ALJDEC decisions subject to certification as final

07F-DI-236-REL · Department of Real Estate · 2007-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 11, 2007 APPEARANCES: Assistant Attorney General Alyse C. Meislik for the Arizona Department of Real Estate; C. Bannon Torino did not appear at the hearing ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ PROCEDURAL ISSUE 1. At the commencement of the hearing, the Arizona Department of Real Estate (“Department”) requested that paragraph 13 of the Notice of Hearing be amended to reflect references made to the provisions of the Arizona Revised Statutes (“A.R.S.”) in paragraphs that precede paragraph 13, namely, that subsections (A)(10) and (A)(22) of A.R.S. § 32-2153(A) that provide grounds for suspension, revocation or denial of renewal or right of renewal be added to paragraph 13 and the reference to (A)(11) in paragraph be deleted. 2. The Administrative Law Judge notes that there is no prejudice in granting the Department’s request to amend the Notice of Hearing because the Notice of Hearing contains references to A.R.S. §§ 32-2153(A)(10) and (22). Therefore, the Administrative Law Judge hereby grants the Department’s request to amend the Notice of Hearing. FINDINGS OF FACT 1. On January 31, 2003, C. Bannon Torino (“Mr. Torino”) submitted to the Arizona Department of Real Estate (“Department”) an application for a real estate salesperson’s license in Arizona. On the same date, the Department issued Mr. Torino an Arizona real estate sales person’s license with an expiration date of January 31, 2007. 2. Shortly after August 18, 2006, the Department received a complaint from C. Dale Hillard (“Mr. Hillard”), Mr. Torino’s Designated Broker at West USA Realty, Inc. (“West USA”) of Mr. Torino’s termination of employment with West USA. The severance of employment was based upon Mr. Torino’s failure to notify Mr. Hillard of real estate activity more fully described below, and the inability of Mr. Hilliard to contact Mr. Torino by telephone. 3. In a multiple listing involving 20922 North 38th Place, Phoenix, Arizona (Escrow No. 02054518), Mr. Torino appears to have represented the buyer. According to Department senior investigator Robin King (“Investigator King”), who reviewed Mr. Hillard’s complaint and related documents, Guaranty Title Agency, the entity that handled the escrow, had informed Mr. Hillard that the buyer forfeited the earnest money to the seller. The record established that Mr. Torino did not notify Mr. Hillard of the cancellation of the transaction, which occurred on July 3, 2006. 4. In a multiple listing involving 4214 West Keim Drive, Phoenix, Arizona (Escrow No. 02054590), Mr. Torino appears to have represented the buyer. According to Investigator King, who reviewed Mr. Hillard’s complaint and related documents, Guaranty Title Agency, the entity that handled the escrow, had informed Mr. Hillard that the buyer forfeited the earnest money to the seller. The record established that Mr. Torino did not notify Mr. Hillard of the cancellation of the transaction, which occurred on July 5, 2006. 5. On June 5, 2006, Mr. Torino placed a property located at 5318 East Sheena Drive, Scottsdale, Arizona, in a multiple listing and did not notify Mr. Hillard of such transaction. According to the multiple listing records, the property was sold and off the market as of August 10, 2006. 6. Robert Stephens (“Mr. Stephens”) the managing broker at West USA testified that Mr. Torino was terminated from employment at West USA on August 17, 2006 for failure to notify Mr. Hillard of the above-mentioned real estate activity and failing to provide documentation to Mr. Hilliard, and West USA’s inability to communicate and obtain responses from Mr. Torino. 7. Mr. Stephens also testified that subsequent to Mr. Torino’s termination, West USA received information from Mr. Torino confirming the above-mentioned real estate activity but did not receive any documentation regarding those activities. West USA obtained documentation regarding the above-mentioned real estate activity from Guaranty Title Agency based on information provided by Mr. Torino. 8. On September 8, 2006, the Department sent a letter to Mr. Torino notifying him of the complaint filed by Mr. Hillard regarding the failure to notify Mr. Hillard of real estate activity. The letter requested that Mr. Torino respond to the complaint and provide documentation regarding the real estate activity in question. 9. Having received no response to the September 8, 2006 letter, on October 3, 2006, the Department sent Mr. Torino a second notification letter requesting an answer to Mr. Hillard’s complaint and documentation relating to the real estate activity. The envelope containing the October 3, 2006 notification letter was returned to the Department by the United States Postal Service marked “unclaimed”. 10. Investigator King testified that the address to which the above- mentioned letters were mailed was the address of record the Department had for Mr. Torino and that Mr. Torino never provided any updated information to the Department concerning a change of business address. 11. As of the date of the hearing, the Department has not received any response from Mr. Torino regarding Mr. Hillard’s complaint. CONCLUSIONS OF LAW 1. This matter is a disciplinary matter and, as such, the Department must prove by a preponderance of the evidence that Mr. Torino violated the statures and rules pertaining to a licensed real estate salesperson, as set forth in the Notice of Hearing issued in this matter. 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). It is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). 3. The weight of the evidence of record established that Mr. Torino violated the provisions of A.R.S. § 32-2153(A)(9) by failing to notify Mr. Hillard of a cancellation of a contract. 4. The weight of the evidence of record established that Mr. Torino demonstrated negligence in performing an act required of a licensee, in violation A.R.S. § 32-2153(A) (22). 5. The weight of the evidence of record established that Mr. Torino failed to respond the Department in the course of its investigation of Mr. Hillard’s above-mentioned complaint by providing documents or written statements, in violation of A.R.S. § 32-2153(B)(11). 6. The weight of the evidence of record established that Mr. Torino is not a person of good character within the meaning of A.R.S. § 32-2153(B)(7) by having failed to act responsibly as a licensee, in failing to notify Mr. Hilliard of real estate activity and failing to respond to the Department’s investigation of a complaint, without explanation. 7. The weight of the evidence of record failed to establish that Mr. Torino accepted compensation from someone other than the licensed broker to whom he was licensed, and failed to establish that Mr. Torino received compensation in violation of Title 32, Chapter 20. Thus, no violations of A.R.S. §§32-2153(A)(7) or 32-2153(A)(10) are found to exist. 8. The weight of the evidence of record established that Mr. Torino violated the provisions of the Commissioner of the Department, in violation of A.R.S. § 32-2153(A) (3) and A.A.C R4-28-1101(C). However, the weight of the evidence of record does not support a finding of a violation of A.A.C. R4-28-1101(A) or A.A.C. R4-28-1101(H). 9. Grounds exist to suspend, revoke, deny the renewal or right of renewal of Mr. Torino’s real estate salesperson’s license pursuant to A.R.S. §§ 32-(A)(3), (A)(9), (A)(22), (B)(7) and (B)(11). 10. Grounds exist to impose a civil penalty against Mr. Torino of not more than $1,000.00 per violation pursuant to A.R.S. § 32-2160.01. However, the Administrative Law Judge concludes that Mr. Torino’s real estate salesperson’s license should be revoked but there be no civil penalty imposed.

ORDER Based on the above, Mr. Torino’s real estate salesperson’s license is revoked as of the effective date of the Order entered in this matter. Done this day, April 26, 2007.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Department of Real Estate Samuel P. Wercinski, Commissioner 2910 North 44th Street, Suite 100 Phoenix, AZ 85018

By ___________________________

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