ALJDEC decisions subject to certification as final

16F-DI-245-REL · Department of Real Estate · 2019-08-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 24, 2019 APPEARANCES: Respondent Foy Terry did not appear. The Arizona Department of Real Estate was represented by Assistant Attorney General Deian Ousounov. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. The Arizona Department of Real Estate (Department) is the duly constituted authority for licensing and regulating the practice of real estate in the State of Arizona. 2. On or about April 19, 2016, Foy Terry (Respondent) entered into a Consent Order with the Department as a condition for being issued a provisional real estate salesperson’s license. The Department issued a two-year provisional real estate Salesperson’s license number SA533533000 to Respondent. That two-year provisional license was inactive and would expire on April 30, 2020. 3. The Consent Order required Respondent to submit sworn quarterly declarations, signed by Respondent’s employing/designated broker, with each signature notarized. Respondent agreed to comply with all the terms and deadlines in the Consent Order. 4. On or about April 19, 2016, the Department sent Respondent a letter explaining the terms of the Consent Order and informed her that the first quarterly submission would be due on July 19, 2016. 5. Respondent submitted timely declarations for July 2016, October 2016, and January 2017; however, her submission due on April 2017 was late. 6. On or about May 3, 2017, Respondent’s designated Broker severed Respondent from the brokerage due to lack of sales, and Respondent’s license became inactive at that time. 7. On July 28, 2017, the Department sent Respondent a certified letter advising that the declaration due on April 19, 2017, was submitted on May 12, 2017, and that the declaration due on July 19, 2017, had not yet been received. The Department advised Respondent that the July 2017 declaration was to be submitted no later than August 11, 2017. The letter further stated, “You are required to submit Declarations each quarter even if your license is inactive.” 8. On or about September 11, 2017, Daniel Jones, Enforcement and Compliance Division Manager for the Department, sent Respondent an email advising her that she was not in compliance with the Consent Order and requested that she contact him no later than September 13, 2017, to discuss the matter. 9. On or about September 12, 2017, Respondent sent a letter to the Department indicating she had difficulty sending the required declarations via computer. Respondent included a copy of the July 2017 declaration. 10. On or about September 15, 2017, Mr. Jones sent Respondent a letter via certified mail acknowledging receipt of her September 12, 2017 letter and July 2017 declaration. Mr. Jones reminded Respondent that her next declaration was due on October 19, 2017, and stated she would be permitted to submit the declarations by mail but the declaration had to be received by the due date. Mr. Jones stated that “[t]he compliance division is allowing you this one-time opportunity to get back on track with your timely submissions.” 11. Respondent failed to submit the quarterly declaration due on July 19, 2018. 12. On July 30, 2018, the Department sent Respondent a Notice of Non- Compliance with Commissioner’s Order indicating the July 19, 2018 quarterly declaration had not been received. Respondent was given until August 10, 2018, to submit the required declaration. 13. On October 30, 2018, the Department sent Respondent another Notice of Non-Compliance with Commissioner’s Order indicating the July 19, 2018 quarterly declaration that had previously been extended to August 10, 2018, had not been received. Respondent was given until November 5, 2018, to submit the required declaration. 14. As of the date of the hearing, Respondent had not submitted the required quarterly declarations. 15. Respondent did not present any evidence or legal argument to refute or rebut the evidence or legal arguments presented by the Department in this matter. CONCLUSIONS OF LAW 1. Pursuant to A.R.S. Title 32, Chapter 20, the Department has the authority and duty to regulate all persons engaged in the business of, or acting in the capacity of, a real estate broker or salesperson, and to enforce all statutes, rules, and regulations relating to real estate. 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. 2. 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). 3. Pursuant to A.R.S. § 32-2153(A)(24), the Commissioner may suspend or revoke a license if the licensee violated any condition or term of a commissioner’s order. 4. The evidence of record established that Respondent failed to submit the information required under the Consent Order. Therefore, the preponderance of the evidence establishes that Respondent violated A.R.S. § 32-2153(A)(24).[1] ORDER Based on the foregoing, it is recommended that on the effective date of the Order entered in this matter, Respondent’s real estate salesperson’s license shall be revoked. 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, August 7, 2019.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

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

A. 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 if it appears that the holder or applicant, within five years immediately preceding, in the performance of or attempt to perform any acts authorized by the license or by this chapter, has: . . . . 24. Violated any condition or term of a commissioner's order.

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