Ottenheimer v. REAL ESTATE DIV. OF NEV DEPT OF COM.

535 P.2d 1284 (1975)

Charles J. OTTENHEIMER et al., Appellants, v. The REAL ESTATE DIVISION OF the NEVADA DEPARTMENT OF COMMERCE and the State of Nevada, Respondents. The Real ESTATE DIVISION OF the NEVADA DEPARTMENT OF COMMERCE and the State of Nevada, Appellants, v. H. LIPSKY et al., Respondents.

Nos. 7975, 8004 and 8031-8035.

Supreme Court of Nevada.

May 30, 1975.

*1285 Vargas, Bartlett & Dixon, and Edward H. Tricker, Reno, Albright & McGimsey, Las Vegas, for appellants.

Robert List, Atty. Gen., Robert E. Edmonson and E. William Hanmer, Deputy Attys. Gen., Carson City, for respondents.

PER CURIAM:

These consolidated appeals arise from suits commenced by persons qualified as "registered representatives" under NRS 119.090, asking that a 1973 amendment to NRS 119.180 be declared unconstitutional. Before the amendment, a "registered representative" could offer or sell subdivision property, without being licensed under NRS Chapter 645 as a real estate salesman or broker. As of January 1, 1975, such amendment would require that to sell land under NRS Chapter 119, a "registered representative" must be licensed as a salesman or broker.

In Case No. 7975, appellant Ottenheimer sought to have the amendment declared unconstitutional and its enforcement enjoined. On motion of the State of Nevada and the Real Estate Division of the Nevada Department of Commerce (hereinafter called "the State"), the district court held no genuine factual issue remained for trial, and granted summary judgment. See: NRCP 56. Ottenheimer has appealed, and all other consolidated appeals turn on whether summary judgment was proper in Ottenheimer's case. We hold it was not.

Without question, the State through its police powers may regulate business activities for the protection of the public. Koscot Interplanetary, Inc. v. Draney, 90 Nev. 450, 530 P.2d 108 (1974). "Every reasonable presumption must be indulged in support of the controverted statute with any doubts being resolved against the challenging party, who has the substantial burden of showing that the act is constitutionally unsound." 90 Nev. at 456, 530 P.2d at 112. However, subject to such burden, one adversely affected may endeavor to show that such a statute is unreasonable, arbitrary, or insufficiently related to the end sought to be achieved. Cf. Viale v. Foley, 76 Nev. 149, 154, 350 P.2d 721, 723 (1960); King v. Board of Regents, 65 Nev. 533, 542, 200 P.2d 221, 225 (1948).

"Summary judgment is a drastic remedy, therefore, all evidence favorable to the party against whom such summary judgment was rendered will be accepted as true. [Citations omitted.] All favorable inferences will be drawn in favor of the party who lost on the summary judgment." Zuni Constr. Co. v. Great Am. Ins. Co., 86 Nev. 364, 366, 468 P.2d 980, 981 (1970). Here, summary judgment was granted without opportunity for full discovery, and Ottenheimer had no opportunity to demonstrate that the legislation in question fails to meet constitutional standards.

Examining the existing record in the light most favorable to Ottenheimer, it cannot be said as a matter of law that the legislation in question is reasonable, nonarbitrary, and sufficiently related to the end sought to be achieved. Appellant Ottenheimer and others similarly situated should be afforded opportunity to proceed with discovery and, if they can, to present proof that the legislation offends constitutional standards. Accordingly, in Case No. 7975, we reverse and remand for trial.

In Case No. 8004, the district court denied a preliminary injunction to the plaintiffs, and appeal followed. In light of all relevant considerations, we think denial of preliminary injunctive relief was error. Particularly, we note that denying a preliminary injunction would force appellants to leave established, intrinsically lawful employment, thereby sustaining substantial irreparable injury if the legislation indeed is unconstitutional. By comparison, maintaining the status quo pending final judgment will impose small burden on the State. Cf. Memory Gardens v. Pet Ponderosa, 88 Nev. 1, 492 P.2d 123 (1972). Case No. 8004 is therefore reversed and remanded *1286 with instructions to enter a preliminary injunction consistent with this opinion.

In Case Nos. 8031, 8032, 8033, 8034 and 8035, preliminary injunctive relief was granted, and the State has appealed. For reasons heretofore stated, we affirm the district court in those cases.