ALJDEC decisions subject to certification as final

10F-DI-1227-REL · Department of Real Estate · 2011-01-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 3, 2011 APPEARANCES: Assistant Attorney General Lynette Evans on behalf of the Arizona Department of Real Estate; Vicki Saunders on her own behalf. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. The Arizona Department of Real Estate (“Department”) issued a Notice of Hearing and Complaint on November 30, 2010, (“Notice of Hearing”) setting an administrative hearing to be held with the Office of Administrative Hearings. 2. The Notice of Hearing contained allegations regarding the conduct of Vicki Saunders (“Respondent”) that the Department claimed were violations of the Arizona real estate laws. Through the administrative hearing process, the Department sought to have an order of summary suspension of Respondent’s real estate broker’s license upheld, to have Respondent’s real estate broker’s license revoked, and to impose a civil penalty of not more than $1,000.00 for each violation of the State’s real estate laws. 3. On December 21, 2010, the Commissioner of the Department (“Commissioner”), issued Findings of Fact, Conclusions of Law and Order deeming the allegations set forth in the Notice of Hearing, upholding the October 5, 2010 Order of Summary Suspension, and revoking Respondent’s real estate broker’s license.

4. Linda Bevins (“Ms. Bevins”), a Senior Investigator with the Department testified that the Department was seeking a $17,000.00 penalty based upon finding that Respondent’s conduct, as set forth in the deemed allegations, constituted at least 17 violations of the State’s real estate laws. Ms. Bevins further testified that many of the violations were similar in nature, indicating to her that the acts were done deliberately on multiple occasions. According to Ms. Bevins, the violations involved Respondent taking monies of clients that were used for Respondent’s benefit rather than for the benefit of Respondent’s clients. 5. During the hearing, the Administrative Law Judge informed Respondent numerous times that the hearing was to consider the appropriateness of a civil penalty and that the acts and violations alleged in the Notice of Hearing were deemed admitted and determined by the Commissioner and could not be addressed by the Administrative Law Judge. Respondent asserted that no civil penalty should be assessed against her because she did not do the acts alleged in the Notice of Hearing. 6. Respondent testified that she paid $45,000.00 out of her retirement account to compensate some of her clients. Of the $45,000.00, Respondent testified that Earl Miller and Jose Ho were fully compensated. However, Respondent did not provide detailed information as to the amounts she paid to those individuals.[1] 7. Respondent’s daughter, Brandy Shirlaw, who worked on and off for Respondent during the relevant time, testified generally as to the procedure Respondent followed in her property management business when receiving security deposits. CONCLUSIONS OF LAW 1. Because this matter is disciplinary in nature, the Department has the burden of proof. The standard of proof on all issues is preponderance of the evidence. 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 Commissioner has already determined that Respondent’s conduct set forth in the Notice of Hearing violated A.R.S. §§ 32-2153(A)(1), 32- 2153(A)(3), 32-2153(A)(9), 32-2153(A)(16), 32-2153(A)(17), 32-2153(A)(22), , 32-2153(A)(24), 32-2153(B)(3), 32-2153(B)(7), 32-2153(B)(8), 32- 2153(B)(9), and 32-2153(B)(11). 4. The above-found violations of law constitute grounds for the imposition of a civil penalty not to exceed $1,000.00 per violation. See A.R.S. § 32-2160.01. 5. The Department established by a preponderance of the evidence that Respondent’s conduct, as determined by the Commissioner, constituted at least 17 acts in violation of the State’s real estate laws. Consequently, even though Respondent presented some evidence in mitigation, the nature and number of Respondent’s violations of law warrant the imposition of a $17,000.00 civil penalty, which is concluded to be reasonable and appropriate under the circumstances. ORDER Within forty days of the effective date of the Order entered in this matter, Respondent is to pay to the Department a civil penalty in the amount of $17,000.00. 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 5 days from the date of that certification. Done this day, January 20, 2011.

/s/ Lewis D. Kowal Administrative Law Judge Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] Mr. Miller and Mr. Ho were individuals who filed complaints with the Department against Respondent and allegations with respect to those complaints were deemed admitted by the Commissioner.

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