ALJDEC decisions subject to certification as final

10F-DI-1201-REL-res · Department of Real Estate · 2013-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 18, 2012 APPEARANCES: No one appeared. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ Based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made: FINDINGS OF FACT 1. The hearing of the above-captioned matter was scheduled to convene on December 18, 2012, at 1:00 p.m. pursuant to the Notice of Hearing and Complaint issued by the Arizona Department of Real Estate (“Department”) on September 28, 2012. 2. On November 21, 2012, the Office of Administrative Hearings received a Motion to Vacate Hearing from the Department. In its Motion, the Department advised that the matters involving Respondents Sammy Lewin, Ada Lewin, and A1 Property Management, LLC have been resolved, and requested that the hearing scheduled for December 18, 2012, at 1:00 p.m., be vacated as to those parties but proceed to hearing with regard to Respondent Steve Irwin. However, because the Department proceeded against all four Respondents in the same matter, the Administrative Law Judge issued a Minute Entry dated November 21, 2012, advising the parties that the hearing could not be vacated with respect to the parties that have resolved the matter. 3. On the date and at the time scheduled for hearing, no party appeared for the hearing, and there was no contact made by any party to continue the hearing, appear telephonically, or advise the Tribunal that there was a change in status of the matter. The start of the scheduled hearing was delayed for thirty minutes to afford added time for the parties to make an appearance, and no party appeared either individually or through any proper authorized or legal representative. 4. This is a disciplinary hearing in which the Department proposes to revoke Respondent Steve Irwin’s real estate broker’s license. Therefore, the Department bears the burden to establish the alleged violations of this State’s real estate laws. The Department, by the aforementioned default in appearance at the hearing did not present any evidence in support of the alleged violations with regard to Respondent Steve Irwin. 5. The Administrative Law Judge notes the respective resolutions involving Respondents Sammy Lewin, Ada Lewin, and A1 Property Management, LLC, and they are removed as parties to this matter. CONCLUSIONS OF LAW 1. The Department bears the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. A.R.S. §41- 1092.07(G)(2); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). 2. The Department by the aforementioned default in appearance at the hearing, failed to sustain the required burden of proving the alleged violations by Respondent Steve Irwin set forth in the Complaint by a preponderance of evidence. RECOMMENDED ORDER It is ordered in view of the foregoing, and in light of the lack of prosecution by the Department, that this matter as it pertains to Respondent Steve Irwin, be dismissed.[1]

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five (5) days from the date of that certification. Done this day, January 7, 2013.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] Respondents Sammy Lewin, Ada Lewin, and A1 Property Management, LLC, having resolved the matter with the Department, are no longer parties in this matter, though the caption has not been amended to reflect that change in status.

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