ALJDEC decisions subject to certification as final

12F-DI-123-REL · Department of Real Estate · 2013-03-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 6, 2013 APPEARANCES: Assistant Attorney General Shelby Cuevas on behalf of the Arizona Department of Real Estate; Toni M. Dimaggio on her own behalf. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. On August 24, 2007, the Arizona Department of Real Estate (“Department”) issued Toni M. Dimaggio (“Respondent”) a real estate broker’s license, No. BR520343000 (“License”). The License expires on August 31, 2013. See Exhibit 1. 2. Carla Randolph (“Ms. Randolph”), the Education Manager with the Department, testified that at all times relevant to this matter the Department required licensed brokers to attend a broker management clinic and complete 24 hours of continuing education (“CE”) every two years. 3. Ms. Randolph testified that the license period at issue is September 1, 2009, through August 31, 2011, and that Respondent was required to complete 24 hours of CE and attend a broker management clinic by August 31, 2011. 4. Ms. Randolph testified that on September 7, 2011, the Department sent a letter to Respondent at her business address informing Respondent that as of August 31, 2011, she had failed to comply with and complete the CE requirements. Further, the letter informed Respondent that she had 30 days from the date of the letter to comply with the law or disciplinary action might ensue and a penalty might be imposed. The letter also provided Respondent with three options: (1) upload her CE requirements online, (2) place the License on inactive status, or (3) do nothing and be in non- compliance, which could result in summary suspension of the License. See Exhibit 2. 5. On October 13, 2011, the Department sent another notification letter to Respondent at her business address 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 3. 6. On October 31, 2011, the Department sent a letter to Respondent at her business address that stated that her failure to respond in writing to the Department regarding Respondent’s failure to complete the requisite CE is a violation that may result in disciplinary action. See Exhibit 4. 7. Ms. Randolph testified that on October 31, 2011, the Department sent a Final Notice letter to Respondent at her residential address informing her that she was still deficient in completing her CE requirements. See Exhibit 5. 8. Ms. Randolph testified that on November 15, 2011, the Department also sent a letter to Respondent’s residential address that referenced the Final Notice letter of October 31, 2011. 9. Respondent acknowledged that she did not complete the CE timely and testified that during the relevant time period the License was on active status but she has not actively engaged in real estate business activities since February 2011. Respondent explained that in January 2011, she informed the salespersons who were working at Principal Realty Group, where she was the designated broker, that they had one month to find another broker for whom to work and that they were not to perform real estate work under her broker’s license as of February 2011. 10. Respondent testified that she kept her license active in the event that real estate business came in she would be able to conduct business under the License. Respondent testified that when she stopped real estate business activities, she worked as a manager of a cosmetology establishment, worked long hours and did not have the time or funds to take the CE courses. 11. Respondent asserted that she only received one letter by email, Exhibit 5, on October 31, 2011, but that because of her financial situation she could not afford to take the CE courses. Further, Respondent asserted that she changed her business and mailing address on-line with the Department but did not have any documentary evidence to present to support such testimony. In contrast, Ms. Randolph testified that although a licensee may change a residential address on-line a licensee cannot change a business address on-line. 12. Ms. Randolph testified that the Department’s records show that the letters the Department sent were sent to the business and residential addresses the Department had for Respondent and that as of the date of the hearing, those addresses are still the addresses of record for Respondent.

13. According to Ms. Randolph, a licensee is responsible to complete the CE courses and, although the Department provides courtesy reminders to the licensee of the need to complete the CE, the Department is not required to provide such notice. 14. Ms. Randolph testified that the Department’s records show that Respondent did not complete the required CE courses and did not attend a broker management clinic as of August 31, 2011, and to date has not completed those requirements. Ms. Randolph also testified that the Department’s records do not show that Respondent attempted to obtain a waiver or extension of time regarding her CE requirements though a process was available to licensees for such purpose. 15. The Department sought imposition of a $1,000.00 civil penalty to be paid within 30 days of the effective date of the Order entered in this matter for Respondent’s failure to complete the requisite CE and her failure to attend a broker management clinic within the 24 month time frame as required by law. 16. Respondent testified that she cannot afford to pay the civil penalty that the Department seeks. 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 “[e]vidence 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. Even if Respondent did not receive all of the courtesy letters sent by the Department, the laws were in effect that required Respondent to attend a broker management clinic and to complete 24 CE credits within 24 months (in this case by August 31, 2011). Respondent was obligated to comply with the law. See A.R.S. §§ 32-2130(A) and 32-2136(C). 6. The evidence of record established that Respondent failed to comply with the CE requirements and failed to attend a broker management clinic within the required time frame as set forth in A.R.S. §§ 3-2130(A) and 32- 2136(C). 7. 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). 8. 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. 9. Although there was some evidence of mitigating circumstances i.e., the lack of financial resources available to Respondent, that does not excuse Respondent’s non-compliance given the fact that Respondent could have but did not seek to obtain a waiver or extension of time. The Administrative Law Judge concludes that a $1,000.00 civil penalty is an appropriate penalty to be imposed upon Respondent for the above-found violations but, taking into account Respondent’s financial situation and the date when the License is to expire, Respondent should be given an adequate time period to pay the civil penalty imposed. ORDER Within 90 days of the effective date of the Order entered in this matter, Respondent shall pay to the Department a civil penalty in the amount of $1,000.00 by providing such payment to the Department by a cashiers check or money order made payable to the Department. 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 days from the date of that certification. Done this day, March 25, 2013.

/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