ALJDEC decisions subject to certification as final

18F-DI-393-REL · Department of Real Estate · 2021-09-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

JEAN GONZVAR, holder of License No. BR556112000,

Respondent

No. 18F-DI-393-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 24, 2021

APPEARANCES: Respondent Jean Gonzvar appeared on his own behalf. The Arizona Department of Real Estate was represented by Assistant Attorney General James Rolstead, Esq.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

The Arizona Department of Real Estate (Department) is the duly constituted authority for licensing and regulating the practice of real estate in the State of Arizona.

On or about December 11, 2019, Jean Gonzvar (Respondent) entered into a Consent Order with the Department. The Consent Order required Respondent to attend nine hours of in-classroom approved continuing education classes in addition to the courses required for license renewal. Respondent agreed to comply with all the terms and deadlines in the Consent Order.

Respondent was ordered to submit the completed course certificates to the Department by March 10, 2020. Respondent failed to submit the certificates. Respondent was then provided an extension to complete the courses to April 24, 2020. Respondent again failed to timely submit the certificates.

On January 26, 2021, the Department sent Respondent a Notice of Non-Compliance with Commissioner’s Order indicating the certificates were not submitted by the extended deadlines and that as a courtesy one more extension to March 22, 2021, would be granted.

On July 19, 2021, the Department issued a Notice of Hearing to Respondent for his failure to comply, at the Office of Administrative Hearings, an independent state agency.

The Department presented the testimony of Lauren Abril and offered 11 exhibits into evidence.

Ms. Abril was a Compliance Specialist for the Department, and was Respondent’s main point of contact during this time.

Ms. Abril testified that Respondent, on February 4, 2020, submitted the Couse Approval Form for the three classes he was going to take. Ms. Abril testified further that she approved the classes as she believed that they were in-person.

Ms. Abril testified that on March 17, 2020, Respondent informed her that due to the COVID-19 pandemic, he was unable to attend the courses, and requested if he could complete the requirement through distance learning courses. Ms. Abril testified that she provided Respondent a 30 day extension to complete the courses, however, the classes still needed to be completed in-person.

Next, Ms. Abril testified that on January 15, 2021, she sent Respondent a letter informing him that he was still not in compliance but that he could now attend the courses if they were remotely hosted in addition to in person.

Ms. Abril testified that she received three certificates from Respondent for courses he attended on or about January 28, 2021.

Ms. Abril testified that on February 5, 2021, she informed Respondent that the certificates Respondent submitted were not sufficient, and again extended the deadline until March 1, 2021.

Ms. Abril testified that on June 8, 2021, she again corresponded with Respondent informing him he now had until June 23, 2021 to submit the certificates.

Finally, Ms. Abril testified that as of the date of the hearing, Respondent had submitted only 3 hours of the required 9 hours of properly approved courses.

The Department concluded its case requesting that Respondent pay a $1,000.00 civil penalty for the violation of the Consent Order.

Respondent testified that he was confused as to how the Department approved the three classes in February 2020, and then did not accept the same when he submitted the certificates.

Respondent also testified that it was difficult to find in-person classes due to the COVID-19 pandemic, and did not complete the 9 hours of in-person classes. Respondent testified though that he has taken the courses at least two times.

However, Respondent testified that he has now completed 1 approved webinar class for three credits, and was scheduled to take the other two classes in mid-to-late September.

Finally, Respondent testified that while he did not complete the requirements, that he believed that only a $500.00 civil penalty was appropriate due to the mass confusion over what classes counted for in-person.

CONCLUSIONS OF LAW

Pursuant to A.R.S. Title 32, Chapter 20, the Department has the authority and duty to regulate all persons engaged in the business of, or acting in the capacity of, a real estate broker or salesperson, and to enforce all statutes, rules, and regulations relating to real estate. 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).

Pursuant to A.R.S. § 32-2153(A)(24), the Commissioner may suspend or revoke a license if the licensee violated any condition or term of a commissioner’s order.

The evidence of record established that Respondent failed to timely complete the classes required under the Consent Order. While the initial time to complete the classes could be excused due to the COVID-19 pandemic, there was no reasonable justification provided for not having the classes completed at this point, given the multitude of extensions as well as relaxing the “in-person requirement.” Respondent provided no evidence that in-person classes were not available during the relevant time period for completion. Therefore, the preponderance of the evidence established that Respondent violated A.R.S. § 32-2153(A)(24).

ORDER

Based upon the foregoing,

IT IS RECOMMENDED that within thirty (30) days of the effective date of the above Final Order entered in this matter, Respondent shall pay to the Department a civil penalty in the amount of $500.00, and such payment shall be made by cashier’s check or money order made payable to the Department.

IT IS FURTHER RECOMMENDED in the event that Respondent fails to pay the penalty, the Department take action to impose further discipline upon proper notice to Respondent.

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 (5) days from the date of that certification.

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-137160-45720000Done this day, September 2, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

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-137160-45720000