ALJDEC decisions subject to certification as final

17F-DI-227-REL · Department of Real Estate · 2019-08-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 25, 2019 APPEARANCES: No one appeared for Respondent; Deian Ousounov, Esq. for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT 1. On June 17, 2019, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing and Complaint setting the above-captioned matter for hearing at 8:30 a.m. on July 25, 2019 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 revoke or suspend Respondent Melanie Anne Volland’s License No. SA671170000. 3. No representative for Ms. Volland appeared at the scheduled hearing time and the matter was convened in her absence at about 8:46 a.m. 4. The Department presented the testimony of its enforcement and compliance manager Daniel Jones. 5. On April 7, 2017, the Department issued an Intent to Deny Ms. Volland’s pending application for a salesperson’s license. 6. On April 10, 2017, the Department and Ms. Volland entered into a Consent Order through which Ms. Volland acknowledged that the Department had grounds on which to deny her application, the Department agreed to issue to her a provisional license, and she agreed to submit to the Department quarterly affidavits (on Form COM-101) showing that she was in compliance will all terms of the Consent Order and her provisional license. 7. Ms. Volland was issued a provisional license on April 11, 2017, and that license expired on April 30, 2019. 8. Through a letter dated April 12, 2017, the Department provided Ms. Volland with information related to her obligation to submit the quarterly affidavits. 9. Through a letter dated Aril 4, 2018, the Department informed Ms. Volland that she had not submitted the affidavit that was due on February 14, 2018. The letter informed Ms. Volland that she was not in compliance with the Consent Order and informed her that she was required to submit the affidavit by April 16, 2018.The letter also inform Ms. Volland that the Commissioner had authority to suspend or revoke a license if the licensee failed to comply with terms of a consent order. 10. On July 20, 2018, the Department sent to Ms. Volland an email showing that she had not submitted the affidavit that was required to be submitted on July 15, 2018 and that she was out of compliance with her Consent Order. Ms. Volland responded stating that she could not submit the required affidavit because her license was not active and she had no broker to sign the affidavit. The Department issued a reply, showing that Ms. Volland was nevertheless required to submit the affidavit without a broker’s signature and warning her that a failure to do so could result in her license being revoked. 11. Through a letter dated July 25, 2018, the Department again informed Ms. Volland that she had not submitted the affidavit that was due on July 15, 2018. The letter informed Ms. Volland that she was not in compliance with the Consent Order and informed her that she was required to submit the affidavit by August 3, 2018.The letter also inform Ms. Volland that the Commissioner had authority to suspend or revoke a license if the licensee failed to comply with terms of a consent order. 12. Through a letter dated January 17, 2019, the Department informed Ms. Volland that she had not submitted the affidavit that was due on November 19, 2018. The letter informed Ms. Volland that she was not in compliance with the Consent Order and informed her that she was required to submit the affidavit by January 24, 2019.The letter also inform Ms. Volland that the Commissioner had authority to suspend or revoke a license if the licensee failed to comply with terms of a consent order. 13. In addition to the three letters and email the Department sent to Ms. Volland, Department representatives telephoned Ms. Volland to discuss with her the need to file the required affidavits. 14. As of the hearing date, Ms. Volland had not submitted to the Department the affidavits that were due on February 14, July 15 and November 19, 2018. 15. Ms. Volland’s failure to comply with the Consent Order shows that she is not amenable to regulation by the Department. 16. The Department alleges that Ms. Volland violated Ariz. Rev. Stat. sections 32-2153(A)(24). 17. The Department requested that Ms. Volland’s license be revoked. CONCLUSIONS OF LAW 1. The Department bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(2). 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. The preponderance of the evidence shows that Ms. Volland has failed to comply with the terms of the Consent Order and is in violation of Ariz. Rev. Stat. section 32-2153(A)(24). 5. Based on the proven violation, the Department has authority to revoke Ms. Volland’s license. Ariz. Rev. Stat. § 32-2153(A) and (E). 6. Considering the facts and circumstances of this matter, Ms. Volland’s license should be revoked. ORDER IT IS ORDERED that Melanie Anne Volland’s License No. SA671170000 is 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 is five days after the date of that certification.

Done this day, August 6, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826