All drunken-driving offenders in Hawaii are slapped with stiff sanctions. They pay an average $2,000 to $4,000 in lawyers’ fees and fines.
And more painfully, first-time DUI (driving under the influence) offenders lose their driver’s license for a minimum of a year, and up to 18 months to three years for a second offense.
You would think the punishment would be the same statewide for anyone caught excessively drinking and driving.
But I recently discovered something interesting. The state agency that licenses real estate agents imposes additional fines on agents if they are caught drinking too much and driving, even after they have completed all the court-imposed terms of their conviction. The additional fine is usually $500 per DUI offense and sometimes up to $2,000 for multiple offenses or for hiding the crime.
And more humiliatingly, the Real Estate Commission publicizes an agent’s name in the commission’s bulletin for any and all crimes, including a DUI.
“It is like having a scarlet letter,” says DUI defense attorney R. Patrick McPherson. McPherson has handled thousands of DUI cases in Hawaii.
Real estate professional Scott Sherley says realtors always turn first to the sanctions section in the Real Estate Commission bulletin “to see who got caught for what.”
“It’s embarrassing for anybody with a DUI,” Sherley says. “Nobody wants their colleagues to see it.”
Sherley teaches continuing education classes for real estate professionals in Hawaii. He says he doesn’t know of any other profession in Hawaii that publicizes the names of its DUI offenders.
Attorney McPherson thinks the professional punishment on top of the court punishment is unfair.
“If they call it a fine and it is a state run organization, it is double jeopardy and that may make the practice unconstitutional,” he says. “If it is a civil administrative penalty it may be permissible but it is still unconscionable.”
Real Estate Commission executive officer Neil Fujitani says, “Driving under the influence of alcohol is a serious crime with the potential to have very serious consequences.”
Fujitani says it is especially important to lay down the law when it comes to DUIs for real estate agents because they drive so much.
“They are always in their cars when they take their clients out to see properties or when they go to check on properties they’re selling or if they are agents driving out to see rental properties they manage.”
Fujitani says the real estate profession lobbied to put the sanctions and administrative fines into law many years ago and since has had few if any complaints about it.
The Real Estate Commission bulletin of February 2017 explained the extra sanctions this way:
“The Commission regulates licensees who commit crimes, even crimes of ‘driving under the influence’ because they can and do impact negatively society and the reputation and integrity of the real estate profession. Moreover crimes of ‘driving under the influence’ also impact the real estate licensee’s traditional function or duty of driving such that the commission historically disciplines licensees when they have been so convicted.”
Fujitani says when enforcers from the state Regulated Industries Complaints Office recommend a fine for real estate professional with a DUI the offenders can contest it in a hearing, but he says offenders rarely file complaints.
“I really question if the additional fines are necessary on top of the really huge sanctions someone with a DUI conviction is already facing.” — Carol McNamee, Mothers Against Drunk Driving Hawaii
Cathy Ostrem, a broker who has sold real estate for 25 years, is among those who support the commission’s DUI sanctions.
Ostrem says, “When someone gets nailed I think good. You are making the rest of us look bad.”
“I don’t think people recognize that realtors both in Hawaii and nationally are held to a higher professional standard,” she says. “And that is the way it should be. We handle large financial transactions. We want this high standard.”
But Carol McNamee, who has spent most of her adult life pushing for tougher sanctions against impaired drivers, thinks the real estate commission’s fines might do little to deter drunken driving.
“I really question if the additional fines are necessary on top of the really huge sanctions someone with a DUI conviction is already facing such as losing their driver’s license for a year,” McNamee says. “The loss of a driver’s license seems like a much bigger deterrent for a real estate sales professional than an additional $500 fine from the commission.”
McNamee is the founder of Mothers Against Drunk Driving Hawaii and a board member of MADD Hawaii.
McNamee says if she knew the money from real estate agents’ DUI offenses was going into a fund to help educate people about the dangers of driving drunk she might be more supportive.
But all the fines go into the Compliance Resolution Fund of the state Department of Commerce and Consumer Affairs and helps pay for the department’s operating costs.
McNamee says DUI arrests statewide remain steady at about 6,000 a year but she says the rate of alcohol related deaths in the last 33 years has been cut in half. She says that’s because of better education, stronger law enforcement and even ride-hailing programs such as Uber and Lyft.
Real estate educator Sherley says the extra fines on DUI real estate sellers “may seem like adding insult to injury but the licensee needs to be aware of their problem and self report it before it turns into something bigger.”
Something bigger could mean the loss of a real estate seller’s license and their livelihood.