Opinion by JUDGE PIERCE.Page 261
Appellant, Gerald L. Hammer, appeals a district court affirmance of an order of the Real Estate Commission permanently revoking his real estate broker's license. We affirm.
In August of 1971, Hammer and a non-broker partner, Allen, entered into a construction contract with a Mr. and Mrs. Rodney McNeill. Under the contract, Allen was to build a house for the McNeills on property which he and Hammer owned. The house was to be built according to a specified set of plans at a price not to exceed $38,000.
Hammer also became the listing agent for the sale of the McNeill's old home. This sale was closed in March of 1972. After the closing, Hammer informed the McNeills that their new house could not be built for less than $8,000 over the original contract price.
The McNeills brought an action against Hammer and Allen, and judgment was entered in the McNeills' favor. The court found that Hammer knew the house could not be built for $38,000 at the time he contracted with the McNeills, and that his failure to disclose this fact constituted fraud. That judgment was affirmed as to the fraud issue by this court in McNeill v. Allen, 35 Colo. App. 317, 534 P.2d 813 (1975).
Subsequently, the Commission permanently suspended Hammer's license under the authority of § 12-61-113(1), C.R.S. 1973, which provides in part:
"The commission has the power to . . . permanently revoke a license when the licensee is performing or attempting to perform any of the acts within the scope of this part 1 and is guilty of: . . .
"(s) Fraud, willful misrepresentation, deceit, or conversion of trust funds which results in the payment of any claim from the real estate recovery fund . . . ."
The district court, reviewing pursuant to § 24-4-106, C.R.S. 1973, affirmed the Commission.
I.
Hammer's principal argument is that the Commission's revocation effects an unconstitutional retroactive application of § 12-61-113(1)(s), C.R.S. 1973, in violation of Colo. Const. Art. II, Sec. 11. He basis his argument on the fact that this statute became effective on January 1, 1972, while the fraud occurred in August of 1971, when he failed to disclose his inability to perform the construction contract.
[1] However, we agree with the district court's characterization of the fraud as a "total plan or a total transaction" which encompassed not only the failure to disclose in August of 1971, but also the subsequent listing and sale of the McNeills' old home. The climax of the scheme occurred in March of 1972, when the then homeless McNeills were told they would have to pay an additional $8,000 for their new house. The gravamen of the fraud, therefore, was the continued concealment of the cost overruns.
Under these circumstances, we will not limit the "occurrence" of the fraud to a single day in August of 1971. Accordingly, we hold that the revocation was not based on a retroactive application of the statute.
II.
[2] Hammer argues that the revocation was based on a transaction in which he sold his own property. Because such a transaction does not require a broker's license, he argues that he could not have violated § 12-61-113(1)(s), C.R.S. 1973. However, nothing in that section indicates that it applies only to activities requiring a broker's license. Hammer confuses the disciplinary sections under Part I of Article 61 with the recovery sections under Part III of that Article. The sections under Part III permits recourse out of the recovery fund only in connection with acts for which a license is required. Section 12-61-302, C.R.S. 1973. But the Part I sections apply even when the broker is selling or buying his own property. Seibel v. Colorado Real Estate Commission, 34 Colo. App. 415, 530 P.2d 1290 (1974). Thus, the Real Estate Commission does not need to show Hammer's activities required a license before it may discipline him under § 12-61-113(1)(s), C.R.S. 1973. Seibel, supra.
The judgment of the district court is affirmed.
JUDGE COYTE and JUDGE ENOCH concur.