ALJDEC decisions subject to certification as final
18F-DI-031-REL · Department of Real Estate · 2017-10-16
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Real Estate Salesperson License of:
WEIDENHAMER, DEBORAH ANN, holder of license number SA636700000,
Respondent.
No. 18F-DI-031-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 12, 2017, at 1:00 p.m.
APPEARANCES: The Arizona Department of Real Estate (“the Department”) was represented by Ryan Krench, Esq., Assistant Attorney General; Deborah Ann Weidenhamer (“Respondent”) failed to appear.
ADMINISTRATIVE LAW JUDGE: Diane Mihalsky
_____________________________________________________________________
FINDINGS OF FACT
Procedural Background
The Department is the duly constituted authority for licensing and regulating real estate salespersons and brokers in Arizona.
On or about July 19, 2010, the Department issued Real Estate Salesperson License No. SA636700000 to Respondent. That license expired on July 31, 2016.
On or about August 30, 2017, the Department issued a Notice of Hearing and Complaint, alleging certain misconduct by Respondent and charging cause to discipline her salesperson’s license under A.R.S. §§ 32-2153(A)(1), 32-2153(A)(3), 32-2153(B)(2), 32-2153(B)(3), and 32-2153(B)(5), 32-2153(B)(7), and 32-2153(B)(10).
The Department’s Notice of Hearing and Complaint also set an evidentiary hearing before the Office of Administrative Hearings (“OAH”), an independent state agency, on October 12, 2017, at 1:00 p.m. The Department mailed the Notice of Hearing and Complaint via first class and registered mail to Respondent at her residential and business addresses of record, as well as to her address in the federal correctional institution in Phoenix in which she is currently incarcerated.
On October 12, 2017, hearing was held. The Department submitted six exhibits and presented the testimony of its Senior Investigator, James (“Jim”) Ledwith.
Respondent did not request to appear telephonically at the hearing or that the hearing be continued. Although the duly noticed hearing lasted for approximately 17 minutes, Respondent did not appear, personally or through an attorney. Consequently, Respondent did not present any evidence to defend her real estate salesperson’s license.
Hearing Evidence
On or about September 6, 2016, Respondent was charged by Information in the United States District Court for the District of Arizona Case No. CR-16-1072-PHX-ROS with felony bank fraud by falsely reporting her business earnings to a bank in order to receive a $35 million loan. Respondent was charged with continuing to submit false reports of her business income to obtain six loan modifications, for a total loan in the amount of $55 million.
On or about July 25, 2017, an amended Judgment in a Criminal Case was entered against Respondent in Case No. CR-16-1072-PHX-ROS pursuant to Respondent’s guilty plea to seven counts of bank fraud, all felonies. Respondent was sentenced to 84 months’ incarceration, all sentences to run concurrently from July 12, 2017.
On July 28, 2017, the Department summarily suspended Respondent’s salesperson’s license under A.R.S. §§ 32-2153 and 32-2157, finding that the public health, safety, and welfare require emergency action.
Respondent subsequently sent a letter to the Department’s attorney, indicating that she would agree to voluntarily surrender her salesperson’s license.
/ / / /
CONCLUSIONS OF LAW
The Notice of Hearing that the Department mailed to Respondent at his residential and business addresses of record and her address in prison was reasonable and Respondent is deemed to have received notice of the hearing.
Pursuant to A.R.S. § 32-2153(E), the lapsing or suspension of a license by operation of law or by order or decision of the Commissioner or a court of law or the voluntary surrender of a license by a licensee shall not deprive the Commissioner of the jurisdiction to proceed with any investigation of or action or disciplinary proceeding against the licensee. The Department has jurisdiction over Respondent and the subject matter in this case.
The Department bears the burden of proof to establish cause to discipline Respondent’s license and factors in aggravation of any penalty to be imposed by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
A.R.S. § 32-2153 provides as follows:
32-2153. Grounds for denial, suspension or revocation of licenses . . . .
A. The commissioner may suspend or revoke a license . . . issued under this chapter if it appears that the holder . . . , within five years immediately preceding, in the performance of or attempt to perform any acts authorized by the license or by this chapter, has:
1. Pursued a course of misrepresentation or made false promises, either directly or through others, whether acting in the role of a licensee or a principal in a transaction.
. . . .
3. Disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner.
. . . .
B. The commissioner may suspend or revoke a license . . . issued under this chapter when it appears that the holder . . . has:
. . . .
2. Been convicted in a court of competent jurisdiction in this or any other state of a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense.
3. Made any substantial misrepresentation.
. . . .
5. Been guilty of any conduct, whether of the same or a different character than specified in this section, which constitutes fraud or dishonest dealings.
. . . .
7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character.
. . . .
10. Violated any federal or state law, regulation or rule that relates to real estate or securities or that involves forgery, theft, extortion, fraud, substantial misrepresentation, dishonest dealings or violence against another person or failure to deal fairly with any party to a transaction that materially and adversely affected the transaction. This paragraph applies equally to violations of which the licensee was convicted in any lawful federal or state tribunal and to any admissions made in any settlement agreement by the licensee to violations.
The Department established cause to discipline Respondent’s salesperson’s license under A.R.S. §§ 32-2153(A)(1), 32-2153(A)(3), 32-2153(B)(2), 32-2153(B)(3), 32-2153(B)(5), 32-2153(B)(7), and 32-2153(B)(10) based on Respondent’s conviction for seven felonies involving bank fraud in Case No. CR-16-1072-PHX-ROS.
Respondent’s numerous violations, failure to appear for the duly noticed hearing, and current incarceration indicate that at this time, she cannot be regulated.
RECOMMENDED ORDER
In view of the foregoing,
IT IS ORDERED affirming the summary suspension of Respondent Deborah Ann Weidenhamer’s Real Estate Salesperson’s License Number SA636700000.
IT IS FURTHER ORDERED revoking Respondent Deborah Ann Weidenhamer’s Real Estate Salesperson’s License Number SA636700000.
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, October 16, 2017.
/s/ Diane Mihalsky
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate