Gross misdemeanor

Key Takeaways

• In Washington a gross misdemeanor carries up to 364 days in county jail, a fine of up to $5,000, or both, when the statute creating the offense sets no penalty of its own (RCW 9.92.020).
• An ordinary misdemeanor tops out at 90 days and a $1,000 fine, so moving up one tier roughly quadruples the exposure.
• RCW 18.85.411 makes it a gross misdemeanor to act as a real estate broker, managing broker, or firm without a license, and to violate any provision of the license law chapter.
• Under RCW 2.48.180 a single act of unlawful practice of law is a gross misdemeanor and each subsequent violation is a class C felony.

What It Means

A gross misdemeanor is the middle tier of Washington's three level criminal grading. Below it sits the ordinary misdemeanor, used for the smallest offenses. Above it sit the felony classes, which carry prison rather than county jail and bring lasting consequences for the right to vote, to own a firearm, and to hold many professional licenses.

The tier matters to real estate brokers for a practical reason. Washington's license law puts nearly everything a broker can do wrong on the criminal side at this level, which is unusual. Most professional regulation is purely administrative, where the worst outcome is losing the License. In Washington a license law violation can be both, an administrative case run by the Department Of Licensing and a criminal charge filed by a county prosecutor, and the two run on separate tracks with different standards of proof.

The exposure is concrete: up to 364 days in county jail, a fine of up to $5,000, or both. That is the default Washington applies to a gross misdemeanor when the statute creating the offense prescribes no punishment of its own, which is the situation under the real estate license law.

How It Works in Washington

RCW 18.85.411 is short and very broad: any person acting as a real estate broker, managing broker, or real estate firm, without a license, or violating any of the provisions of this chapter, is guilty of a gross misdemeanor. That sweeps in the whole license law chapter, not only unlicensed activity. Because RCW 18.85.411 prescribes no punishment of its own, RCW 9.92.020 supplies it: imprisonment in the county jail for a maximum term fixed by the court of up to 364 days, or a fine of not more than $5,000, or both. RCW 9A.20.021 sets that same ceiling for gross misdemeanors defined in the criminal code.

The Unauthorized Practice Of Law rule is graded the same way and then escalates. Under RCW 2.48.180 a single violation is a gross misdemeanor, and each subsequent violation, whether alleged in the same or in subsequent prosecutions, is a class C felony. For a Washington broker that is the live risk in drafting an addendum, filling blanks the form did not contemplate, or advising a client on the legal effect of a contingency. The scope of a Washington broker license marks where those lines fall.

Criminal charging and license discipline are separate proceedings. The Department of Licensing can act on the grounds listed in RCW 18.85.361 whether or not a prosecutor ever files, so a broker can lose a license and be convicted for the same conduct, or lose the license with no charge at all. This guide to Washington license law covers the disciplinary side.

Example

Kyle Boone lets his Washington broker license lapse on May 31 and does not renew. In July he shows three houses to a former client, writes the offer, and takes a $9,800 commission through a friend's firm after closing. Two separate things now happen.

First, the Department of Licensing opens a case, and the Managing Broker who let an unlicensed person work under the firm faces discipline of her own. Second, the county prosecutor can charge Kyle under RCW 18.85.411, a gross misdemeanor carrying up to 364 days in jail and a fine of up to $5,000. Kyle also cannot sue to keep the $9,800 if the firm claws it back, because RCW 18.85.331 requires a plaintiff to allege and prove licensure before the time of offering to perform the transaction. A $9,800 payday turns into a $5,000 fine ceiling, possible jail, and a license he has to earn back.

Common Mistakes and Exam Traps

• A gross misdemeanor is not a felony. Do not pick the answer that sends an unlicensed broker to state prison; the ceiling is 364 days in county jail.
• 364 days is the number, not 365 days and not one year. Washington sets the gross misdemeanor maximum one day short of a full year.
• The criminal case and the license case are independent. A broker can be acquitted in criminal court and still lose the license, because the Department of Licensing decides discipline on its own record.
• Unauthorized practice of law starts as a gross misdemeanor but each later violation is a class C felony. Only the first offense stays at the gross misdemeanor level.