Virginia Board of Auctioneers May Take Action Against an Auctioneer or Auctioneer’s Firm With an Affirmative Vote of a Majority of the Members Serving on the Board

The Court of Appeals of Virginia held that the Board of Auctioneer is authorized to take action against any auctioneer or auction firm although it lacks the statutory required numbers of members.  The court found that the legislative purpose of the Virginia Board of Auctioneers (Board) would be obviated if transient vacancies were permitted to impair the Board's ability to perform its duties.  
    
In Khan v. Commonwealth, 42 Va. App. 469 (Virginia 2004), the Board imposed monetary penalties on Azam Mohammad Khan, a licensed auctioneer, and Park Royal Galleries Ltd , a licensed auction firm (“Appellants”) based on a complaint filed with the Department of Professional and Occupational Regulation. The Board also suspended the auctioneer’s license for one year.  Appellants moved to the trial court which affirmed the Board’s decision
    
Appellants, relying on §§ 54.1-200 and 54.1-602(A) pointed out that the Board could not take any action and impose sanctions on the Appellants because the Board consisted of fewer than five members. Khan 42 Va. App .at 475. 
 
Section 54.1-200 of the Virginia Code provides, in part that "A regulatory board established to administer a system of certification or licensure …unless otherwise specified by law, shall consist of at least five members." Khan 42 Va. App .at 476. And § 54.1-602(A) of the Virginia Code provides, in part: "The Auctioneers Board shall be composed of five members. Id...."
    
The appellate court stated that, when statutes conflict, the legislature intended the more specific provision to control. Khan 42 Va. App .at 476. See Tharpe v. Commonwealth, 18 Va. App. 37, 43-44, (1994). The court noted that § 54.1-200 of the Code is located in the "General Provisions" chapter of the statutes concerning the Department of Professional and Occupational Regulation. Id. However, Code § 54.1-602(A) is located in the chapter that addresses auctioneers and the Auctioneers Board specifically. Id. Therefore, although the two statutes have similar wording, Code § 54.1-602(A) specifically addresses the Auctioneers Board and hence § 54.1-602(A) of the Code applies in this case. Id.
    
Appellants argued that "shall," as employed in Code § 54.1-602(A), is mandatory, not permissive.  Khan 42 Va. App .at 476. However, the Virginia Court of Appeals observed that the Virginia Supreme Court has interpreted "shall" to be directory rather than mandatory in the context of actions taken by public officials. Id. “‘The use of 'shall,' in a statute requiring action by a public official, is directory and not mandatory unless the statute manifests a contrary intent." As far back as 1888, when this Court addressed a statute that used the term "shall," we stated that "[a] statute directing the mode of proceeding by public officers is to be deemed directory, and a precise compliance is not to be deemed essential to the validity of the proceedings, unless so declared by statute. ”’ Id. (quoting Butler v. Commonwealth264 Va. 614, 619, 570 S.E.2d 813, 816 (2002)) .  
The Appellate Court of Virginia stated that there is no language in § 54.1-602(A) that prohibits the Board from acting when fewer than five members are serving active appointments. Khan 42 Va. App .at 476. Therefore, when there is no such language, the provision of the statute prescribing the number of board members is directory rather than mandatory. Id.
  
 The court further stated that, § 54.1-105, which sets forth and controls the authority of the Board to act, is entitled: "Majority of board or panel required to suspend or revoke license, certificate or registration; imposition of sanctions." Khan 42 Va. App .at 477. The section provides: "An affirmative vote of a majority of those serving on a board who are qualified to vote ...shall be required for any action to suspend or revoke a license, certification or registration or to impose a sanction on a licensee." Id. 

The court noted that, at the board meeting in question, four board members had been appointed to the Board, and all four members were present. Khan 42 Va. App .at 477. The minutes of the meeting state that a quorum of the Board was present. One board member did not participate in the decision of appellants' cases. Id. The decision was made by three members, a majority whether the Board consisted of four or five members. Id. 
  
 The Court found that, “‘The almost universally accepted common-law rule is ...[that] a majority of a quorum constituted of a simple majority of a collective body is empowered to act for the body." ...A board may act as long as there exists a quorum equal to a majority of all the actual members of the board. ”’ Khan 42 Va. App .at 477 (quoting  Levinson v. Connecticut Board of Chiropractic Examiners, 211 Conn. 508, 560 A.2d 403, 418 (Conn. 1989).  
  
 The appellate court of Virginia noted that the Commonwealth is authorized to impose regulations upon professions or occupations in order to protect the public interest when, among other circumstances, "the unregulated practice of the profession or occupation can harm [the] welfare of the public." Code § 54.1-100(1). Khan 42 Va. App .at 478. The court observed that the Board serves an administrative function of regulating the licensure of auctioneers, including suspending licenses and imposing sanctions for cause. Id. The very legislative purpose would be forestalled if transient vacancies were permitted to impair the Board's ability to perform its duties. Id. Code § 54.1-105 requires an affirmative vote of a majority of those serving on the Board to suspend a license or impose a sanction. Id. In light of the discussion above, the court found that a majority of the Board acted in appellants' case. Id. Therefore the Virginia Court of Appeals affirmed the orders of the Board and trial court’s decision of  imposing monetary penalties upon Appellants. Id.