ALJDEC decisions subject to certification as final

12F-DI-325-REL · Department of Real Estate · 2012-11-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 16, 2012 APPEARANCES: Assistant Attorney General Shelby Cuevas appeared on behalf of the Arizona Department of Real Estate. Respondent Alma Luz Pena did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. On August 29, 2012, the Arizona Department of Real Estate (Department) issued a Notice of Hearing and Complaint regarding this matter (Notice of Hearing) setting an administrative hearing to be held with the Office of Administrative Hearings at 8:00 a.m. on October 16, 2012. On the date of the hearing, the Administrative Law Judge convened the hearing at 8:25 a.m., which provided additional time for Respondent Alma Luz Pena to appear. After expiration of the additional time, Respondent failed to appear and the hearing proceeded. 2. The Notice of Hearing contained allegations regarding the conduct of Respondent that the Department contended violated the Arizona real estate laws. Through the administrative hearing process, the Department sought to revoke Respondent’s real estate salesperson’s license and to impose a civil penalty of not more than $1000.00 for each violation of the State’s real estate laws. 3. On September 25, 2012, the Commissioner of the Department (Commissioner) issued Findings of Fact, Conclusions of Law, and Order deeming admitted the allegations set forth in the Notice of Hearing, and revoked Respondent’s real estate salesperson’s license. 4. The Department argued that the Respondent’s violation of A.R.S. § 32-2153(B)(2), A.R.S. § 32-2153(B)(5), A.R.S. § 32-2153(B)(7), A.R.S. § 32-2153(B)(10), A.R.S. § 32- 2153(A)(3), and, collectively, A.A.C. R4-28-301(F) and R4-28-303(D) warranted the imposition of a civil penalty for the six violations of law, for a total civil penalty of $6000.00. 5. Respondent did not present any evidence or legal argument to refute or rebut the evidence or legal arguments presented by the Department in support of the imposition of civil penalties in this matter. 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. The Commissioner has the authority to impose a civil penalty of up to $1000.00 for each violation of the Arizona real estate laws. See A.R.S. § 32-2160.01. 4. The Department proved by a preponderance of the evidence, and the Commissioner of the Department found in the September 25, 2012 Findings of Fact, Conclusions of Law, and Order that Respondent violated: (i) A.R.S. § 32-2153(B)(2), A.R.S. § 32-2153(B)(5), and A.R.S. § 32- 2153(B)(10) because she was convicted in a court of competent jurisdiction of a felony involving forgery, theft, extortion, fraud, substantial misrepresentation, dishonest dealings, or violence against another person; (ii) A.R.S. § 32-2153(B)(7) by engaging in conduct demonstrating that Respondent was not a person of honesty, truthfulness, and good character; and (iii) A.R.S. § 32-2153(A)(3), A.A.C. R4-28-301(F), and A.A.C. R4-28-303(D) by failing to timely report to the Department Respondent’s felony conviction. 5. By engaging in the conduct as found in the above Findings of Fact, Conclusions of Law, and Order issued by the Commissioner, Respondent was 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). 6. Based upon the above, grounds exist to impose a total civil penalty in the amount of $3000.00 against Respondent for the three violations found above, pursuant to A.R.S. § 32-2160.01, and a $3000.00 civil penalty is determined to be reasonable and appropriate under the circumstances. ORDER Within 60 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 $3000.00, 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 days from the date of that certification. Done this day, November 5, 2012.

/s/ Tammy L. Eigenheer 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