ALJDEC decisions subject to certification as final

12F-DI-257-REL · Department of Real Estate · 2013-04-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 8, 2013 APPEARANCES: Assistant Attorney General Lynette Evans represented the Arizona Department of Real Estate. Respondent Cindy Annette Qualtiere did not appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ FINDINGS OF FACT

1. The Arizona Department of Real Estate (“Department”) issued a Notice of Hearing and Complaint regarding this matter on February 15, 2013 (“Notice of Hearing”), setting an administrative hearing to be held with the Office of Administrative Hearings on April 8, 2013, at 1:00 p.m.

2. The Administrative Law Judge convened the hearing on April 8, 2013, at 1:15 p.m., giving Respondent Cindy Annette Qualtiere additional time to make an appearance. After expiration of that time, Ms. Qualtiere failed to appear or be represented, and the hearing proceeded on the merits.

3. The Notice of Hearing contained allegations regarding the conduct of Ms. Qualtiere that the Department contended violated the Arizona real estate laws. Through the administrative hearing process, the Department sought to revoke Ms. Qualtiere’s real estate license and impose a civil penalty.

4. On May 19, 1989, the Department issued real estate salesperson’s license SA035475000 to Ms. Qualtiere. See Exhibit 1. This license expires on May 31, 2013, and is currently suspended. Id.

5. Robin King, the Department’s Manager of Investigations and Development Services, testified that on April 11, 2011, Ms. Qualtiere was indicted on charges of Computer Tampering, a Class 3 felony, and Theft by Extortion, a Class 4 felony, for acts committed between August 17, 2009, and September 3, 2009, against her employer. See Exhibit 2.

6. The circumstances underlying the charges against Ms. Qualtiere are as follows:

a) Ms. Qualtiere was employed by a property management company that hired a new manager who was Ms. Qualtiere’s supervisor, and with whom Ms. Qualtiere did not get along;

b) Ms. Qualtiere was terminated from her employment;

c) The day after her termination, Ms. Qualtiere sent sexually harassing emails to herself, pretending to be her supervisor;

d) Subsequent to her termination, Ms. Qualtiere returned to her place of employment to advise the owner that it was a mistake to have hired the new manager, and Ms. Qualtiere accused the manager of sexual harassment;

d) The property management company conducted an internal investigation and the police also conducted an investigation; and

e) It was discovered that the emails had been sent from Ms. Qualtiere’s IP address.

7. On October 27, 2011, Ms. Qualtiere entered into a plea agreement and plead no contest to an amended charge of Criminal Impersonation, a Class 6 designated felony. See Exhibit 3.

8. On January 9, 2012, Ms. Qualtiere was adjudged guilty of Criminal Impersonation, a Class 6 felony, in The State of Arizona v. Cindy Annette Qualtiere, Maricopa County Superior Court Case Number CR2011-005962-001DT. See Exhibit 5. Ms. Qualtiere was sentenced to supervised probation for a period of one year. Id. Ms. Qualtiere was also ordered to pay a fine in the amount of $1,840.00, as well as probation fees. Id.

9. On March 1, 2012, the Department issued an Order of Summary Suspension and Notice of Opportunity for Hearing, summarily suspending Ms. Qualtiere’s real estate salesperson’s license. See Exhibit 6. Ms. Qualtiere did not appeal the Order of Summary Suspension.

CONCLUSIONS OF LAW

1. Pursuant to A.R.S. Title 32, Chapter 20, the Department has the authority and duty to regulate all persons engaged in the business of, or acting in the capacity of, a real estate broker or salesperson, and to enforce all statutes, rules, and regulations relating to real estate. 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. Pursuant to A.R.S. § 32-2153(B), the Department may suspend or revoke a license when a licensee has:

. . .

2. Been convicted in a court of competent jurisdiction in this or any other state of a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense. . . .

7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character. . . .

10. Violated any federal or state law, regulation or rule that relates to real estate or securities or that involves forgery, theft, extortion, fraud, substantial misrepresentation, dishonest dealings or violence against another person or failure to deal fairly with any party to a transaction that materially and adversely affected the transaction. This paragraph applies equally to violations of which the licensee was convicted in any lawful federal or state tribunal and to any admissions made in any settlement agreement by the licensee to violations.

4. The Department proved by a preponderance of the evidence that Ms. Qualtiere violated A.R.S. § 32-2153(B)(2), (B)(7), and (B)(10) due to her felony conviction for Criminal Impersonation resulting from her actions delineated above. 5. Due to Ms. Qualtiere’s violations of A.R.S. § 32-2153(B)(2), (B)(7), and (B)(10), she is found to have disregarded or violated the provisions of A.R.S., Title 32, Chapter 20, within the meaning of A.R.S. § 32-2153(A)(3). The Commissioner of the Department has the authority to suspend or revoke Ms. Qualtiere’s license pursuant to A.R.S. § 32-2153(A)(3). 6. Pursuant to A.R.S. § 32-2160.01, grounds exist for the imposition of a civil penalty not to exceed $1,000.00 per violation of A.R.S. Title 32, Chapter 20. The Administrative Law Judge concludes that the imposition of a $3,000.00 civil penalty ($1,000.00 per each of Ms. Qualtiere’s three violations of the State’s real estate laws as delineated above) is warranted and reasonable.

ORDER

On the effective date of the Order entered in this matter, Ms. Qualtiere’s real estate salesperson’s license shall be revoked.

It is further ordered that within sixty (60) days of the effective date of the Order entered in this matter, Ms. Qualtiere shall pay a civil penalty in the amount of $3,000.00 to the Department, and such payment shall be made by cashier’s 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 (5) days from the date of that certification.

Done this day, April 22, 2013.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate -----------------------

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