ALJDEC decisions subject to certification as final

18A-002-NOT · Secretary of State · 2019-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 08, 2019 at 1:00 PM. APPEARANCES: No appearance(s) on behalf of Charles E. Teller, Jr. (“Petitioner”). Assistant Attorney General Kyle Cummings, Esq. appeared on behalf of the Arizona Secretary of State (“Respondent”) with Patricia Viverto as a witness. ADMINISTRATIVE LAW JUDGE: Jenna Clark. _____________________________________________________________________ After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Arizona Secretary of State (“SOS”). FINDINGS OF FACT Background and Procedure 1. On September 17, 2018, SOS referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on Petitioner’s appeal of SOS’s determination to revoke his Notary Commission. 2. On September 27, 2018, SOS issued a Notice of Hearing, setting a hearing on November 20, 2018, at 8:30 a.m. at OAH.[1] The Notice of Hearing advised that “[i]f the Petitioner fails to appear, the Administrative Law Judge may proceed in the Petitioner’s absence.” 3. SOS mailed a copy of the Notice of Hearing to Petitioner at his address of record. The Notice of Hearing was not returned as undeliverable by the United States Postal Services. 4. Although the start of the hearing was delayed fifteen minutes, Petitioner did not request to appear telephonically, did not appear personally or through an attorney, and did not contact OAH to request a continuance or that the start of the hearing be further delayed. Consequently, Petitioner did not present any evidence to prosecute his appeal of SOS’s intent to revoke his Notary Commission. 5. SOS presented the testimony of Patricia Viverto, Director of Business Services, and submitted nineteen exhibits into the record. The Notice of Hearing was also admitted into the record. Hearing Evidence 6. Ms. Viverto testified that her office commissions notaries for the State of Arizona. Ms. Viverto clarified that a notary public is an official of integrity appointed to serve the public as an impartial witness and executioner for performing certain legal formalities, to prevent fraudulent acts related to the signing of important documents. 7. Per Ms. Viverto, one of her job duties is to review complaints received by her office. Specifically, she coordinates with the Attorney General’s office to investigate said complaint(s), and then reports the findings back to SOS for further action, if any. 8. Regarding the case at bar, Ms. Viverto testified that on or about September 21, 2017, her office received a complaint that a document Petitioner notarized on August 27, 2016, was forged.[2] Specifically, it was alleged Petitioner notarized a document outside the presence of the alleged signee.[3] 9. On October 12, 2017, SOS issued a letter to Petitioner to advise him of the complaint.[4] Petitioner was advised that he had until October 27, 2017, to submit a reply to the allegation(s) and also provide copies of his journal regarding the notarization at issue.[5] 10. Petitioner submitted his response to SOS on October 30, 2017, at which time he informed SOS that his mailing address had changed but that he had not updated it with SOS.[6] In his response, Petitioner stated that a client, Franklin Linnartz, asked Petitioner to notarize a quit claim deed for him and his wife, Claire Card, at 5219 W Cinnabar Ave., Glendale, AZ 85302.[7] Per Petitioner, when he arrived Mr. Linnartz informed him that Ms. Card was ill, and offered to take the documentation back to her to be signed, which Petitioner agreed to as he did not want to be exposed to her illness. Petitioner’s documentation indicates he charged Mr. Linnartz $20.00 for his services.[8] 11. On October 30, 2017, SOS replied to Petitioner’s correspondence and requested additional information to be returned no later than November 07, 2017.[9] 12. Petitioner timely complied.[10] 13. On November 09, 2017, SOS issued another letter to Petitioner which requested additional information.[11] Petitioner was asked to comply by November 16, 2017.[12] 14. Again, Petitioner timely complied.[13] 15. On July 20, 2018, SOS issued an Intent to Revoke letter to Petitioner.[14] In the letter SOS held that while Petitioner responded to all requests for documentation and information, Petitioner also failed to update his contact information with SOS as required by statute, that he had failed to take satisfactory evidence of identity regarding Ms. Card’s complaint, and that Petitioner charged an excessive fee to Mr. Linnartz for the underlying service(s) performed in Ms. Card’s complaint.[15] Petitioner was also advised that he had a right to request an evidentiary hearing within thirty days from the date of the Intent to Revoke letter.[16] 16. On July 23, 2018, Petitioner submitted a request for an informal settlement conference and evidentiary hearing to SOS.[17] 17. On August 02, 2018, SOS sent Petitioner a notification that his informal settlement conference was scheduled for Tuesday, August 07, 2018, at 4:00 p.m.[18] 18. On August 08, 2018, SOS sent Petitioner a letter affirming its decision to revoke his Notary Commission as of July 25, 2018.[19] SOS noted that due to Petitioner’s settlement conference participation on August 07, 2018, SOS decided to remove its third finding but still uphold its prior determination. Petitioner’s revocation became effective by date of the notification, August 08, 2018. 19. On September 04 2018, Petitioner submitted a new request for an evidentiary hearing.[20] CONCLUSIONS OF LAW 1. The Notice of Hearing that SOS mailed to Respondent at his address of record was reasonable, as it was not returned as undeliverable by the United States Post Office. Thus, Respondent is deemed to have received notice of the hearing.[21] 2. Pursuant to Ariz. Rev. Stat. § 41-1092.07(G)(2), Respondent has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence.[22] Petitioner bears the burden to establish factors in mitigation of the allegation(s) and raise any affirmative defenses by the same evidentiary standard.[23] 3. However, because Petitioner failed to appear and present any evidence, there is insufficient evidence to overcome or rebut the credible evidence in the record as presented by Respondent. Thus, the facts in this case are not in dispute. 4. The evidence of record establishes that Petitioner violated the provisions of Ariz. Rev. Stat. § 41-330(A)(10)[24] because he notarized a deed when the signer was not present. 5. The evidence of record also establishes that Petitioner violated the provisions of Ariz. Rev. Stat. §§ 41-313(E)(1),[25] 41-317(B),[26] and 41-319[27] because he failed to keep all records and journals of his notary acts for at least five years from the date of the act that was performed. 6. Pursuant to Ariz. Admin. Code R2-12-1102,[28] the evidence of record further establishes that Petitioner violated the provisions of Ariz. Rev. Stat. §§ 41-330(A)(6)[29] and 41-316(C)[30] because he charged Mr. Linnartz $20.00 for the transaction which greatly exceeded the maximum he could legally charge for his service(s). 7. Lastly, the evidence of record establishes that Petitioner violated the provisions of Ariz. Rev. Stat. § 41-330(A)(4)[31] because he failed to fully and faithfully discharge his duties as a notary public in this matter. 8. Therefore, based on a review of the relevant and credible evidence of record in this matter, this Tribunal holds that Respondent’s revocation of Petitioner’s Notary Commission was proper. RECOMMENDED ORDER It is recommended that Petitioner’s Notary Commission be revoked on the effective date of the Final Order entered in Docket No. 18A-002-NOT. 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 (5) days from the date of the certification. Done this day, March 06, 2019.

/s/ Jenna Clark Administrative Law Judge

Transmitted electronically to:

Katie Hobbs, Arizona Secretary of State ----------------------- [1] On October 31, 2018, the matter was continued for December 11, 2018, at 1:00 p.m., and then reset again on December 11, 2018, for hearing on February 08, 2019, at 8:30 a.m. whereby the matter was heard. [2] See Respondent Exhibits 1-2. [3] See Respondent Exhibit 1. [4] See Respondent Exhibit 3. [5] Id. [6] See Respondent Exhibits 4, 9-10. [7] See Respondent Exhibit 10. [8] Id. [9] See Respondent Exhibit 4. [10] See Respondent Exhibit 6. [11] See Respondent Exhibit 7. [12] Id. [13] See Respondent Exhibit 11. [14] See Respondent Exhibits 14-15. On July 25, 2018, SOS issued a correction letter to Petitioner which clarified that the intended Notary Commission revocation would take place ten business days from July 25, 2018 (e.g. August 08, 2018), not July 20, 2017, as previously stated. [15] See Respondent Exhibit 14. [16] Id. [17] See Respondent Exhibit 16. [18] See Respondent Exhibit 17. [19] See Respondent Exhibit 18. [20] See Respondent Exhibit 19. [21] See Ariz. Rev. Stat. §§ 41-1092.04 and 41-1092.05(D). [22] See Ariz. Rev. Code R2-19-119(A). [23] See Ariz. Admin. Code R2-19-119(B)(2). [24] Ariz. Rev. Stat. § 41-330(A)(10) provides as follows: “The secretary of state may refuse to appoint any person as a notary public or may revoke or suspend the commission of any notary public for any of the following reasons: . . . 10. Execution of any notarial certificate by the notary public containing a statement known by the notary public to be false.” [25] Ariz. Rev. Stat. § 41-313(E)(1) provides as follows: “E. Notaries public shall: 1. Keep, maintain and protect as a public record a journal of all official acts performed by the notary as described in section 41-319.” [26] Ariz. Rev. Stat. § 41-317(B) provides as follows: B. While a notary public is commissioned, a notary public shall keep all records and journals of the notary's acts for at least five years after the date the notarial act was performed. On receipt of the records and journals from a notary public who no longer is commissioned, the secretary of state shall keep all records and journals of notaries public deposited in the secretary of state's office for five years and shall give certified copies thereof when required, and for the copy certifications the secretary of state shall receive the same fees as are by law allowed to notaries public. The copy certifications shall be as valid and effectual as if given by a notary public.

[27] Ariz. Rev. Stat. § 41-319 provides as follows: A. The notary shall keep a paper journal and, except as prescribed by subsection E, shall keep only one journal at a time. The notary shall record all notarial acts in chronological order. The notary shall furnish, when requested, a certified copy of any public record in the notary's journal. Records of notarial acts that violate the attorney-client privilege or that are confidential pursuant to federal or state law are not a public record. Each journal entry shall include at least: 1. The date of the notarial act. 2. A description of the document or type of notarial act. 3. The printed full name, signature and address of each person for whom a notarial act is performed. 4. The type of satisfactory evidence of identity presented to the notary by each person for whom a notarial act is performed, if other than the notary's personal knowledge of the individual is used as satisfactory evidence of identity. 5. A description of the identification document, its serial or identification number and its date of issuance or expiration. 6. The fee, if any, charged for the notarial act. B. If a notary has personal knowledge of the identity of a signer, the requirements of subsection A, paragraphs 1 through 5 may be satisfied by the notary retaining a paper or electronic copy of the notarized documents for each notarial act. C. If a notary does more than one notarization for an individual within a six month period, the notary shall have the individual provide satisfactory evidence of identity the first time the notary performs the notarization for the individual but may not require satisfactory evidence of identity or the individual to sign the journal for subsequent notarizations performed for the individual during the six month period. D. If a notary performs more than one notarization of the same type for a signer either on like documents or within the same document and at the same time, the notary may group the documents together and make one journal entry for the transaction. E. If one or more entries in a notary public's journal are not public records, the notary public may keep one journal that contains entries that are not public records and one journal that contains entries that are public records. A notary public's journal that contains entries that are not public records is the property of the employer of that notary public and shall be retained by that employer if the notary public leaves that employment. A notary public's journal that contains only public records is the property of the notary public without regard to whether the notary public's employer purchased the journal or provided the fees for the commissioning of the notary public. F. Except as provided in subsections A and E, the notary's journal is a public record that may be viewed by or copied for any member of the public, but only upon presentation to the notary of a written request that details the month and year of the notarial act, the name of the person whose signature was notarized and the type of document or transaction. [28] Ariz. Admin. Code R2-12-1102 provides as follows: R2-12-1102. Notary Public Fees Notaries public may charge the following fees: 1. For acknowledgments, $2 per signature; 2. For jurats, $2 per signature; 3. For copy certifications, $2 per page certified; 4. For oaths or affirmations without a signature, $2.

[29] Ariz. Rev. Stat. § 41-330(A)(6) provides as follows: “A. The secretary of state may refuse to appoint any person as a notary public or may revoke or suspend the commission of any notary public for any of the following reasons . . . 6. Charging more than the fees authorized by statute or rule.” [30] Ariz. Rev. Stat. § 41-316(C) provides as follows: “A notary shall not advertise or charge or receive a fee for performing a notarial act except as specifically authorized by rule.” [31] Ariz. Rev. Stat. § 41-330(A)(4) provides as follows: “A. The secretary of state may refuse to appoint any person as a notary public or may revoke or suspend the commission of any notary public for any of the following reasons . . . 4. Failure to discharge fully and faithfully any of the duties or responsibilities required of a notary public.”

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