ALJDEC

01A-021-REL · Department of Real Estate · 2001-08-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 30, 2001 APPEARANCES: Respondent failed to appear. Assistant Attorney General V. Michele Gamez represented the Arizona Department of Real Estate. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The Arizona Department of Real Estate (the “Department”) seeks to revoke Respondent William G. Nix, II’s real estate salesperson’s license based on six alleged violations by Mr. Nix of A.R.S. § 32-2153(B). Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT On June 16, 1998, William G. Nix, II submitted an application to the Department for a real estate salesperson’s license. The Department’s license application form (Question No. 1) requires the applicant to answer the following question: “Have you ever been convicted of any felony, misdemeanor or other crime OR do you have any formal charges pending?” Mr. Nix answered this question “no.” Question No. 4 on the Department’s license application form requires the applicant to answer the following question: “Have you entered into any consent decree, OR had an injunction (either temporary or permanent), suspension, order or judgment issued which prohibited or restricted you from engaging in or continuing in any profession or occupation?” Mr. Nix answered this question “no.” The Department issued a real estate salesperson’s license to Mr. Nix. Subsequent to issuing Mr. Nix’s license, the Department learned that Mr. Nix had failed to disclose on his application a 1991 conviction for criminal simulation, and further that he was the subject of a permanent injunction that had been entered against him in 1997. The Department alleges that the facts and circumstances surrounding Mr. Nix’s conviction and the entry of the permanent injunction against him, plus Mr. Nix’s failure to have disclosed these matters on his June 16, 1998 application, constitutes a violation of A.R.S. § 32-2153(B)(1) (holder or applicant has procured or attempted to procure a real estate license for himself or another by fraud, misrepresentation or deceit, or by filing an original or renewal application which is false or misleading), (B)(2) (holder or applicant has been convicted in a court of competent jurisdiction in this or any other state of a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense), (B)(3) (holder or applicant has made any substantial misrepresentation), (B)(5) (holder or applicant has been guilty of any conduct which constitutes fraud or dishonest dealings), (B)(7) (holder or applicant has not shown himself to be a person of honesty, truthfulness and good character) and (B)(10) (holder or applicant has violated any state law that involves forgery or dishonest dealings). Consequently, the Department seeks to revoke Mr. Nix’s real estate salesperson’s license. The Department further seeks to assess against Mr. Nix, under A.R.S. § 32-2160.01, a civil penalty not to exceed $1,000.00 for each of his violations of Arizona Revised Statutes, Title 32, Chapter 20. The Department presented substantial and credible evidence that on November 26, 1991, Mr. Nix pled guilty to criminal simulation, a class 6 open offense, and that on December 20, 1991, Maricopa County Superior Court Judge Cheryl K. Hendrix suspended imposition of sentence and placed Mr. Nix on probation for a period of thirty months. [See Exhibits D6 and D3] By Order dated June 20, 1994, Maricopa County Superior Court Judge Barbara Jarrett discharged Mr. Nix from probation and designated his offense a misdemeanor. [See Exhibit D2] The Department presented substantial and credible evidence that on December 10, 1996, the State of Arizona filed a complaint for injunctive and other relief against Mr. Nix under Arizona’s consumer fraud act, and that on December 1, 1997, Maricopa County Superior Court Judge Norman D. Hall entered a permanent injunction that prohibited Mr. Nix from receiving, directly or indirectly, any remuneration, compensation, fees, or benefit of any sort (except for personal use) from, or as a result of, any transaction relating in any way to motor vehicles or the financing or leasing of motor vehicles. [See Exhibits E and F] Mr. Nix failed to appear for the hearing, and failed to advise the Office of Administrative Hearings of any cause for his failure to appear. Due to his failure to appear, Mr. Nix did not present any evidence to rebut the Department’s allegations or to mitigate the evidence presented against him. CONCLUSIONS OF LAW A.R.S. § 32-2153(B) provides ten (10) separate grounds upon which the Commissioner of the Department may revoke a real estate salesperson’s license. The Administrative Law Judge concludes, on the evidence presented, that Mr. Nix violated A.R.S. § 32-2153(B)(1), (B)(2), (B)(3), (B)(5), (B)(7) and (B)(10), and that Mr. Nix’s conduct warrants revocation of his license. Grounds exist to assess a civil penalty against Mr. Nix pursuant to A.R.S. § 32-2160.01. Upon consideration of all of the evidence, the Administrative Law Judge concludes that Mr. Nix’s misrepresentations to the Department (i.e., his violations of A.R.S. § 32-2153(B)(1) and (B)(3)) warrant assessment of a civil penalty in the amount of $1,000.00 for each violation, for a total civil penalty of $2,000.00. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge recommends that the Commissioner of the Department revoke Mr. Nix’s real estate salesperson’s license. The Administrative Law Judge further recommends that the Commissioner of the Department assess a civil penalty against Mr. Nix pursuant to A.R.S. § 32-2160.01 in the amount of $2,000.00.

Done this day, August 21, 2001.

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Jerry Holt, Commissioner Department of Real Estate ATTN: Gloria Konya 2910 North 44th Street, Suite 100 Phoenix, AZ 85018

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826