal

  rulemaking or statute” but merely from an “unenforceable position

  statement,” apparently referencing the Commission’s “Position on

  Minimum Service Requirements.” See Dep’t of Regulatory Agencies,

  Div. of Real Estate, CP-36 Commission Position on Minimum

  Service Requirements. He argues that the Commission is

  “dominated by market participants — three real estate brokers and

  two representatives of the public at large,” and that, under Dental


                                     18
  Examiners, the Commission’s policy violates federal antitrust laws.

  We consider and reject these arguments.

                            A. Legal Standards

¶ 53   The Supreme Court in Parker v. Brown, 317 U.S. 341, 350-51

  (1943), “interpreted the antitrust laws to confer immunity on

  anticompetitive conduct by the States when acting in their

  sovereign capacity.” Dental Examiners, 574 U.S. at ___, 135 S. Ct.

  at 1110. A state legislature may delegate the power to regulate a

  profession to a state agency on which a controlling number of

  decision-makers are active market participants in that profession,

  and, in some cases, the actions of that state agency will be immune

  to federal antitrust law. See id. at ___, 135 S. Ct. at 1111.

¶ 54   To determine whether such a state agency’s actions are

  considered the actions of the state in its sovereign capacity and

  thus shielded from federal antitrust law, we apply the two-part test

  set forth in California Retail Liquor Dealers Ass’n v. Midcal

  Aluminum, Inc., 445 U.S. 97, 100 (1980). Dental Examiners, 574

  U.S. at ___, 135 S. Ct. at 1111-12. Under the Midcal test, a state

  agency’s allegedly anticompetitive conduct will be shielded by state-

  action immunity from federal antitrust law if, “first, the State has


                                    19
  articulated a clear policy to allow the anticompetitive conduct, and

  second, the State provides active supervision of [the]

  anticompetitive conduct.” Dental Examiners, 574 U.S. at ___, 135

  S. Ct. at 1112 (quoting Fed. Trade Comm’n v. Ticor Title Ins. Co., 445

  U.S. 621, 631 (1992)).

¶ 55   Midcal’s clear articulation requirement is satisfied “where the

  displacement of competition [is] the inherent, logical, or ordinary

  result of the exercise of authority delegated by the state

  legislature. In that scenario, the State must have foreseen and

  implicitly endorsed the anticompetitive effects as consistent with its

  policy goals.” Fed. Trade Comm’n v. Phoebe Putney Health Sys.,

  Inc., 568 U.S. 216, 229 (2013). Midcal’s active supervision

  requirement demands “realistic assurance that a private party’s

  anticompetitive conduct promotes state policy, rather than merely

  the party’s individual interests.” Patrick v. Burget, 486 U.S. 94, 101

  (1988). The active supervision requirement also mandates that “the

  State exercise ultimate control over the challenged anticompetitive

  conduct.” Id.




                                    20
                               B. Analysis

¶ 56   We conclude that the Commission’s enforcement of the section

  12-51-807(2) duties against Vizzi satisfies both the clear

  articulation and active supervision requirements described in

  Midcal. Such enforcement lies within the bounds of the state’s

  statutory scheme and is properly considered state sovereign action,

  shielded from federal antitrust law.

¶ 57   The “clear articulation” prong is met by section 12-61-802(6),

  which defines “transaction-broker”; section 12-61-801, which sets

  out the General Assembly’s policy goals in regulating transaction-

  brokers; and section 12-61-807, which sets out mandatory

  obligations for transaction-brokers. Notably, by setting out

  mandatory duties, section 12-61-807(2) precludes transaction-

  brokers from providing real estate services that are more limited

  than those required by statute. We thus conclude that the General

  Assembly has “foreseen and implicitly endorsed” the prohibition of

  practices engaged in by Vizzi here. See Phoebe Putney Health Sys.,

  568 U.S. at 229.

¶ 58   The “active supervision” prong is met by section 12-61-

  101(2)(a), which defines what constitutes the practice of a real


                                    21
  estate broker, and section 12-61-113, which authorizes the

  Commission to investigate and censure licensed real estate brokers

  for violations of state license laws. Together, these sections give a

  “realistic assurance” that the Commission, in disciplining Vizzi for

  violating the section 12-61-807(2) duties, acted within its statutory

  purview and thus to promote state policy. See Burget, 486 U.S. at

  100.

¶ 59     In Dental Examiners, the Supreme Court based its decision on

  a lack of proof indicating that the state legislature intended North

  Carolina’s Board of Dental Examiners to have oversight of tooth

  whitening, 574 U.S. at ___, 135 S. Ct. at 1116, and the Court’s

  concern that the Board’s action may have been motivated by

  anti-competitive animus, id. at ___, 135 S. Ct. at 1114 (“When a

  State empowers a group of active market participants to decide who

  can participate in its market, and on what terms, the need for

  supervision is manifest.”).

¶ 60     The considerations that motivated the Supreme Court’s

  decision in that case are not present here.

¶ 61     First, Vizzi’s actions fell within the Commission’s statutory

  purview. It was uncontested that Vizzi’s actions, such as posting


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  properties on the MLS, constituted the practice of a real estate

  broker. It was also uncontested that the Commission’s statutory

  purview is the regulation of the practice of real estate brokers. In

  contrast, in Dental Examiners, it was unclear whether tooth

  whitening constituted the practice of dentistry and, thus, whether

  tooth whitening fell within the statutory purview of North Carolina’s

  Board of Dental Examiners.

¶ 62   Second, unlike in Dental Examiners, there is no support in the

  record for the notion that the Commission’s enforcement actions

  were motivated by anticompetitive animus.

¶ 63   Thus, Dental Examiners is simply inapposite.

¶ 64   For two reasons, we reject Vizzi’s conclusory argument that

  “the Commission’s position conflicts with the Department of

  Justice’s interpretation of Colorado law.” First, we see no reason

  why, even if Vizzi’s contention is true, any such interpretation of

  Colorado law would be binding on us. Second, Vizzi does not

  explain this contention and instead cites only the written exceptions

  he filed to the Commission’s decision. See People v. Diefenderfer,

  784 P.2d 741, 752 (Colo. 1989) (it is the duty of counsel for the

  appealing party to inform the reviewing court as to the specific


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  errors relied on, as well as the grounds, supporting facts, and

  authorities therefor).

¶ 65   We thus conclude that Vizzi has not established a violation of

  federal antitrust law.

                           VII. Anonymous Complainant

¶ 66   Vizzi next maintains that the ALJ violated his due process

  rights by denying his motion to compel disclosure of the identity of

  the anonymous complainant. We are not persuaded.

¶ 67   We review discovery rulings for an abuse of discretion. Silva v.

  Basin W., Inc., 47 P.3d 1184, 1188 (Colo. 2002).

¶ 68   Vizzi has not shown how the complainant’s identity was

  relevant to his ability to defend against the Commission’s charges.

  Vizzi was given notice of all of the Commission’s witnesses and

  exhibits — the totality of evidence which supported the charges

  against him. Cf. Copley v. Robinson, 224 P.3d 431, 436 (Colo. App.

  2009) (resident’s due process rights were violated where he was

  denied a gun permit on a basis unknown to him at the time of his

  hearing).

¶ 69   The ALJ’s initial decision and the Commission’s final judgment

  stated the grounds, law, and reasoning for their respective


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  decisions, which did not rely on anything extraneous to the record.

  Cf. id. (resident’s due process rights were violated where sheriff’s

  summary denial of his gun permit stated no grounds, facts, law, or

  reasoning to support the denial of the permit). We thus conclude

  that the Commission did not err in upholding the ALJ’s denial of

  Vizzi’s motion to compel disclosure of the anonymous complainant.

  See In re Dist. Court, 256 P.3d 687, 691 (Colo. 2011).

                      VIII. Imposition of Public Censure

¶ 70   Vizzi argues that the Commission exceeded its statutory

  authority and thus violated his due process rights when it imposed

  public censure after the ALJ had imposed only a fine and

  continuing education. Alternatively, he argues that the

  Commission’s decision to impose public censure, given the ALJ’s

  choice not to, was arbitrary and capricious. We disagree with these

  contentions.

¶ 71   In Colorado Real Estate Commission v. Hanegan, 947 P.2d 933,

  935-36 (Colo. 1997), the Colorado Supreme Court upheld the

  Commission’s imposition of public censure of a real estate broker

  after an ALJ, in his initial decision, had imposed only a fine. The

  Hanegan court concluded that, “[a]s long as the record as a whole


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  provides sufficient evidence that the penalty is not manifestly

  excessive in relation to the misconduct and the public need, the

  penalty will be upheld.” Id. at 937. There, the sanctioned broker

  was one of only a few brokers to fail to take a required eight-hour

  course. Id. at 934.

¶ 72   Vizzi violated his statutory duties multiple times after the

  Commission’s December 2010 position statement put him on notice

  that the listing contracts he prepared in 2013 and 2014 were

  improper.

¶ 73   Applying Hanegan, we conclude that the Commission acted

  within its statutory authority by imposing a sanction beyond that

  imposed by the ALJ, and that the Commission’s sanction bore some

  relation to Vizzi’s misconduct and to the needs of the public. See

  id. at 936-37; see also § 24-4-105(15)(b), C.R.S. 2018 (granting

  Commission authority to “affirm, set aside, or modify the order or

  any sanction or relief entered therein, in conformity with the facts

  and the law”).

¶ 74   We reach this conclusion even though the Commission did not

  file exceptions to the ALJ’s initial decision, because Vizzi’s sanction

  was still an issue presented by the record. See § 24-4-105(15)(a)


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  (For administrative appeals, the scope of review is “within the scope

  of the issues presented on the record.”); cf. Cornell v. State of Colo.

  Bd. of Pharmacy, 813 P.2d 771, 772-73 (Colo. App. 1990) (where

  the Colorado State Board of Pharmacy increased the disciplinary

  sanction on a pharmacist after the ALJ’s initial decision, it did not

  exceed its jurisdiction, even though the agency did not file

  exceptions).

¶ 75   And the public censure penalty was sought in the original

  charge against Vizzi. Thus, he had a full and fair opportunity to

  argue about the appropriateness of this penalty.

                                 IX. Conclusion

¶ 76   The order is affirmed.

       JUDGE J. JONES and JUDGE NIETO concur.




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