ALJDEC decisions subject to certification as final

16F-DI-211-REL · Department of Real Estate · 2016-09-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: No one appeared for Respondents; Lynette Evans, Esq. appeared for the Department of Real Estate APPEARANCES: ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On June 30, 2016, 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. August 16, 2016, 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 impose a civil penalty, or to suspend or revoke Respondents' licenses. 3. Norman Furrey holds real estate broker’s license No. BR110766000, doing business as Cactus Pine Real Estate, which holds license No. SE110766000. 4. On August 12, 2016, Department’s Commissioner issued “Findings of Fact, Conclusions of Law, and Order” (“Order”) finding that Respondents were in default because they had not filed an answer to the Complaint. 5. In the Order, the Commissioner: (1) found that the allegations in the Notice of Hearing and Complaint were deemed to be admitted; (2) revoked Mr. Furrey’s license; (3) revoked Cactus Pine Real Estate’s license; and (4) directed that the hearing would take place to determine the appropriate civil penalties based on the admitted allegations. 6. The Notice of Hearing and Complaint are incorporated in this Decision by this reference. 7. No representative for any Respondent appeared at the scheduled hearing time. The matter was convened in their absence at about 1:15 p.m. 8. At the hearing, the Department relied on the admitted allegations and presented no other evidence. 9. The Department requested that Mr. Furrey be assessed a civil penalty of $5000 and that Cactus Pine Real Estate be assessed a civil penalty of $3000 for the admitted violations. 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: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.

Black’s Law Dictionary 1373 (10th ed. 2014). 4. Based on the admitted violations, the preponderance of the evidence shows that Mr. Furrey and Cactus Pine Real Estate violated Ariz. Rev. Stat. sections 32-2153(A)(3), (A)(9), (A)(17), (B)(3), (B)(6), (B)(7) and (B)(11), and Ariz. Admin. Code R4-28-1101(A). 5. Mr. Furrey and Cactus Pine Real Estate are subject to a civil penalty of up to $1000 for each violation of statute. Ariz. Rev. Stat. § 32-2160.01. 6. Mr. Furrey’s failure to answer the Complaint and his failure to appear at the hearing are considered factors in aggravation. 7. Because the same factual circumstances support the violations against Mr. Furrey and Cactus Pine Real Estate, rather than assessing penalties against both Respondents, the Administrative Law Judge concludes that a $5000 civil penalty against Mr. Furrey is appropriate. ORDER IT IS ORDERED that Norman Furrey must pay to the Department a civil penalty of $5000 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, September 2, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate -----------------------

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