ALJDEC decisions subject to certification as final

18F-DI-103-REL · Department of Real Estate · 2018-01-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson License of:

SKWIAT, MICHAEL, holder of license number SA575806000,

Respondent.

No. 18F-DI-103-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 13, 2017

APPEARANCES: Respondent Michael Skwiat appeared on his own behalf. The Arizona Department of Real Estate was represented by Assistant Attorney General Ryan Krench.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

On or about October 3, 2014, the Arizona Department of Real Estate (Department) issued Salesperson License No. SA575806000 to Respondent Michael Skwiat, which expires on October 31, 2018.

On or about August 17, 2017, the Maricopa County Superior Court accepted Respondent’s guilty plea to a charge of Possession of a Forgery Device, a class 6 undesignated felony, in case number CR2016-005424. Respondent was sentenced to two years of probation and ordered to pay restitution, fines, and fees.

On or about August 25, 2017, Respondent notified the Department of his conviction.

On or about October 2, 2017, the Department issued an Order of Summary Suspension and Notice of Opportunity for Hearing (Order) to Respondent finding that grounds existed to summarily suspend Respondent’s salesperson license.

On or about November 6, 2017, the Department issued a Notice of Hearing that gave notice that an evidentiary hearing was scheduled before the Office of Administrative Hearings. The Notice of Hearing informed Respondent that the Department was seeking the revocation of his salesperson’s license.

At the hearing, the Department presented its case through the testimony of Wayne Jackson, Sr., Investigator, and submitted five exhibits. Respondent testified on his own behalf and submitted letters of reference.

According to Respondent’s testimony, the conviction was the result of a 2015 fraudulent scheme conducted by his business partner at the time in which the individual listed a vacation rental property online and accepted deposits even though no such property existed. Respondent asserted that he had no involvement in the scheme and that he was only charged because the business partner used his laptop in the furtherance of the scheme. Respondent also acknowledged that he received checks made out to him from the victims of the scheme that he cashed, but that he did not know at the time that they were connected the fraud and believed them to be related to his legitimate business. Respondent stated that he had made full restitution to the victims. Respondent refused to provide the name of the business party on the advice of counsel.

Respondent asserted that at the time his license was suspended, he had $30 million in upcoming listings and had lost $300,000.00 in commissions over the three prior months. Respondent stated the “damage has been done already” and that if his license was reinstated, he would have to start building his business again from scratch.

Respondent submitted letters of reference speaking to his good character and fitness to work in the field of real estate.

CONCLUSIONS OF LAW

The Commissioner has jurisdiction over Respondent and the subject matter in this case.

Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Department has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119(A).

The evidence of record established that Respondent was convicted in a court of competent jurisdiction of Criminal Possession of a Forgery Device, a class 6 Undesignated Felony, within the meaning of A.R.S. § 32-2153(B)(2).

The evidence of record established that grounds exist to discipline Respondent’s salesperson’s license pursuant to A.R.S. § 32-2153(B)(2). Given the circumstances presented in this case, the Administrative Law Judge finds revocation is appropriate.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that Respondent’s real estate salesperson’s license be revoked on the effective date of the 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 shall be five days from the date of the certification.

Done this day, January 2, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate