ALJDEC decisions subject to certification as final

17F-DI-194-REL · Department of Real Estate · 2018-07-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson License of:

VAN SICKLE, BRITTANY JENE, holder of license number SA670290000, Respondent.

No. 17F-DI-194-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 10, 2018 a 1:00 PM.

APPEARANCES: Assistant Attorney General Ryan Krench appeared on behalf of the Department of Real Estate (“the Department”), with Jennifer Teer-Daley as a witness. No appearance(s) on behalf of Brittany Jene Van Sickle (“Respondent”). Dan Jones observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Commissioner of the Department.

FINDINGS OF FACT

Procedure and Background

Per the Notice of Hearing, the Department referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on July 10, 2018, to determine whether the Department had cause to discipline Respondent’s Real Estate Salesperson’s License No SA670290000.

Respondent submitted a Real Estate Salesperson License application on February 14, 2017. Respondent’s application contained her contact information; including her email address, telephone number, and residential/mailing address.

Along with her application Respondent submitted a Disciplinary Actions Disclosure form and typed supplemental statement, whereby she admitted to entering a guilty plea in Maricopa County Superior Court for Amended Theft, a Class 6 Undesignated Felony, on July 21, 2010, which was reclassified as a Misdemeanor on August 03, 2012, when Respondent was discharged from probation.

As a result of her disclosure, the Department entered into a Consent Order with Respondent and issued her Provisional Real Estate Salesperson’s License No SA670290000 on February 28, 2017. The license will expire automatically on February 28, 2019, which is the end of Respondent’s two-year probationary period.

Per the terms of the Consent Order, Respondent was required to submit sworn quarterly reports to the Department, attesting to her compliance and adherence. Respondent was also required to secure a designated broker to serve as her practice monitor for any period of time she worked as a real estate salesperson.

Respondent submitted sworn quarterly reports to the Department on June 01, 2017, September 21, 2017, and November 29, 2017. She was in compliance with the terms of her Consent Order for all three of these quarters.

On April 11, 2018, the Department telephoned Respondent to inform her that she was out of compliance with her Consent Order because she had not submitted her February 2018 sworn quarterly report. The Department did not reach Respondent, but did leave her a voicemail message. The Department did not receive a response from Respondent.

On April 13, 2018, the Department emailed Respondent to inform her that she was out of compliance with her Consent Order because she had not submitted her February 2018 sworn quarterly report. The Department did not receive a response from Respondent.

On April 17, 2018, the Department sent Respondent a letter via certified mail to inform her that she was out of compliance with her Consent Order because she had not submitted her February 2018 sworn quarterly report. The letter went on to inform Respondent that her failure to submit the tardy report in question by April 30, 2018, to the Department could result in discipline including suspension or revocation of her real estate salesperson license pursuant to Ariz. Rev. Stat. § 32-2153(A)(24). The Department did not receive a response from Respondent.

On May 06, 2018, the Department’s certified letter was returned Unclaimed/Unable to Forward by the United States Postal Service.

Hearing Evidence

Ms. Daley testified that it was Respondent’s responsibility to ensure that the Department had her current contact information.

Ms. Daley further testified that she attempted to contact Respondent by telephone, email, and certified letter to encourage Respondent to get back in compliance with her Consent Order by submitting her sworn quarterly reports that were due in February 2018, but that she was unable to reach Respondent, and that Respondent never returned any of her messages.

A prehearing conference in this matter did not take place as the Department had not been able to reach Respondent since November 29, 2017.

CONCLUSIONS OF LAW

Because at all times relevant to this matter Respondent was subject to the provisions of Title 32, Chapter 20, Arizona Revised Statutes, the Department has jurisdiction over Respondent and the subject matter in this case.

Pursuant to Ariz. Rev. Stat. § 41-1092.01(G)(2) the Department bears the burden of proof to establish cause to discipline Respondent’s real estate salesperson’s license by a preponderance of the evidence. Respondent bears the burden to establish affirmative defenses by the same evidentiary standard.

The standard of proof on all issues is by a preponderance of the evidence. 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). See also Ariz. Admin. Code R2-19-119.

Ariz. Rev. Stat. § 32-2153(A)(3) provides, in pertinent part, that the Commissioner of the Department may suspend or revoke a license if it appears that the holder has disregarded or violated any of the provisions of this chapter or any rules adopted by the Commissioner.

Ariz. Rev. Stat. § 32-2153(A)(24) provides, in pertinent part, that the Commissioner of the Department may suspend or revoke a license if it appears that the holder has violated any condition or term of a Commissioner's Order. The Department’s concerns in this area is legitimate.

Ariz. Rev. Stat. § 32-2153(B)(8) provides, in pertinent part, that the Commissioner of the Department may suspend or revoke a license if it appears that the holder has demonstrated incompetence to perform any duty or requirement of a licensee.

Here, Respondent was required to comply with the Consent Order, but she failed to do so. No affirmative defense was raised that would otherwise excuse or justify Respondent’s noncompliance. Respondent’s noncompliance is problematic – ranging somewhere between negligent and an intentional disregard of a direct order by the Commissioner of the Department.

The preponderance of the evidence shows that Respondent violated Ariz. Rev. Stat. §§ 32-2153(A)(3), 32-2153(A)(24), and 32-2153(B)(8).

Based on the evidence presented, the Administrative Law Judge finds that the Department has sustained the requisite burden of proof in this matter. Due to the proven violations of Ariz. Rev. Stat. §§ 32-2153(A)(3), 32-2153(A)(24), and 32-2153(B)(8), the Department has grounds to discipline Respondent’s Real Estate Salesperson’s License No SA670290000, up to and including revocation.

Considering the facts and circumstances in this matter, and specifically acknowledging Respondent’s unwillingness to be regulated by the Department, the Department’s request to revoke her license is appropriate and should be granted.

RECOMMENDED ORDER

Based on the forgoing findings of fact and conclusions of law,

IT IS RECOMMENDED that Brittany Jene Van Sickle’s (formerly Gardner) Real Estate Salesperson’s License No SA670290000 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 shall be five days from the date of the certification.

Done this day, July 23, 2018.

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate