ALJDEC decisions subject to certification as final

07F-2225-BOA · Board of Appraisal · 2008-04-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 23, 2008 at 9:00 a.m. APPEARANCES: The Arizona Board of Appraisal appeared through Jeanne M. Galvin, Esq., Assistant Attorney General; Respondent Joshua Hernandez did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. The Arizona Board of Appraisal (“the Board”) has been authorized and entrusted by the Arizona legislature to regulate the appraisal profession in the State of Arizona by issuing licenses, investigating complaints, and disciplining licensees. 2. The Board issued Licensed Residential Appraiser Certificate No. 10453 to Respondent Joshua Hernandez. That certificate is currently scheduled to expire on August 31, 2009. 3. On August 15, 2006, the Board received a complaint that alleged violations of statutes, administrative regulations, and the Uniform Standards of Professional Appraisal Practice governing licensed appraisers. As part of the Board’s investigation, it held an informal hearing, which Respondent attended. 4. The Board had received information that Respondent’s company may have been involved in the preparation of the appraisal at issue in the complaint. 5. During the informal hearing, Respondent testified that he did not recall whether he had received any money for the appraisal at issue in the complaint. 6. On December 31, 2007, the Board’s Executive Director issued a subpoena duces tecum to Respondent pursuant to A.R.S. § 32- 3631(C) for “[c]opies of ANY AND ALL canceled checks, bank statements, and receipts for payment for the period from April 1, 2006, to and including July 31, 2006, for any and all bank accounts maintained by you.” [Emphasis in original.] 7. The Board sent the subpoena via certified and regular mail to Respondent’s address of record, 2608 W. Elm St., Phoenix, AZ 85017, with a cover letter informing Respondent that he was required to appear with the requested documents at the Board’s office on 9:00 a.m. on January 14, 2008 or could comply with the subpoena, in lieu of a personal appearance, by providing the requested documents to the Board on or before January 11, 2008. 8. The copy of the cover letter and subpoena that had been sent to Respondent via certified mail was returned to the Board as unclaimed on January 22, 2008. The U.S. Post Office notation indicated that Respondent had been notified of the certified mail on January 3, 2008 and January 12, 2008. 9. The copy of the cover letter and subpoena that had been sent to Respondent via regular mail was not returned to the Board as undeliverable. The Board’s Executive Director Deborah G. Pearson testified at the hearing that the Board had implemented office procedures to ensure that complaint- related correspondence was delivered to her. 10. The Board referred the matter to the Office of Administrative Hearings for the scheduling of a hearing in due course. 11. On March 10, 2008, the Board issued a Complaint and Notice of Hearing, setting an administrative hearing on April 23, 2008 at 9:00 a.m. and charging Respondent with a violation of A.R.S. § 32-3631(A)(8) in his failure to respond to or comply with the Board’s subpoena. 12. The Complaint and Notice of Hearing was sent to Respondent via certified and regular mail to his most recent address of record on 2608 W. Elm St., Phoenix, AZ 85017. 13. On March 11, 2008, one Jose Vallejas signed to acknowledge receipt of the copy of the Complaint and Notice of Hearing sent via certified mail. 14. The copy of the Complaint and Notice of Hearing sent via regular mail was not returned to the Board. 15. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, he neither appeared personally or through an attorney, contacted the Office of Administrative Hearings to request a continuance or that the time for the hearing be further delayed, nor presented any evidence to defend his license. 16. The Board presented testimony and evidence to establish the facts set forth above. 17. In addition, as a factor in aggravation of the penalty, the Board had admitted into evidence a copy of the fully executed Consent Agreement and Order in Case Nos. 0621, in which Respondent had admitted to certain statutory violations and, as a result, had agreed to have his appraiser certificate suspended and then placed on disciplinary probation. CONCLUSIONS OF LAW 1. The notice of the hearing that the Board mailed to Respondent at his address of record was reasonable and Respondent is deemed to have received notice of the hearing.[1] 2. This matter lies within the Board’s jurisdiction.[2] 3. The Board bears the burden of proof and must establish Respondent’s statutory violation by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[5] 4. The Board has established that Respondent violated A.R.S. § 32-3631(A)(8)[6] by failing to respond to its subpoena, which was properly issued pursuant to A.R.S. § 32-3631(C).[7] 5. With respect to the appropriate penalty, Respondent has a history of prior discipline against his license. More importantly, his failure either to respond to the subpoena or to keep the Board apprised of his current address indicates that, at this time, he cannot be regulated. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board revoke Licensed Residential Appraiser Certificate No. 10453 previously issued to Respondent Joshua Hernandez. Done this day, April 23, 2008.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of April, 2008, to:

Deborah G. Pearson, Executive Director Board of Appraisal 1400 West Washington, Suite 360 Phoenix, AZ 85007

By ___________________________

----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D); 41-1061(A). [2] See A.R.S. § 32-3601 et seq. [3] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [6] This statute includes among the grounds for suspension, revocation, or other penalty against an appraiser license or certificate “[w]ilfully disregarding or violating any of the provisions of t his chapter or the rules of the board for the administration and enforcement of this chapter. [7] This statute authorizes the Board to “issue subpoenas for the attendance of witnesses and the production of books, records, documents and other evidence necessary and relevant to an investigation or hearing.”

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