ALJDEC decisions subject to certification as final:

16F-DI-323-REL · Department of Real Estate · 2016-10-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Activities of:

LAURA MCNULTY, holder of License No. SA580715000,

Respondent.

No. 16F-DI-323-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 23, 2016

APPEARANCES: Laura McNulty (hereinafter “Respondent”) did not appear. The Arizona Department of Real Estate (hereinafter “Department”) was represented by Assistant Attorney General Ryan Krench.

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

On December 11, 2006, the Department issued original salesperson’s license number SA580715000 to Respondent. The license expires on December 31, 2016. According to the Department’s administrative records, Respondent’s salesperson’s license is currently inactive.

On August 19, 2016, the Arizona Department of Real Estate (Department) issued a Notice of Hearing and Complaint regarding this matter setting an administrative hearing to be held with the Office of Administrative Hearings to convene on September 23, 2016 at 1:00 p.m. On the date of the hearing, the Administrative Law Judge convened the hearing at approximately 1:20 p.m., which provided additional time for Respondent to appear. After expiration of the additional time, Respondent failed to appear and the hearing proceeded.

The Notice of Hearing and Complaint contained allegations regarding the conduct of Respondent that the Department contended violated the Arizona real estate laws. Through the administrative hearing process, the Department sought to revoke Respondent’s real estate salesperson’s license and to impose a civil penalty of not more than $1000.00 for each violation of the State’s real estate laws.

The Department presented the testimony of Wayne L. Jackson (hereinafter “Investigator”). Investigator reviewed the allegations and obtained information in this matter and, at the hearing, testified as to the following facts that were set forth in the Case Investigation Report.

In December 2015, the Department received information from Trudy Moore, the designated broker at Home Smart, who reported that she had received an e-mail from Tom Wright regarding property owned by his cousin, Diane Cleveland, who was experiencing problems with the property management of her property that was being managed by Respondent. Ms. Moore indicated that she had confirmed with Respondent that Respondent had been conducting property management outside the brokerage without the brokerage’s knowledge, and that Respondent had placed an ad on Craig’s List, secured a tenant for Ms. Cleveland’s property and had instructed the tenant to make deposit and rental payments to Respondent.

The December 3, 2015 e-mail from Mr. Wright to Ms. Moore noted that Respondent had stayed in touch with Ms. Cleveland about various matters, but that no deposits had ever been made to the account to which Ms. Cleveland was told by Respondent that the monies would be deposited and, further, that their repeated requests for information and documentation of alleged repairs to the property went unanswered by Respondent. Mr. Wright indicated that the home had been rented for $1,100.00 a month and that no rent had been deposited into Ms. Cleveland’s account.

In April 2016, the Department sent a notice of complaint to Respondent at the address in the Department’s records; the mail was returned as not deliverable and unable to be forwarded. In that letter, the Department requested Respondent to provide a written signed response to the complaint allegations as well as provide relevant documents.

The Department subsequently attempted to reach Respondent with the same notice of complaint through an e-mail address; Respondent failed to respond with information by the requested date.

The Department argued that the Respondent’s violations of A.R.S. § 32-2153(A)(3), A.R.S. § 32-2153(A)(9), A.R.S. § 32-2153(B)(7), A.R.S. § 32-2153(B)(11), A.A.C. R4-28-303(D)(3), and A.A.C. R4-28-1101(A) collectively, warrant the revocation of Respondent’s real estate salesperson’s license.

The Department further argued that, although there were at a minimum 5 violations and they could proceed for a civil penalty under A.R.S. § 32-2160.01 for that number of violations, the Department would only ask for the imposition of a civil penalty for two violations of law, for a total civil penalty of $2,000.00.

By failing to appear, Respondent did not present any evidence or legal argument to refute or rebut the evidence or legal arguments presented by the Department in support of the revocation of Respondent’s salesperson’s license and the imposition of civil penalties in this matter.

CONCLUSIONS OF LAW

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.

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).

The practice of real estate is governed by adherence to statutes and rules and requires the utmost care by a licensed real estate agent. Respondent’s actions demonstrate her unwillingness or inability to adhere to statutes and rules.

The evidence of record established that grounds exist to discipline Respondent’s salesperson’s license pursuant to A.R.S. § 32-2153.

The Commissioner has the authority to impose a civil penalty of up to $1000.00 for each violation of the Arizona real estate laws by a licensee. See A.R.S. § 32-2160.01.

The Department has demonstrated by a preponderance of the evidence that Respondent violated each of the charged provisions of A.R.S. § 32-2153(A)(3), (A)(9), (B)(7), (B)(11), A.A.C. R4-28-303(D)(3), and A.A.C. R4-28-1101(A).

Based on the hearing record, the Administrative Law Judge concludes that grounds exist to revoke Respondent’s salesperson’s license and to impose a civil penalty in the amount of $1,000.00 against Respondent for the violations found above, pursuant to A.R.S. § 32-2160.01, and that the Department’s request for a total civil penalty of $2,000.00 is reasonable and appropriate under the circumstances.

ORDER

IT IS RECOMMENDED that Respondent Laura McNulty’s real estate salesperson’s license number SA580715000 be revoked on the effective date of the Department’s Order entered in this matter, and

IT IS FURTHER RECOMMENDED that within 60 days of the effective date of the Department’s Order entered in this matter, Respondent shall pay to the Department a civil penalty in the amount of $2,000.00, and such payment shall 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 will be five days from the date of that certification.

Done this day, October 13, 2016.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate