ALJDEC decisions subject to certification as final

13F-DI-195-REL · Department of Real Estate · 2013-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 4, 2013 APPEARANCES: Respondent Nathan McGowan appeared on his own behalf. Assistant Attorney General Lynette Evans represented the Arizona Department of Real Estate. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ FINDINGS OF FACT 1. On September 20, 2013, 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 on December 4, 2013, at 1:00 p.m. On the date and at the time set for hearing, Respondent Nathan C. McGowan appeared on his own behalf. Assistant Attorney General Lynette Evans represented the Department. 2. The Notice of Hearing contained allegations regarding the conduct of Mr. McGowan that the Department contended violated the Arizona real estate laws. Through the administrative hearing process, the Department sought to impose a civil penalty of not more than $1,000.00 for each violation of the State’s real estate laws. 3. On January 8, 2004, the Department issued a real estate salesperson license number SA [number redacted] to Mr. McGowan. See Exhibit 1. That license expires on January 31, 2014, and is currently inactive. Id. 4. On October 6, 2011, Mr. McGowan pled guilty to Criminal Trespass, a class 1 misdemeanor, in State of Arizona v. Nathan Carl McGowan, Case Number CR2011-109659-001 SE in Maricopa Court Superior Court. See Exhibit 2. Mr. McGowan was ordered to pay a fine totaling $460.00. Id.

5. Mr. McGowan did not notify the Department within ten days of the October 6, 2011 conviction. 6. The Department’s witness, Senior Investigator Wendy Greenwood, testified that the Department learned of Mr. McGowan’s October 6, 2011 conviction in August 2012, when Mr. McGowan self-reported a misdemeanor conviction for Driving Under the Influence (“DUI”). 7. Mr. McGowan testified regarding his background, specifically, that he was in the aerospace industry until 2011, when he was accepted into a Bible college. Mr. McGowan explained that on the night he was arrested for Criminal Trespass (October 10, 2010), he was a student and he went for a walk in Tempe. Mr. McGowan rode the Light Rail, but had purchased the incorrect pass (a student pass, but he did not have his student identification in his possession at the time), and was asked to disembark the train. Mr. McGowan did so and was walking the tracks back to his vehicle. On his way back to his vehicle, he stopped on the Light Rail Bridge at Tempe Town Lake to watch it being refilled. When Mr. McGowan reached the other side of the bridge, he was arrested because he was not supposed to be on the bridge. Mr. McGowan testified that he had not noticed the signage advising that there was to be no one on the bridge and was not aware that he was trespassing. 8. Mr. McGowan testified that subsequent to his arrest, he obtained his ministry license and joined a homeless shelter. Mr. McGowan testified that during the legal proceedings regarding the Criminal Trespass charge, he was living at the shelter in a leadership capacity helping the homeless. Mr. McGowan testified that his public defender advised him not to plead guilty, but he wanted to put the incident behind him, and so he pled guilty to the charge of Criminal Trespass. 9. Mr. McGowan credibly testified that when he pled guilty to the charge of Criminal Trespass, he had not conducted real estate transactions in the previous 4 ½ years and it “slipped his mind” and was not “on his radar” to call the Department to advise of the conviction because he was living in a tent at the shelter without access to a computer. However, Mr. McGowan acknowledged that he had a cell phone and should have called the Department. 10. Mr. McGowan testified that thereafter, the State shut down the homeless shelter, and years later he was charged and convicted of DUI. Mr. McGowan testified that when he disclosed the DUI conviction to the Department, he was “not even thinking about the trespass charge.” Mr. McGowan testified that he would have disclosed the trespass conviction, but it was not at the forefront of his mind and the DUI conviction was more serious and he disclosed that conviction with ten days as required by the Department. 11. Mr. McGowan is currently employed at Aerotech International and wishes to renew his real estate license in the future. Mr. McGowan testified that he paid the Superior Court fine. Mr. McGowan testified that he believes a civil penalty in the amount of $250.00 would be fair. 12. The Department argued that Mr. McGowan’s violations of A.A.C. R4-28-301(F) and A.A.C. R4-28-303(D) warrant the imposition of a civil penalty for the violations of law. However, the Department deferred the amount of the civil penalty to the discretion of the Tribunal. CONCLUSIONS OF LAW 1. This matter lies within the jurisdiction of the Department. See A.R.S. Title 32, Chapter 20. 2. 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. 3. 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). 4. Pursuant to A.A.C. R4-28-301(F), “[e]ach salesperson . . . shall, within 10 days of each occurrence, notify the Commissioner in writing of any change in information provided under subsection (A)(1)(a) through (d) and provide documentation listed in subsection (A)(2).” 5. A.A.C. R4-28-303(D) requires the following: A salesperson or broker shall notify the Department in writing within days of any change in the individual's personal information or qualifications. The salesperson or broker shall include in the notice the individual's name, signature, license number, and: 1. If disclosing information required under R4-28-301, such as a criminal conviction, adverse judgment, denial or restriction of or disciplinary action against a professional or occupational license, or recovery fund payment on the person's behalf, a written statement providing detailed information and, upon request by the Department, the supporting documentation identified in R4-28-301(A)(2).

6. The Commissioner has the authority to impose a civil penalty of up to $1,000.00 for each violation of the Arizona real estate laws. See A.R.S. § 32-2160.01. 7. The Department proved by a preponderance of the evidence that Mr. McGowan violated A.A.C. R4-28-301(F) and A.A.C. R4-28-303(D). 8. The Administrative Law Judge concludes based on the evidence of record, that Mr. McGowan disregarded or violated the provisions of A.R.S., Title 32, Chapter 20, within the meaning of A.R.S. § 32-2153(A)(3). 9. Pursuant to A.R.S. § 32-2160.01(A), grounds exist for the imposition of a civil penalty for the above-found violations, not to exceed $1,000.00 for each violation. 10. Based upon the totality of the evidence, including Mr. McGowan’s credible testimony and the Department’s deferral regarding the appropriate civil penalty, the Administrative Law Judge concludes that a total civil penalty in the amount of $250.00 against Mr. McGowan for the violations found above is reasonable and appropriate under the circumstances. ORDER Within sixty (60) days of the effective date of the Order entered in this matter, Mr. McGowan shall pay to the Department a civil penalty in the amount of $250.00, 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 (5) days from the date of that certification.

Done this day, December 10, 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