ALJDEC decisions subject to certification as final

19A-002-NOT · Secretary of State · 2019-05-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 16, 2019 APPEARANCES: Jose Oscar Diaz appeared, representing himself. Assistant Attorney General Kyle Cummings represented the Arizona Secretary of State. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _____________________________________________________________________ FINDINGS OF FACT 1. The Arizona Secretary of State (“Respondent”) is the authority for commissioning and regulating Notary Publics in the State of Arizona. 2. Petitioner is the holder of a Notary Commission issued by Respondent. 3. Pursuant to the Notice of Hearing issued by the Respondent, “[t]he hearing is to resolve the dispute between the Petitioner and [Respondent] concerning Respondent’s determination to REVOKE his Notary Commission.” 4. On March 12, 2018, Respondent received a complaint (“Complaint”) against Petitioner.[1] The Complaint alleged that Petitioner had notarized his wife’s signature on a statement about employment and income status for Maria Rodriguez Lopez. Ms. Lopez stated that, in fact, it was a forged signature, as his wife was not present to sign the statement. 5. The notarized statement contains a signature and contains the impression of Petitioner’s notary stamp/seal but does not contain an acknowledgement.[2] 6. By letter dated April 4, 2018, Respondent advised Petitioner of the Complaint and requested specific information from Petitioner, including a copy of journal pages (in a particular date span) and the copy of the page on which the notarization of the at-issue statement was reflected.[3] Respondent was clear in the instruction that the pages needed to be copies of the entire page. 7. In response, Petitioner provided, essentially, a “redacted” version of pages; the copies he provided were only copies of a portion of pages.[4] 8. By email dated April 23, 2018, Respondent again asked for the specific information and further explained the information requested.[5] 9. While Petitioner provided an explanatory statement with his response on May 1, 2018, the response again did not contain the requested documentation.[6] 10. By letter dated December 26, 2018, Respondent notified Petitioner of Respondent’s determination to revoke Petitioner’s Notary Commission.[7] Petitioner was further advised of his appeal rights. 11. On January 4, 2019, Respondent received Petitioner’s appeal.[8] Petitioner’s appeal stated that he had provided “all documentation” and that the notarization had been done for a “personally known person” – his wife. Petitioner stated that his wife had been present “at the time of the acknowledge (sic).” Petitioner stated that his wife was present at the time of the signing.” Petitioner requested an informal settlement conference. 12. Following the informal conference, Respondent informed Petitioner that it had decided to uphold its decision to revoke Petitioner’s Notary Commission.[9] 13. At hearing, Petitioner agreed that he had not used an acknowledgment and he indicated that he now knew he had not provided everything Respondent had asked for; he apologized for the oversight. 14. As to the circumstances, Petitioner explained that they have a store and that Ms. Rodriguez Lopez was working for them and needed a statement about her employment and income for purposes of renting an apartment. Petitioner stated that, at the time, his wife was “working” and “attending to clients at the store.” Petitioner noted that Ms. Rodriguez Lopez had later been terminated and he felt that was why she filed the complaint. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement, and the standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. Pursuant to A.R.S. § 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. See A.A.C. R2-19-119(A). 3. The evidence of record is inconsistent and, therefore, inconclusive whether the wife’s signature is forged or whether wife was present at the time of the signature, or a notarization thereof, of the at-issue statement. 4. The evidence or record established that Petitioner violated the provisions of A.R.S. § 41-330(A)(8)[10] because he notarized the statement without adding an acknowledgment. 5. The evidence of record established that Petitioner violated the provisions of A.R.S. §§ 41-313(D)(1),[11] 41-317(B),[12] and 41- 319[13] 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. Petitioner’s failure to produce a copy of the at-issue document, which he indicated was notarized for a “personally known” individual, when so requested by Respondent demonstrates a failure to have kept “all records.” 6. The evidence of record established that Petitioner violated the provisions of A.R.S. § 41-330(A)(4)[14] because he failed to fully and faithfully discharge his duties as a notary public in this matter. 7. The evidence of record supports Respondent’s revocation of Petitioner’s Notary Commission. RECOMMENDED ORDERS IT IS RECOMMENDED that Petitioner’s appeal in be denied and that Petitioner’s Notary Commission be revoked on the effective date of the Order entered by the Arizona Secretary of State 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 (5) days from the date of the certification.

Done this day, May 6, 2019.

/s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to:

Evelia McGee, Notary Public Complaint Coordinator Secretary of State

----------------------- [1] Exhibit 1. [2] Exhibit 2. [3] Exhibit 3. Additionally, he was asked to provide a copy of the notarized document, as he was required to keep a copy of such in instances when he had “personal knowledge” of the signer. He did not provide such a copy. [4] Exhibit 4. [5] Exhibit 5. [6] Exhibit 6. [7] Exhibit 7. [8] Exhibit 8. [9] Exhibit 10. [10] A.R.S. § 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: . . . 8. Failure to complete the acknowledgement or jurat at the time the notary’s signature and seal are affixed to the document.” [11] A.R.S. § 41-313(D)(1) provides as follows: “D. 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.” [12] A.R.S. § 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. … [13] A.R.S. § 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.

[14] A.R.S. § 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