dissenting:
While I concur with the majority’s decision that the fine imposed upon plaintiff should be reduced, I disagree that plaintiff is subject to any penalty at all by reason of her commercial activities.
The Act (225 ILCS 454/1 — 1 through 999 — 99 (West 2002)), under which these proceedings were brought, provides a comprehensive scheme for the licensing and discipline of brokers and sellers of real estate in Illinois. Exemptions from the licensing requirements imposed on professionals engaged in the real estate business are set forth in section 5 — 20 (225 ILCS 454/5 — 20 (West 2002)). Two of those exemptions have application here:
“(7) Any multiple listing service or other information exchange that is engaged in the collection and dissemination of information concerning real estate available for sale, purchase, lease, or exchange along which no other licensed activities are provided.
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(9) Any medium of advertising in the routine course of selling or publishing advertising along with which no other licensed activities are provided.” 225 ILCS 454/5 — 20(7), (9) (West 2008).
I would find that plaintiffs real estate advertising activities complained of here easily fit within these exemptions.
I am not unmindful of the comments plaintiff made on the Sam Madonia radio program to the effect that she had “sold” a certain volume of real estate or that she had a very pretty house “for sale.” Such comments may make her a blabbermouth but not a realtor. It is clear, in the context of the entirety of her remarks, that she was engaged in the business of taking pictures of houses for sale by owner (FSBO) and developing a grouping of FSBO properties for newspaper advertising.
The essence of the real estate profession is the activity of bringing buyers and sellers together. Rabin, 116 Ill. App. 3d at 531, 451 N.E.2d at 1337. Plaintiff’s activities stand in stark contrast to that definition. Realtors, whether brokers or licensed salespersons, actively solicit sales and/or purchases of real estate, advise their clients as to market value and sales strategies, and assist in the closing of real estate sales. Such activities stand in stark contrast to the business of FSBO, for which plaintiff is an agent. That business plan is to solicit and place advertising for persons who want to sell their own property. FSBO’s involvement in the sale is taking a picture of the subject property, grouping the pictures in an advertisement with other properties for sale, and providing a yard sign with the owner’s telephone number on it.
A realtor is a fiduciary to his or her client. See Jeffrey Allen Industries, Inc. v. Sheldon F. Good & Co., 153 Ill. App. 3d 120, 123, 505 N.E.2d 1104, 1106 (1987); Pawlowic v. Pearce, 59 Ill. App. 2d 153, 157, 207 N.E.2d 155, 156 (1965). Plaintiffs activities can in no way be construed as involving a fiduciary relationship. The record is devoid of any evidence that she performed a market analysis, suggested a sale price, or brought willing buyers and sellers together. Realtors are compensated by a percentage of the sale price. Plaintiff, by contrast, was paid a per-property price of $50 to take pictures and place advertisements.
I would also find that plaintiffs activities are protected speech by the first amendment to the United States Constitution. U.S. Const., amend. I. In Forsalebyowner.com Corp. v. Zinnemann, 347 F. Supp. 2d 868 (E.D. Cal. 2004), the California licensing authorities sought to stop the exact same activities performed by the plaintiff here. The United States district court found that the real estate licensing laws could not do so as they constituted unconstitutional content and media-based regulation. Zinnemann, 347 F. Supp. 2d at 877.
The complaint against Forsalebyowner by the California licensing authorities was that Forsalebyowner advertised properties for sale on the Internet. Yet realtors advertised properties for sale in newspapers and on the Internet. The district court held:
“Because FSBO unquestionably has a speech interest in disseminating real estate information through its Web site, and because [defendants have not shown any compelling state interest in requiring a real estate broker’s license for FSBO’s Web site but not for virtually identical newspaper Web sites, the presumption of unconstitutionality triggered by this disparity of treatment has not been overcome. Section 10026 [of the California Business and Professions Code] accordingly fails constitutional muster on that basis.” Zinnemann, 347 F. Supp. 2d at 879.
While it is certainly true that commercial speech is more susceptible to regulations than other forms of expression, the State has the burden of justifying a restriction on commercial speech. Coldwell Banker Residential Real Estate Services of Illinois, Inc. v. Clayton, 105 Ill. 2d 389, 403, 475 N.E.2d 536, 543 (1985). The State has not done so here.