ALJDEC decisions subject to certification as final

13F-DI-275-REL · Department of Real Estate · 2013-11-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 17, 2013 APPEARANCES: The Arizona Department of Real Estate was represented by Assistant Attorney General Lynette Evans. Christopher Steven Johnson did not appear. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ FINDINGS OF FACT 1. Christopher Steven Johnson (“Respondent”) is the holder of provisional Real Estate Salesperson License No. SA644538000 issued by the Arizona Department of Real Estate (“Department”) on November 14, 2012. 2. On August 20, 2013, the Department issued a Notice of Hearing and Complaint charging Respondent with committing statutory and regulatory violations and scheduling an evidentiary hearing before the Office of Administrative Hearings on October 17, 2013, at 1:00 p.m. The Notice of Hearing and Complaint was sent to Respondent at his address of record with the Department. 3. Respondent failed to appear at the time scheduled for hearing and did not request to appear telephonically. After the expiration of a fifteen-minute grace period, the Administrative Law Judge convened the hearing in Respondent’s absence. 4. On or about October 3, 2012, Respondent submitted an original application for a salesperson’s license to the Department. 5. As part of the license application, Respondent disclosed a 2002 Nebraska judgment against him as a part owner of a food delivery business. The judgment found that Respondent and his company, Consumer’s Choice Foods, engaged in unfair and deceptive practices, acts, and misrepresentations. The judgment was in the amount of $96,308.21 against the company and Respondent, jointly and severally. 6. On or about November 14, 2012, Respondent entered into Consent Order 13F-DI-079 with the Department. The Department issued Respondent provisional Real Estate Salesperson License No. SA644538000. That license is currently inactive and expires on November 30, 2014. Pursuant to the terms of the Consent Order, that license was to be a provisional license for two years and subject to Respondent having a practice monitor. 7. The Consent Order also required Respondent to comply with Title 32, Chapter 20 of the Arizona Revised Statutes, and Title 4, Chapter 28 of the Arizona Administrative Code. 8. On January 9, 2013, the Department’s Compliance Officer, Connie Johnson, sent Respondent an email declining his invitation to join Linked. 9. On January 10, 2013, Respondent sent Ms. Johnson an email informing her that he had moved and requested information concerning changing his address of record with the Department. 10. On January 11, 2013, Ms. Johnson sent an email to Respondent, with an attached an LI-235 form for changing a licensee’s address, and directed Respondent to complete and return the form. 11. In June 2013, Ms. Johnson followed-up with Respondent because he had not completed and returned the change of address form. Respondent advised her that he was moving to Florida. 12. On June 19, 2013, the Department’s counsel, Assistant Attorney General Lynette Evans, sent an email to Respondent with an electronic version of a surrender form for surrendering his license. 13. On July 26, 2013, Ms. Evans sent an email to Respondent inquiring whether Respondent intended to surrender his license. 14. On August 2, 2013, Respondent sent an email to Ms. Evans advising her that he intended to keep his license active. 15. On September 6, 2013, Ms. Evans sent an email to Respondent informing him that this matter was scheduled for hearing on October 17, 2013. Ms. Evans instructed Respondent to complete and return the previously provided change of address form. 16. On September 16, 2013, Respondent sent an email to Ms. Evans requesting that she resend the change of address form because he had lost the original email with the attachment. 17. On September 16, 2013, Ms. Evans sent an email to Respondent that contained the hyperlink to the on-line address change form. 18. Respondent eventually submitted a completed change of address form to the Department. 19. Respondent failed to timely notify the Department of his change of address and by failing to do so violated the terms of Consent Order 13F-DI-079. CONCLUSIONS OF LAW 1. The Department has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.R.S. § 41-1092.07(G)(2), the Department has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119. 3. The evidence of record established that Respondent failed to timely file his current address of record with the Department, in violation of A.A.C. R4-28-301(E) and (F) and A.A.C. R4-28-303(D). Respondent was required to submit his change of address to the Department within days of any change, but only complied after approximately nine months and after numerous requests by the Department for the information. 4. The evidence of record established that Respondent failed to timely respond to the above-described requests for Respondent’s change of address in violation of A.A.C. R4-28-301(G). Respondent was required to respond to the Department’s requests for information within 14 days of the requests, but Respondent failed to timely comply. 5. The evidence of record established that Respondent violated the terms of Consent Order 13F-DI-079, in violation of A.R.S. § 32-2153(A)(24). 6. Respondent’s statutory and regulatory violations constitute violations of A.R.S. § 32-2153(A)(3).[1] 7. The evidence of record established good grounds for the revocation of Respondent’s provisional Real Estate Salesperson License No. SA644538000, for violations of A.R.S. § 32-2153(A)(3) and (24), A.A.C. R4-28-301(E), (F), and (G), and A.A.C. R4-28-303(D). Respondent’s failure to timely submit a change of address form, even after Department staff made repeated requests for the information, established that Respondent cannot be regulated. 8. The evidence of record established good grounds to assess a $1,000.00 civil penalty against Respondent in this matter, pursuant to A.R.S. § 32-2160.01. RECOMMENDED ORDER It is recommended that Respondent’s Real Estate Salesperson License No. SA644538000 be revoked on the effective date of the Order entered in this matter. In addition to the above-provided license revocation, it is further recommended that Respondent be assessed a civil penalty in the amount of $1,000.00, which is payable within 60 days, or as modified by the Commissioner or her designee, from the effective date of the Order entered in this matter, such payment to 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 shall be five days from the date of the certification.

Done this day, November 5, 2013.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] A.R.S. § 32-2153(A)(3) provides that the Department’s commissioner may discipline a licensee who has “[d]isregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner.”

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