ALJDEC decisions subject to certification as final

15F-DI-206-REL · Department of Real Estate · 2016-01-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 13, 2016 APPEARANCES: Leticia Montano a.ka. Leticia Rivas (“Respondent”) did not appear. The Arizona Department of Real Estate (“Department”) was represented by Assistant Attorney General Lynette Evans. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ The question presented by this case is whether grounds exist to revoke the broker’s license issued Respondent or to asses a civil penalty to Respondent. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Order: FINDINGS OF FACT 1. On August 4, 2011, the Arizona Department of Real Estate (“Department”) issued to Respondent an original broker's license to Respondent, number BR534917000. That license expired on August 31, 2015 and is also currently suspended. Respondent was the Designated Broker for Sol Realty LLC, holder of entity license number LC641027000. 2. On March 19, 2013, Respondent was indicted in the United States District Court, District of Arizona for one count of violating 8 U.S.C. §§ 1324(a)(1)(A)(iii) and (a)(1)(A)(v)(I), Conspiracy to Harbor Illegal Aliens, a felony. The case number is CR-13-00388-PHX- ROS (MHB). 3. On July 28, 2014, Respondent entered a plea of guilty “straight to the indictment.” 4. On July 30, 2015, the Department issued an Order of Summary Suspension against Respondent. Respondent did not appeal this Order. 5. On September 30, 2015, the U.S. District Court issued a Judgment and Commitment as to Respondent and Respondent was committed to the custody of the Bureau of Prisons for a term of 63 months. Upon release from imprisonment, Respondent shall be placed on supervised release for a term of three (3) years. 6. Respondent has been and may remain in custody at the Central Arizona Detention Center, 1155 North Pinal Parkway, Florence, AZ 85132. 7. On November 20, 2015, the Department issued its Notice of Hearing and Complaint seeking revocation of Respondent’s broker’s license and imposition of a civil penalty based on the above facts. 8. On December 5, 2015, Respondent authored her Answer to the Complaint which stated: Respondent does not contest the facts and violations set forth in the complaint dated November 20, 2015. Furthermore, Respondent gives notice that she will not be able to attend the hearing set for January 13, 2016. Respondent is indigent and is unable to pay any civil penalty assessed in this matter.

9. At the hearing, the Department presented its case through the testimony of Tom Adams, an investigator, and submitted exhibits 1, 2, 3 and 5. CONCLUSIONS OF LAW 1. The Commissioner has jurisdiction over Respondent and the subject matter in this case. The expired status of Respondent’s license does not deprive the Commission of jurisdiction to take action against Respondent’s license. A.R.S. § 32-2153(E)(2). 2. Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), 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(A). 3. The evidence of record established that Respondent was convicted in a court of competent jurisdiction of Conspiracy to Harbor Illegal Aliens, a Class 3 Felony, within the meaning of A.R.S. § 32- 2153(B)(2).[1] 4. Upon review of all the evidence, the Tribunal finds it appropriate to revoke Respondent’s broker’s license under the present circumstances. In her Answer to the Complaint, Respondent admits she committed the violation charged in the Notice of Hearing and Complaint. In doing so, Respondent broke the law and endangered the public. For this reason, grounds exist to revoke Respondent’s broker’s license pursuant to A.R.S. §§ 32-2153(B)(2). 5. Imposition of a civil penalty pursuant to A.R.S. § 32-2160.01 appears unwarranted in view of Respondent’s reported indigent status as well as her incarceration.[2] RECOMMENDED ORDER Based on the foregoing, it is recommended that Respondent’s real estate broker's license, BR534917000 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 shall be five days from the date of the certification.

Done this day, January 29, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] A.R.S. § 32-2153(B) provides:

B. The commissioner may suspend or revoke a license, deny the issuance of a license, issue a letter of concern to a licensee, issue a provisional license or deny the renewal or the right of renewal of a license issued under this chapter when it appears that the holder or applicant has: . . . . 2. Been convicted in a court of competent jurisdiction in this or any other state of a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense.

[2] A.R.S. § 32-2160.01(A) provides:

Any licensee who is subject to the jurisdiction of the department and who has violated any provision of this chapter or any rule or order adopted or issued by the commissioner, who has deviated substantially from the provisions of a public report or who has engaged in any unlawful practices defined in section 44-1522 with respect to the sale or lease of either subdivided lands or unsubdivided lands may be assessed a civil penalty by the commissioner, after a hearing, in an amount not to exceed one thousand dollars for each infraction.

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