ALJDEC decisions subject to certification as final

04A-018-NOT · Secretary of State · 2004-03-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 20, 2004 APPEARANCES: Respondent Robert E. Jamieson appeared on his own behalf. Assistant Attorney General Kent Lee represented the Arizona Secretary of State. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

The Arizona Secretary of State seeks to revoke the commission of Respondent Robert E. Jamieson as a notary public in the State of Arizona pursuant to Arizona Revised Statutes (“A.R.S.”) § 41-330(A)(4). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT 1. Respondent Robert E. Jamieson (“Mr. Jamieson”) holds a commission as a notary public issued by the Arizona Secretary of State (the “Secretary”). 2. Mr. Jamieson is the owner and operator of a Mail Boxes Etc. (“MBE”) franchise located in Gold Canyon, Arizona. 3. On May 12, 2003, Mr. Jamieson notarized a set of estate planning documents for Dennis and Billie Drost. That set of documents included: (i) a beneficiary deed; (ii) the last will and testament of Dennis Drost; (iii) the last will and testament of Billie Drost; (iv) a declaration of living will for Dennis Drost; (v) a declaration of living will for Billie Drost; (vi) a durable general power of attorney made by Dennis Drost; (vii) a durable general power of attorney made by Billie Drost; (viii) a durable power of attorney for health care made by Dennis Drost; and (ix) a durable power of attorney for health care made by Billie Drost. [See Exhibit 10]

4. Eight of the foregoing documents required the signatures of two witnesses. Mr. Jamieson agreed to provide two of his employees to serve as witnesses. 5. Mr. Jamieson notarized each of the Drosts’ nine documents in the location where the notarial certificate had been placed.[1] Mr. Jamieson also notarized seven additional pages that did not contain notarial certificates. [See Exhibit 10(b) at pages 4 and 6, Exhibit 10(c) at pages 4, 5 and 7, Exhibit 10(d) at page 3, and Exhibit 10(e) at page 3] 6. When Mr. Drost inquired as to the cost for Mr. Jamieson’s notary services, Mr. Jamieson advised him that the cost was $2.00 per signature. This is the maximum charge permitted under Arizona Administrative Code ("A.A.C.") R2-12-1102, which provides as follows: Notaries public may charge the following fees:

1. For acknowledgments, $2 per signature; 2. For jurats, $2 per signature; 3. For copy certifications, $2 per page certified; 4. For oaths or affirmations without a signature, $2.

7. Mr. Drost assumed that the $2.00 per signature charge applied to each instance that Mr. Jamieson applied his signature to the documents. Mr. Jamieson, on the other hand, understood the above rule to allow him to charge $2.00 for each signature that appeared on each document that he notarized (not including his own). The Administrative Law Judge finds that Mr. Jamieson did not adequately explain to Mr. Drost the manner in which Mr. Jamieson intended to charge for his notarial services. 8. The foregoing misunderstanding was not insignificant in effect. Mr. Jamieson counted 35 signatures in the documents (not counting his own); therefore, Mr. Jamieson arrived at a charge for his notarial services in the amount of $70.00.[2] Mr.

Drost, on the other hand, calculated that because there were 9 notarial certificates that required notarization (1 per document), the proper charge should have been $18.00. 9. By letter dated July 15, 2003, Mr. Drost filed a complaint against Mr. Jamieson with the Secretary’s office alleging that he had been overcharged for Mr. Jamieson’s services. [See Exhibit 2] The Secretary forwarded Mr. Drost’s complaint to the Office of the Attorney General (the “OAG”) for investigation. 10. By letter dated July 24, 2003, the OAG advised Mr. Jamieson that it was in receipt of Mr. Drost’s complaint, and requested that Mr. Jamieson submit a written response. [See Exhibit 4] 11. By letter dated August 18, 2003, after Mr. Jamieson had failed to respond to its July 24, 2003 letter, the OAG again requested that Mr. Jamieson submit, within 5 business days, a written response to Mr. Drost’s complaint. [See Exhibit 5] 12. By letter dated September 15, 2003, Mr. Jamieson responded to the OAG’s August 18, 2003 letter. [See Exhibit 6] In his defense, Mr. Jamieson cited A.A.C. R2-12-1102 as authorizing the $70.00 fee that he had charged to Mr. Drost. 13. By letter dated November 25, 2003, the Secretary advised Mr. Jamieson that his commission as a notary public would be revoked pursuant to A.R.S. § 41-330(A)(4) based upon (i) his having overcharged the Drosts for his notarial services, and (ii) his improper performance of seven notarizations on the Drosts’ estate planning documents (i.e., the notarizations of the non- certificated pages). [See Exhibit 8][3] 14. On December 23, 2003, Mr. Jamieson requested an administrative hearing on the Secretary’s decision. Thereafter, this matter was set for hearing before the Office of Administrative Hearings, an independent state agency. 15. At hearing, Mr. Jamieson denied that he had overcharged the Drosts for his notarial services. Mr. Jamieson contended that the language of A.A.C. R2-12-1102 regarding per signature charges is ambiguous, and that prior to performing the services in question, he attempted to clarify that ambiguity by speaking to three individuals in the Secretary’s office. According to Mr. Jamieson, each of those persons advised him that he could charge $2.00 per notarized signature (not including his own). Mr. Jamieson further asserted that the $2.00 per signature charge is MBE policy and that other notaries public in the Phoenix metropolitan area follow the same or a similar fee structure. 16. Mary Van Loan, the assistant director of the Secretary’s business services division (which has jurisdiction over notaries), testified that it has never been her staff’s understanding that the term “signature,” as used in A.A.C. R2-12- 1102, means anything other than the signature of the notary public. Ms. Van Loan asserted that her staff is well trained, and would not have provided the information that Mr. Jamieson claimed to have received. 17. Regarding Mr. Jamieson’s testimony about his contacts with the Secretary’s office, the Administrative Law Judge did not find such testimony to be credible. First, the Administrative Law Judge questions the fact that Mr. Jamieson felt compelled to speak to three different individuals. This fact indicates that at the very least, Mr. Jamieson was unsure about his position to the point that he felt he needed multiple confirmations. Second, as a notary, Mr. Jamieson is in a particular position to appreciate the importance of written documents. Yet, on a matter so significant that Mr. Jamieson felt that he needed to speak with three different individuals at the Secretary’s office, he did not obtain any written confirmation from the Secretary that his interpretation of A.A.C. R2-12-1102 comported with the Secretary’s interpretation. Third, the Administrative Law Judge finds that Mr. Jamieson had a pecuniary interest in his interpretation of A.A.C. R2-12-1102, and that such interest may have affected Mr. Jamieson’s construction of the advice that he received from the Secretary’s office. 18. As to Ms. Van Loan’s testimony, the Administrative Law Judge found such testimony to have been credibly given; however, as Ms. Van Loan did not have any direct, personal knowledge about Mr. Jamieson’s conversations with her staff, the Administrative Law Judge did not find her testimony to be persuasive. 19. Although the Administrative Law Judge did not find Mr. Jamieson’s testimony regarding his contacts with the Secretary’s office to be credible, the Administrative Law Judge agrees with Mr. Jamieson that the language of A.A.C. R2-12-1102 is ambiguous. Nowhere does this rule specify that the notary’s signature is the only signature for which the $2.00 charge may be assessed. Further, there is no evidence of record that the Secretary has placed this State’s notaries public on notice that A.A.C. R2-12-1102 should be so interpreted. 20. The foregoing notwithstanding, the evidence demonstrated that Mr. Jamieson did in fact overcharge the Drosts for his notarial services because, even accepting Mr. Jamieson’s interpretation of A.A.C. R2-12-1102 as correct, Mr. Jamieson performed seven notarial acts that have no force or effect, and therefore the Drosts should not have been charged for those acts. 21. At hearing, Mr. Jamieson asserted that the seven additional notarizations were properly performed. Mr. Jamieson explained that in his view, his notarial seal adds credence to each document on which it appears, and protects against the substitution of a different document for the original. 22. The Administrative Law Judge finds Mr. Jamieson’s reasoning, as set forth above, to demonstrate a significant lack of understanding about the notarial function. A notarial seal on a document, without more (specifically, a notarial certificate explaining the notarial act being performed), has no intrinsic value. Further, the application of a notarial seal to a document that lacks a notarial certificate offers no protection against the substitution of a different document, as there would be no reason to question a substitute document that did not, on its face, require notarization. 23. Mr. Jamieson asserted that he notarized the non-certificated pages of the Drosts’ documents at the instruction of Mr. Drost. The Administrative Law Judge did not find this testimony to be credible. As Mr. Drost’s testimony at hearing made clear, Mr. Drost did not have any understanding of the notarial process, and was relying on Mr. Jamieson, as a notary public, to properly notarize the documents in the correct locations. 24. The Administrative Law Judge instead finds, based on Mr. Jamieson’s testimony, that Mr. Jamieson led Mr. Drost to believe that additional notarial seals on pages not bearing notarial certificates would be an effective form of protection, and that Mr. Jamieson notarized those pages upon Mr. Drost’s concurrence in such action.

25. The Administrative Law Judge makes the foregoing finding based not only on Mr. Jamieson’s testimony as to his estimation of the independent value of a notarial seal, but also on Mr. Jamieson’s testimony that he views his commission as a profit center, to be used primarily for the generation of revenue. Specifically, Mr. Jamieson implied at hearing that he is expected to generate revenue from his notarial services as a term of his franchise agreement with MBE. A person expecting to profit from notarial acts, such as Mr. Jamieson, would be more likely to propose the performance of additional notarial acts beyond those required on the face of the documents presented, such as occurred in Mr. Drost’s case. 26. Mr. Jamieson’s testimony regarding his view of his commission as a profit center raises a further concern. By setting a cap on notary fees and by establishing such fees in nominal amounts, A.A.C. R2-12-1102 sets forth the public policy of Arizona that a notarial commission should not be viewed as a profit center. The expectancy of generating revenue from a notary commission, as is the case with Mr. Jamieson, is inconsistent with the office. 27. Mr. Jamieson’s actions in regard to the Drost transaction raise other concerns. Most significantly, Mr. Jamieson failed to recognize that in notarizing eight of the Drosts’ nine estate planning documents, he was performing a jurat, which is defined by Arizona law to mean “a notarial act in which the notary certifies that a signer, whose identity is proven by satisfactory evidence, has made in the notary's presence a voluntary signature and has taken an oath or affirmation vouching for the truthfulness of the signed document.” See A.R.S. § 41-311(6). 28. Because Mr. Jamieson failed to recognize that he was performing a jurat, he did not administer an oath to either Mr. or Mrs. Drost before notarizing the signatures on their wills, living wills, general powers of attorney and health care powers of attorney. 29. Additional to the foregoing, the Administrative Law Judge finds as a cause for concern Mr. Jamieson’s repeated assertions at hearing that he will notarize “whatever” a client wants. A notary public is a public officer commissioned by the State of Arizona to act on the State’s behalf, and therefore stands in a position of public trust. A notary public must exercise discretion and judgment in the execution of his functions. Mr. Jamieson’s stated view that he is willing to notarize whatever a client wants is inconsistent with the requirements of his office, and demonstrates a lack of understanding and appreciation for that office. CONCLUSIONS OF LAW 1. In this proceeding, the Secretary bears the burden to prove, by a preponderance of the evidence, that Mr. Jamieson violated A.R.S. § 41-330(A)(4) and that in consequence of that violation, Mr. Jamieson’s notary commission should be revoked. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The Secretary alleged that Mr. Jamieson violated A.R.S. § 41- 330(A)(4). This statute provides: § 41-330. Grounds for refusal or revocation of commission

A. The secretary of state may refuse to appoint any person as a notary public or may revoke the commission of any notary public for any of the following reasons:

* * * * *

4. Failure to discharge fully and faithfully any of the duties or responsibilities required of a notary public.

4. The Administrative Law Judge concludes, upon consideration of all of the evidence presented at hearing, that Mr. Jamieson failed to fully and faithfully discharge his duties as a notary public with regard to the Drosts’ estate planning documents in two respects: First, Mr. Jamieson improperly notarized seven non-certificated pages (and failed to recognize that he was performing a jurat on eight of the nine certificated pages); second, Mr. Jamieson overcharged the Drosts for his services by improperly charging for the notarization of non-certificated pages. 5. Based on Mr. Jamieson’s demonstrated violations of A.R.S. § 41- 330(A)(4), proper grounds exist to revoke Mr. Jamieson’s commission as a notary public.

6. The statutes governing notaries public in the State of Arizona do not extend any discretion to the Secretary in the matter of discipline for notaries who commit acts in violation of A.R.S. § 41-330. In the case of a person who has already been commissioned, the Secretary has but one option, and that option is to revoke the commission. 7. In this case, the Secretary has established the charged violation, and therefore the Secretary’s decision to revoke Mr. Jamieson’s commission (the only disciplinary option available) is presumptively correct. The only remaining analysis is whether there exist mitigating circumstances sufficient to conclude that revocation is not an appropriate remedy for Mr. Jamieson’s conduct. 8. The mitigating circumstance on which Mr. Jamieson relied was his assertion that he had confirmed his interpretation of A.A.C. R2- 12-1102 with the Secretary’s office, and therefore that he had not overcharged the Drosts. As set forth in the above Findings of Fact, the Administrative Law Judge did not find Mr. Jamieson’s testimony in this regard to be credible. Further, even accepting Mr. Jamieson’s interpretation as correct, he still overcharged the Drosts by charging for the notarization of non-certificated pages. 9. Even if the Administrative Law Judge was to afford greater mitigative weight to Mr. Jamieson’s assertions of good faith, such additional weight would itself be outweighed by the evidence that demonstrated (i) Mr. Jamieson’s failure to have properly explained his fees to Mr. Drost in the first instance, and (ii) Mr. Jamieson’s lack of understanding and appreciation of the duties of his office as a notary public. 10. Based on the foregoing, the Administrative Law Judge finds that the Secretary’s decision to revoke Mr. Jamieson’s commission as a notary public should be affirmed. RECOMMENDED ORDER In view of the foregoing, it is recommended that the Secretary’s decision to revoke the notary public commission of Respondent Robert E. Jamieson be affirmed.

Done this day, March 11, 2004.

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this _____ day of March, 2004, to:

Jan Brewer, Secretary of State Business Services Division ATTN: Gene Palma 1700 West Washington, 7th Floor Phoenix, AZ 85007

By ___________________________ ----------------------- [1] “Notarial certificate” is the term used to describe “the part of or attachment to a notarized document for completion by the notary that bears the notary's signature and seal.” See A.R.S. § 41-311(8).

[2] Although not directly relevant to the analysis herein, Mr. Jamieson’s count was incorrect ( the actual number of signatures (not counting Mr. Jamieson’s) was 34. [3] The Secretary also alleged that Mr. Jamieson failed to provide the OAG with a copy of his notary journal in violation of A.R.S. § 41-319(A); however, the evidence demonstrated that this claim was erroneously made as the OAG had never requested that Mr. Jamieson provide it with a copy of his notary journal.

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