ALJDEC decisions subject to certification as final

13F-DI-242-REL · Department of Real Estate · 2013-12-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 25, 2013 APPEARANCES: Assistant Attorney General Liane C. Kido represented the Arizona Department of Real Estate. Respondents Dawn Anderson and Maricopa Properties, L.L.C. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ FINDINGS OF FACT 1. On October 21, 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 November 25, 2013, at 1:00 p.m. On the date of the hearing, the Administrative Law Judge convened the hearing at 1:15 p.m., which provided additional time for Respondents Dawn Anderson (“Ms. Anderson”) and Maricopa Properties, L.L.C. (“Maricopa”) (collectively “Respondents”) to appear. After expiration of the additional time, Respondents failed to appear and the hearing proceeded. 2. The Notice of Hearing contained allegations regarding the conduct of Respondents that the Department contended violated Arizona real estate laws. Through the administrative hearing process, the Department sought to revoke Ms. Anderson’s real estate broker’s license and Maricopa’s real estate entity license and to impose a civil penalty of not more than $1,000.00 for each violation of the State’s real estate laws. 3. On November 21, 2013, 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, specifically that Ms. Anderson violated A.R.S. §§ 32-2151(B)(1) and (2), A.R.S. §§ 32-2153(A)(3), (A)(16), (A)(18), (A)(21), (A)(22), (B)(3), (B)(7), and (B)(8), and A.R.S. §§ 32- 2173(A), (A)(1)(a), and (A)(1)(b), A.R.S. § 32-2174(A), and A.R.S. § 32-2175(E), and revoked Ms. Anderson’s real estate broker’s license. 4. On November 21, 2013, the Commissioner issued Findings of Fact, Conclusions of Law, and Order deeming admitted the allegations set forth in the Notice of Hearing, specifically that Maricopa violated A.R.S. §§ 32- 2151(B)(1) and (2), A.R.S. §§ 32-2153(A)(3), (A)(16), (A)(18), (A)(21), (A)(22), (B)(3), (B)(7), and (B)(8), and A.R.S. §§ 32-2173(A), (A)(1)(a), and (A)(1)(b), A.R.S. § 32-2174(A), and A.R.S. § 32-2175(E), and revoked Maricopa’s real estate entity license. 5. At hearing, the Department’s counsel argued that Respondents’ violation of the State’s real estate laws warrants the imposition of a civil penalty against Respondents for the violations of law, in the amount of $12,000.00. The Department’s counsel clarified at hearing that the Department was requesting a $1,000.00 civil penalty for each of Respondents’ violations of A.R.S. §§ 32-2151(B)(1) and (B)(2), A.R.S. §§ 32- 2153(A)(16), (A)(22), (B)(3), (B)(7)[1], (B)(8), A.R.S. §§ 32-2173(A), (A)(1)(a), and (A)(1)(b), A.R.S. § 32- 2174(A) and (C)[2], and A.R.S. § 32-2175(E), for a total civil penalty of $12,000.00. Based upon the representations made by the Department at hearing and a review of the Commissioner’s Order, and notwithstanding that there are thirteen cited violations, the Administrative Law Judge finds that there are at least twelve violations warranting a civil penalty in the amount of $12,000.00. The Department requested that the civil penalty be imposed jointly and severally and be paid within thirty days of the Order issued in this matter. 6. Respondents 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. 7. The Administrative Law Judge finds that the imposition of a $12,000.00 civil penalty is appropriate against Respondents. 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. 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. 5. The Department proved by a preponderance of the evidence, and the Commissioner of the Department found in the November 21, 2013 Findings of Fact, Conclusions of Law, and Order that Respondents violated the above- cited provisions of this State’s real estate laws. 6. By engaging in the conduct as found in the Findings of Fact, Conclusions of Law, and Order issued by the Commissioner and, as determined by the Administrative Law Judge, Respondents 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). 7. Based upon the above, grounds exist to impose a total civil penalty in the amount of $12,000.00 against Respondents, jointly and severally, for the violations found above, pursuant to A.R.S. § 32-2160.01, and a $12,000.00 civil penalty is determined to be reasonable and appropriate under the circumstances. ORDER Within thirty (30) days of the effective date of the Order entered in this matter, Respondents shall pay jointly and severally to the Department a civil penalty in the amount of $12,000.00, 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 2, 2013.

/s/ Sondra J. Vanella Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] For purposes of civil penalty to be imposed, the Administrative Law Judge considers a violation of A.R.S. § 32-2153(B)(7) with respect to Ms. Anderson, but not Maricopa. [2] The Administrative Law Judge finds due to the allegations deemed admitted, that a violation of A.R.S. § 32-2174(C) exists.

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