ALJDEC decisions subject to certification as final

17F-DI-237-REL · Department of Real Estate · 2017-07-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson License of:

TIFFANNII M. WALDBILLIG, holder of license number SA575739000,

Respondent.

No. 17F-DI-237-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 13, 2017

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

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

On November 10, 2010, the Arizona Department of Real Estate (“Department”) issued original real estate salesperson’s license number SA575739000 (“License”) to Respondent. The License expires on November 30, 2018. According to the Department’s administrative records, Respondent’s License is currently summarily suspended.

On April 26, 2017, the 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 June 13, 2017 at 1:00 p.m. On the date of the hearing, after expiration of approximately fifteen minutes during which Respondent could appear but did not appear, the Administrative Law Judge convened the hearing and the hearing proceeded in Respondent’s absence.

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 uphold the summary suspension and to revoke Respondent’s License.

The Department presented the testimony of its witness, Robin King. Ms. King reviewed the allegations and obtained information by the Department in this matter and, at the hearing, testified reading a criminal conviction of Respondent.

The Department received, and obtained, information documenting that Respondent pled guilty to and was convicted of Theft, a Class 4 felony, in Case No. CR2015-002371. On April 6, 2017, Respondent was sentenced to 60-days incarceration, placed on probation for 2 years, and ordered to pay restitution to a former employer, Sterling Fine Properties, and to CNA Insurance Company.

Respondent failed to notify the Department of the conviction.

On April 17, 2017, the Department issued its Order of Summary Suspension and Notice of Opportunity for Hearing (“Order”). The suspension was effective immediately, i.e., on April 17, 2017. The Order specifies that a failure to timely appeal the Order “will constitute a waiver of Respondent’s right to a hearing on this matter and to any other appeal right to which Respondent is otherwise entitled.” The Order was certified mailed to Respondent at the known residential address of Respondent and was also sent electronically.

The Department noted that Respondent did not appeal the summary suspension and therefore, the Department indicated that Respondent’s License is suspended either until it expires or is revoked.

By Notice of Hearing dated April 26, 2017, the Department scheduled an administrative hearing on the issue of whether Respondent’s License should be revoked. The Notice of Hearing was certified mailed to Respondent at the known residential address of Respondent and was sent electronically.

At hearing, the Department argued that the Respondent’s conviction of Class 4 Felony Theft is grounds, pursuant to A.R.S. § 32-2153(A)(16) and A.R.S. § 32-2153(B)(2) and (B)(10), to support the revocation of Respondent’s License. Additionally, the Department argued that, through her conviction and its underlying facts, Respondent is guilty of conduct that constitutes fraud or dishonest dealings in violation of A.R.S. § 32-2153(B)(5) and, thereby, has not shown that she is person of honestly, truthfulness and good character, in violation of A.R.S. § 32-2153(B)(17). Finally, the Department argued that Respondent, through her actions and the conviction, disregarded or violated statutory and/or regulatory provisions adopted by the Commissioner in violation of A.R.S. § 32-2153(A)(3).

By failing to appear, Respondent did not present any evidence or legal argument to either refute or rebut the evidence or legal arguments presented by the Department in support of the revocation of Respondent’s License.

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 License pursuant to A.R.S. § 32-2153(A) and (B).

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)(16), (B)(2), (B)(5), (B)(10) and (B)(17).

Based on the hearing record, the Administrative Law Judge concludes that grounds exist to revoke Respondent’s License pursuant to the Department’s authority in A.R.S. § 32-2153.

ORDER

IT IS RECOMMENDED that Respondent Tiffannii M. Waldbillig’s real estate salesperson’s license number SA575739000 be revoked on the effective date of the Department’s 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 will be five days from the date of that certification.

Done this day, July 3, 2017.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate