ALJDEC decisions subject to certification as final

10F-DI-721-REL · Department of Real Estate · 2011-06-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 20, 2011 APPEARANCES: Assistant Attorney General Lynette Evans on behalf of the Arizona Department of Real Estate; Jonathan Mark Saylors on his own behalf. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. On July 27, 1979, the Arizona Department of Real Estate (“Department”) issued real estate broker’s license, No. BR004588000 (“License”), to Jonathan Mark Saylors (“Respondent”). The License has been renewed over the years and expires on October 31, 2011. 2. Vicky Rokkos (“Ms. Rokkos”), the Business Services Manager with the Department, testified that in 2007, the Department changed from having real estate licenses (“licenses”) renewed every two years to being renewed every four years, with the license period beginning on the first day after expiration of the date of the previous license. Ms. Rokkos testified that as of July 2010, the Department reverted back to requiring a license being renewed every two years. 3. Ms. Rokkos further testified that, at all times relevant to this matter, the Department required licensees to complete 24 hours of continuing education (“CE”) every two years. 4. Ms. Rokkos testified that the License that was issued to Respondent as a result of the most recent renewal was a four year license in accordance with the above-mentioned change regarding the term of a broker’s license. 5. Ms. Rokkos testified that all real estate licensees must provide proof of completion of the required CE classes by inputting the required information on-line into the Department’s database within the requisite 24 month time period and that the requirement was not affected when the license term was changed from two years to four years. 6. According to Ms. Rokkos, although not required by law, the Department provides courtesy notices to licensees to remind them to complete CE and provide proof of that to the Department. This occurs through issuance of emails that are sent 90, 60, and 30 days in advance of the CE deadline. Ms. Rokkos testified that shortly after the CE deadline has passed, the Department sends a letter to licensees extending a one month grace period for licensees in order to provide them with an opportunity to meet their CE requirements and avoid disciplinary action. 7. On November 3, 2009, the Department sent a letter to Respondent at his address of record informing him that as of October 31, 2009, he had not completed his CE requirements. See Exhibit B. The letter also informed Respondent that he had 30 days from the date of the letter in which to comply with the law or disciplinary action might ensue and a penalty imposed. Id. 8. On January 6, 2010, the Department sent another notification letter to Respondent at his address of record indicating that the Licensing Division of the Department had referred Respondent’s case to the Department’s Enforcement and Compliance Division due to Respondent’s failure to have completed the requisite CE. See Exhibit C. 9. On January 7, 2010, the Department sent another letter to Respondent at his address of record that stated that failure to respond in writing to the Department regarding Respondent’s failure to complete the requisite CE is a violation that may result in further disciplinary action. See Exhibit D. 10. Ms. Rokkos testified that on March 4, 2010, the Department sent a letter to Respondent at his address of record by mail, certified mail, and email informing him that he still had not completed his CE requirements, that disciplinary action may be instituted, and that failure to respond to the letter would be considered a violation of A.R.S. § 32-2153(B)(1) and may result in further disciplinary action. See Exhibit E. Ms. Rokkos further testified that the Department could not present any documentation showing that the notification by email, mail, or certified mail, was received by Respondent. However, Ms. Rokkos also testified that she did not know of any letter or envelope that the Department sent to Respondent that was returned as undeliverable. 11. Ms. Rokkos testified that, as of the dates when the above-mentioned letters were sent, the License was active. 12. Ms. Rokkos also testified that the Department’s licensing records show that in February 2011, Respondent had completed the requisite CE that should have been completed by October 31, 2009. 13. The Department is seeking revocation of the License and the imposition of a $1,000.00 civil penalty for Respondent’s failure to complete the requisite 24 CE credits within the 24 month time frame as required by law. 14. Respondent testified that in his experience as a real estate licensee in the past, prior Commissioners did not take any disciplinary action against a licensee who failed to complete CE requirements. Respondent maintained that he has been a real estate broker for 27 years and been involved in 1,800 real estate transactions without having any complaints lodged against him or any disciplinary action taken against the License with the exception of the instant matter. 15. Respondent also testified that he suffers from diabetes as a result of exposure to Agent Orange and, when his blood sugar reaches a high level, his mental faculties become affected. He also testified as to other ailments from which he suffers, that he has been determined disabled by the State of Hawaii, the Veterans Administration, and the Social Security Administration, and provided documentation to corroborate the disability determinations. 16. Respondent asserted that due to his disability, he was unable to function and unable to take care of activities of daily living without assistance of his neighbors. Respondent testified that he could not function properly until October 27, 2010, when he moved from Arizona to Hawaii and was able to breathe and function better. 17. Respondent further testified that in 2010 he was hospitalized twice due to high blood sugar and provided documentation to corroborate his testimony. Respondent also testified that in either late 2008 or early 2009, he was hospitalized for high blood sugar. According to Respondent, with respect to those hospitalizations, his stays in the hospital never lasted more than one day, and he was released when his blood sugar lowered to an acceptable level. Respondent further testified that even after he was discharged from the hospital, his mental faculties were affected for a period of time. Respondent explained that there have been other hospitalizations but that due to his medical condition and disability, his memory is “fuzzy”, and he can not recall the specifics. Thus Respondent was unable to testify about those hospitalizations or provide records of hospitalization other than those presented at the instant hearing. 18. The Department asserted that the hospitalizations that were documented occurred in 2010 after the CE requirements were to have been fulfilled and the Department also asserted that even if there was one hospitalization in 2008 or 2009, Respondent had 24 months in which to complete the CE and that the duration of the hospitalization was not more than one day, as testified to by Respondent. 19. Ms. Rokkos testified that Respondent could have attempted to obtain a waiver of the CE requirements from the Commissioner of the Department (“Commissioner”) or contact the Department and place the License on inactive status. Respondent testified that he was unaware of the availability of obtaining a waiver or exemption from the CE requirements. CONCLUSIONS OF LAW 1. Because this matter is disciplinary in nature, the Department bears the burden of proof. The standard of proof on all issues is by a 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. Real estate licensees are required to present to the Department evidence of attendance of CE courses prescribed and approved by the Commissioner, at a school certified by the Commissioner, during the preceding license period, of 24 credit hours during each 24 month period of licensure. See A.R.S. § 32-2130(A). 4. For license renewal, a licensee must complete 24 credit hours of CE with a minimum of three credit hours in each category specified in A.A.C. R4-28-402(A)(5)(a) through (A)(5)(f). 5. Although Respondent relied on the fact that in the past, the Department had not taken disciplinary action against a licensee for non- compliance with CE requirements, the law pertaining to CE requirements was in effect, and Respondent was obligated to follow the law. The evidence of record established that Respondent failed to comply with the CE requirements within the required time frame as set forth in A.R.S. § 32- 2130(A). 6. The weight of the evidence of record established that Respondent violated the provisions of Title 32, Chapter 20 of the Arizona Revised Statutes, in violation of A.R.S. § 32-2153(A)(3). 7. 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. The Department not only sought the imposition of a civil penalty in the amount of $1,000.00 for the above-mentioned violations, but also sought revocation of the License. In contrast to the Department’s position, Respondent requested that no penalty be imposed, that no violations be found to exist, and that no action be taken against the License. The Administrative Law Judge concludes that grounds exist to revoke, refuse to renew, or suspend Respondent’s license pursuant to A.R.S. §§ 32-2153(A)(3). 8. The Administrative Law Judge has considered the series of events that transpired, as set forth above, that constitute mitigating circumstances. The Administrative Law Judge concludes that Respondent was required to complete his CE requirements as set forth in A.R.S. § 32-2130(A) and A.A.C. R4-28-402(A)(5). However, the Administrative Law Judge notes that Respondent‘s disability and medical condition caused him at times to be confused and not mentally alert. 9. Under the circumstances, there being no evidence of aggravating circumstances and there being mitigating circumstances, and the fact that Respondent is current with the CE requirements, the Administrative Law Judge concludes that revocation of the License to be severe and unwarranted, and that a $250.00 civil penalty is an appropriate penalty to be imposed upon Respondent for the above-found violations of law. ORDER Within 30 days of the effective date of the Order entered in this matter, Respondent is to pay to the Department a civil penalty in the sum of $250.00. 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, June 29, 2011.

/s/ Lewis D. Kowal Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

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