ALJDEC decisions subject to certification as final

14F-DI-210-REL · Department of Real Estate · 2014-12-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 25, 2014 APPEARANCES: No one appeared for Respondents; Lynette Evans, Esq. appeared for the Department of Real Estate ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On October 14, 2014, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing and Complaint setting the above-captioned matter for hearing at 1:00 p.m. November 25, 2014, at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing provided that hearing was being held to determine whether grounds exist to revoke Respondent Marcia Lynn Fox-Embrey’s real estate broker’s license No. BR508257000 and Property Source, Inc. d.b.a. Property Source Realty’s license No. C0580821000, and whether grounds exist to impose a civil penalty against Ms. Fox-Embrey. 3. In an Order dated November 24, 2014, the Department’s Commissioner found that Respondent was in default because Respondent had not filed an answer to the Complaint. 4. In her Order, the Commissioner: (1) found that the allegations in the Notice of Hearing and Complaint were deemed to be admitted; (2) revoked Ms. Fox-Embrey’s license; (3) revoked Property Source, Inc. d.b.a. Property Source Realty’s license; and (4) directed that the hearing would take place to address the appropriate civil penalty based on the admitted allegations. 5. The Notice of Hearing and Complaint are incorporated in this Decision by this reference. 6. Ms. Fox-Embrey did not appear at the scheduled hearing time. The matter was convened in her absence at about 1:20 p.m. 7. At the hearing, the Department relied on the admitted allegations and presented no other evidence. 8. The Department requested that Ms. Fox-Embrey be assessed a total civil penalty of $7000 for the admitted allegations of Ariz. Rev. Stat. sections 32-2153(A)(1), (A)(16), (A)(18), (A)(22), (A)(24), (B)(1), (B)(8), and (B)(11).[1] CONCLUSIONS OF LAW 1. The Department bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(3). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 3. A preponderance of the evidence 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. Based on the admitted violations, the preponderance of the evidence shows that Ms. Fox-Embrey violated Ariz. Rev. Stat. sections 32-2153(A)(1), (A)(16), (A)(18), (A)(22), (A)(24), (B)(1), (B)(8), and (B)(11). 5. Ms. Fox-Embrey is subject to a civil penalty of up to $1000 for each violation of statute. Ariz. Rev. Stat. § 32-2160.01. 6. Ms. Fox-Embrey’s failure to answer the Complaint and her failure to appear at the hearing are considered factors in aggravation. 7. The Administrative Law Judge concludes that a $7000 civil penalty is appropriate under these facts and circumstances. ORDER IT IS ORDERED that Marcia Lynn Fox-Embrey must pay to the Department a civil penalty of $7000 within fifteen days of 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 is five days after the date of that certification. Done this day, December 10, 2014.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] The Department requested a single $1000 penalty for the violations of Ariz. Rev. Stat. sections 32-2153(A)(22) and (B)(8).

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