ALJDEC decisions subject to certification as final

13F-DI-209-REL · Department of Real Estate · 2013-06-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 27, 2013 APPEARANCES: Assistant Attorney General Shelby Cuevas for the Arizona Department of Real Estate; Leticia Ortiz appeared on her own behalf. ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. On April 30, 2007, the Arizona Department of Real Estate (“Department”) issued a real estate broker’s license, No. BR583843000, (“License”) to Leticia Ortiz (“Respondent”). The License expired on April 30, 2013. 2. On December 5, 2012, an administrative disciplinary hearing was held before the Office of Administrative Hearings, Docket No. 11F-DI-609-REL, in which the Department and Respondent appeared. That hearing involved allegations that Respondent failed to timely complete the required 24 hours of continuing education (“CE”), including a broker management clinic, for the license period of May 1, 2009 through April 30, 2011. 3. On December 21, 2012, the Administrative Law Judge issued a Decision in Docket No. 11F-DI-609-REL finding that the Department proved by a preponderance of the evidence that Respondent failed to comply with the CE requirements within the required time frame as set forth in A.R.S. §§ 32- 2130(A) and 32-2136(C). A civil penalty of $1,000.00 was found to be appropriate by the Administrative Law Judge and it was ordered that such penalty be paid to the Department within 60 days of effective date of the order entered in that matter, and that payment be made by a cashiers check or money order made payable to the Department. 4. In the Commissioner’s Final Order (“Final Order”) issued on December 21, 2012, the Commissioner of the Department adopted in its entirety the Administrative Law Judge’s Decision in Docket No. 11F-DI-609-REL and ordered the civil penalty be paid as determined by the Administrative Law Judge within 60 days of entry of the Final Order. 5. In the instant matter, Connie Johnson (“Ms. Johnson”), Compliance Manager with the Department, testified: a. With respect to expired licenses, licensees are provided a one year grace period in which they can renew the license by submitting a renewal application and completing the CE requirements. According to Ms. Johnson, after the one year grace period, the license terminates. b. The Final Order in Docket No. 11F-DI-609-REL was sent by certified mail return receipt requested to the Respondent’s address of record on file with the Department. c. The United States Postal Service’s (“Postal Service”) online tracking shows that the above-mentioned mailing of the Final Order was undeliverable. d. The $1,000.00 civil penalty was due to be paid by February 21, 2013, and has not been paid. e. On January 2, 2013, she sent Respondent a letter certified mail return receipt requested that referenced the Final Order and the February 21, 2013 deadline for paying the $1,000.00 civil penalty. f. The Postal Service returned to the Department the envelope containing the January 2, 2013 letter marked “unclaimed.” g. On or about February 25, 2013, she placed a telephone call to Respondent and discussed the Final Order requiring payment of the $1,000.00 civil penalty.[1] Respondent indicated she was unable to pay the civil penalty in full and requested a payment plan, which was declined by Ms. Johnson because the Final Order required full payment within 60 days of entry of the Order. h. During the February 25, 2013 telephone call, she requested that Respondent meet with her at the Department on February 27, 2013, at a specified time and Respondent agreed to do so. i. Respondent did not appear for the February 27, 2013 meeting. 6. Respondent testified that she did not receive the Final Order, though she expected a decision to be issued in Docket No. 11F-DI-609-REL. However, Respondent acknowledged that she became aware of the Final Order during the February 25, 2013 telephone conversation she had with Ms. Johnson, and in March or April 2013, she had seen it on the Department’s website when she entered her CE information online. 7. Respondent testified that the address to which the Final Order was mailed, but was determined by the Postal Service to be undeliverable, was her address at the time and is currently her address. Respondent also explained that she could not attend the February 27, 2013 meeting with Ms. Johnson because she could not get off of work. 8. Respondent did not dispute that she owed the civil penalty but explained that due to financial difficulties in that she works part-time at Target and is a single mother raising four children, she has been unable to pay the $1,000.00 civil penalty. Respondent asserted that she has not refused to pay the civil penalty and although she had hoped to make payment in advance of the instant hearing, she was financially unable to make the payment. 9. The Department requested that the License be revoked, and Respondent requested that she be granted an opportunity to have a payment plan or payment options to pay the civil penalty and to keep the License. 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 Department may proceed against the License even though it has expired because Respondent has one year from expiration of the License to renew the License. See A.R.S. §§ 32-2124(H) and 32-2130(G). 4. The evidence of record established that Respondent did not receive the Final Order that was mailed certified mail return receipt requested by the Department. But the fact that the Postal Service determined it to be undeliverable should not be held against Respondent in the same manner as an unclaimed letter would be. However, it is undisputed that Respondent appeared at the hearing in Docket No. 11F-DI-609-REL and was expecting a decision. Further, Respondent became aware of the Final Order during the February 25, 2013 telephone conversation she had with Ms. Johnson and Respondent acknowledged having gone on the Department’s website and having seen the Final Order. Therefore, Respondent received notice of the Final Order and was made aware that she was ordered to pay the $1,000.00 civil penalty and has had months to pay the civil penalty but has not done so. Consequently, the evidence of record established that Respondent failed to comply with the Final Order and has not paid the $1,000.00 civil penalty that the Commissioner ordered to be paid, which is a violation of A.R.S. § 32-2153(B)(9). 5. 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). 6. The evidence of record does not support a finding that Respondent is not a person who is honest, truthful and of good character within the meaning of A.R.S. § 32-2153(B)(7).[2] 7. Grounds exist to revoke the License pursuant to A.R.S. § 32-2153 (A)(3) and (B)(9). ORDER Respondent’s real estate broker’s license shall be revoked on the effective date of the Order entered in this matter.

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, June 28, 2013.

/s/ Lewis D. Kowal Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

----------------------- [1] For purposes of this Decision, the telephone call is referenced herein as the February 25, 2013 telephone call. [2] Although this violation is alleged in the Notice of Hearing and Complaint issued in this matter, the Department did not address this violation at hearing.

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