ALJDEC decisions subject to certification as final

18F-DI-127-REL · Department of Real Estate · 2018-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

JETT, DAWN, holder of Provisional Real Estate License number BR526648000,

and

DAWN SCHOOL OF BUSINESS AND CONTINUING EDUCATION, LLC, holder of Real Estate School License number S140004,

Respondents.

No. 15F-DI-132-REL

No. 18F-DI-127-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 11, 2018 at 9:00 AM.

APPEARANCES: The Arizona Department of Real Estate was represented by Lynette Evans – Assistant Attorney General, and appeared with Linda Bevins as her witness. No appearances on behalf of Respondents.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

FINDINGS OF FACT

After receiving information about a possible violation of the laws and rules governing Arizona Real Estate licensees, the Arizona Department of Real Estate (“Department”) initiated an investigation of Respondent Dawn Jett (“Respondent Jett”), holder of Provisional Real Estate License number BR526648000, and Administrator of Respondent Dawn School of Business and Continuing Education, LLC (“Respondent School”), holder of Real Estate School License number S140004. As a result of the investigation, the Department issued a Notice of Hearing and Complaint.

The Department’s Notice of Hearing and Complaint charged grounds to suspend or revoke Respondent Jett’s real estate salesperson’s license under ARIZ. REV. STAT. §§ 32-2153(A)(3), 32-2153(A)(9), 32-2153(A)(24), 32-2153(B)(7), and 32-2153(B)(11), and ARIZ. Admin. Code R4-28-301(F) and R4-28-303(D). The Department’s Notice of Hearing and Complaint also charged grounds to suspend or revoke from Respondent School’s Real Estate School License under ARIZ. REV. STAT. § 32-2135(C)(3), for any act that is grounds for discipline under § 32-2153(D).

The Department is the duly constituted authority for licensing and regulating real estate salespersons and brokers in Arizona. ARIZ. REV. STAT. §§ 32-2102 and 32-2153. The Department has authority to regulate all persons engaged in the business of, or acting in the capacity of, a real estate broker or salesperson, and to enforce the Arizona laws and rules relating to real estate.

An evidentiary hearing was held before the Office of Administrative Hearings, an independent state agency, to determine whether the Department should revoke Respondent’s real estate salesperson’s license and withdraw Respondent School’s certification.

At the hearing the Department presented the testimony of its investigator Linda Bevins and submitted Exhibits 1, 3-10, 10a, and 11-21. Respondents did not appear. The Department presented evidence and testimony to establish the facts set forth below.

On September 03, 2008, the Department issued provisional Real Estate Sales Person’s License No. BR526648000 to Respondent Jett. That license is due to expire on September 30, 2018. On February 26, 2015, the Department issued a Certificate of Administrator Approval to Respondent Jett, listing her as the Administrator for Respondent School. That certificate is due to expire on February 28, 2019.

The Department and Respondent Jett entered into a Consent Order (“the Order”) on October 26, 2015, as a result of a substantiated report that found Respondent willfully failed to disclose water leaks and mold to a buyer until after the sale of the property when the buyers confronted her about the damage; was issued a traffic ticket on September 11, 2014, for driving on a suspended license; for having an Arrest Warrant issued on December 02, 2015, for failing to appear in court; and for entering into a plea agreement on charges Ariz. Rev. Stat. §§ 28-3473 and 32-3903, both misdemeanors. Respondent Jett did not report the misdemeanor convictions to the Department within ten days as required by law.

As a result Respondent Jett was assessed a $3,000 civil penalty and issued a two-year provisional license per the Order. The Order noted, in pertinent part, that Respondent Jett was required to (a) submit notarized quarterly declarations showing compliance, (b) a list of escrow closed, along with all applicable statutorily required documentation, (c) attend twelve hours of approved continuing education classes within thirty days of the Order, and (d) maintain law abiding and moral behavior for the entire period of the Order.

On February 17, 2017, the Department sent Respondent Jett a Notice of Non-Compliance via Certified Mail. At that time, Respondent Jett was informed that her quarterly declarations and supporting documents had not been submitted, as required by the Order. She was commanded to submit the delinquent paperwork by March 01, 2017. Respondent Jett did not comply.

On March 09, 2017, a Compliance Officer from the Department emailed Respondent Jett regarding the above-captioned Notice of Non-Compliance and commanded her to submit the related requested documentation by March 20, 2017, or face disciplinary action. Respondent Jett did not comply.

On May 05, 2017, the Department sent Respondent Jett a Second Notice of Non-Compliance via Certified Mail. At that time, Respondent Jett was informed that her submissions on March 20, 2017, were incomplete, and reminded her that she had been asked to provide the missing documentation by April 28, 2017 in an April 21, 2017, email. She was commanded to submit the delinquent paperwork by May 26, 2016, or face disciplinary action. Respondent Jett did not comply.

On June 01, 2017, the Department sent Respondent Jett a Third Notice of Non-Compliance via Certified Mail. At that time, Respondent Jett was informed that she needed to submit the requested documentation from the Department’s May 05, 2017, letter, and supporting affidavit, by June 07, 2017. She was also informed that her quarterly reports from August 15, 2017, and October 15, 2017, were delinquent and needed to be submitted as well. The Department warned Respondent Jett that she was being referred for disciplinary action due to her continued noncompliance.

On September 08, 2017, the Department received a complaint against Respondent Jett. The complainant advised that Respondent Jett had been his property manager until May 11, 2017, whereby she ended the professional relationship with a thirty day notice. Complainant alleged that although he provided Respondent Jett with contact information for his new property management group, Respondent Jett never forwarded his tenant’s security deposit or keys to them. Complainant provided that his new management group contacted Respondent Jett via email on June 05, 2017, June 09, 2017, June 14, 2017, June 16, 2017, June 20, 2017, June 27, 2017, July 11, 2017, and July 24, 2017 but were never able to recoup any monies from her.

On September 15, 2017, the Department sent Respondent Jett a letter regarding receipt of the above-captioned complaint. Respondent Jett was asked to provide a written statement addressing the complaint’s allegations, along with any related supporting documentation, by September 27, 2017. Respondent Jett failed to comply.

On October 03, 2017, an Investigator from the Department emailed Respondent Jett regarding the September 08, 2017 complaint, and asked her to submit a signed response by October 05, 2017. Respondent Jett failed to comply.

A prehearing conference in this matter did not take place as the Department had not been able to reach Respondent Jett, or anyone on behalf of Respondent School, since June 01, 2017.

CONCLUSIONS OF LAW

Because at all times relevant to this matter, Respondent Jett was subject to the provisions of Title 32, Chapter 20, Arizona Revised Statutes, the Department has jurisdiction over this matter.

The Department bears the burden of proof to establish cause to revoke or suspend Respondent Jett’s real estate salesperson’s license by a preponderance of the evidence. Ariz. Rev. Stat. § 41-1092.07(G)(2). Respondent Jett bears the burden to establish affirmative defenses by the same evidentiary standard.

The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code R2-19-119. 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).

Ariz. Rev. Stat. § 32-2153(B) provides, in pertinent part, that:

The commissioner may suspend or revoke a license, deny the issuance of a license, issue a letter of concern to a licensee, issue a provisional license or deny the renewal or the right of renewal of a license issued under this chapter when it appears that the holder or applicant has:

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(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.

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(7) Not shown that the holder or applicant is a person of honesty, truthfulness and good character.

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(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.

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(11) Failed to respond in the course of an investigation or audit by providing documents or written statements.

Here, Respondent Jett had a fiduciary duty to her client to protect his interest(s); by providing proper and final accountings, and providing necessary information for business transactions.

Respondent Jett failed to remit monies due to a client on request, and further failed to provide that client with a final accounting for his property.

Respondent Jett also failed to cooperate with the Department during an investigation regarding this conduct.

Respondent Jett was also required to comply with the Order and abide by licensing laws, but failed to do so.

The preponderance of the evidence shows that Respondent Jett violated Ariz. Rev. Stat. §§ 32-2153(B)(5), (B)(7), (B)(10) and (B)(11).

Based on the proven violations of Ariz. Rev. Stat. §§ 32-2153(A)(3), 32-2153(A)(24), and 32-2153(B), the Department has authority to revoke Respondent Jett’s license and withdraw Respondent School’s certification.

Considering the facts and circumstances of this matter, the Department’s decisions to revoke Respondent’s Jett license and Respondent School’s certificate are appropriate.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that Dawn Jett’s real estate salesperson’s license number BR526648000 be revoked, and her Certificate of Administrator approval be withdrawn; resulting in the revocation of Dawn School of Business and Continuing Education, LLC’s real estate school license number S140004, 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 is five days after the date of that certification.

Done this day, April 19, 2018

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate