ALJDEC decisions subject to certification as final

19A-004-NOT · Secretary of State · 2019-07-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 03, 2019 at 8:30 AM. APPEARANCES: No appearance(s) on behalf of August Francis Schweers, III (“Petitioner”). Assistant Attorney General Kyle Cummings, Esq. appeared on behalf of the Arizona Secretary of State (“Respondent”) with Patricia Viverto as a witness. ADMINISTRATIVE LAW JUDGE: Jenna Clark. _____________________________________________________________________ After a review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Notary Public Complaint Coordinator for Respondent. FINDINGS OF FACT Background and Procedure 1. On May 17, 2019, Respondent referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on Petitioner’s appeal of Respondent’s determination to revoke his Notary Commission. 2. On May 30, 2019, 2018, Respondent issued a Notice of Hearing, setting a hearing on July 03, 2019, at 8:30 a.m. at OAH. The Notice of Hearing advised that “[I]f the Petitioner fails to appear, the Administrative Law Judge may proceed in the Petitioner’s absence.”[1] 3. Respondent mailed a copy of the Notice of Hearing to Petitioner at his address of record. The Notice of Hearing was not returned as undeliverable by the United States Postal Services. 4. Although the start of the hearing was delayed five minutes, Petitioner did not request to appear telephonically, did not appear personally or through an attorney, and did not contact OAH to request a continuance or that the start of the hearing be further delayed.[2] Consequently, Petitioner did not present any evidence to prosecute his appeal of Respondent’s intent to revoke his Notary Commission. Hearing Evidence 5. Respondent presented the testimony of Patricia Viverto, Director of Business Services, and submitted twenty-four exhibits into the record. The Notice of Hearing was also admitted into the record. Ms. Viverto’s testimony 6. Ms. Viverto testified that her office commissions notaries for the State of Arizona. Ms. Viverto clarified that a notary public is an official of integrity appointed to serve the public as an impartial witness and executioner for performing certain legal formalities, to prevent fraudulent acts related to the signing of important documents. 7. Respondent regulates notaries pursuant to authorities conferred in the Arizona Revised Statutes (“Ariz. Rev. Stat”), Arizona Administrative Code (“Ariz. Admin. Code”), and the Arizona Department of Administration’s Accounting Manual.[3] 8. Per Ms. Viverto, one of her job duties is to review complaints received by her office. Specifically, she coordinates with the Attorney General’s office to investigate said complaint(s), and then reports the findings back to Respondent for further action, if any. 9. Regarding the case at bar, Ms. Viverto testified that her office received two complaints against Petitioner. 10. The first complaint was received on or about November 15, 2017.[4] The complainant, Darren Markley,[5] alleged that Petitioner improperly notarized a document on November 07, 2017. Specifically, it was alleged Petitioner knowingly participated in wrongful notarization and the financial exploitation of a vulnerable ninety- eight year old memory care patient (“Patient #1”) whereby Patient #1’s daughter placed a pen in her non-dominate hand and forced Patient #1 to sign a document with the daughter’s hand over Patient #1’s. Petitioner subsequently notarized the document. Patient #1’s roommate, Judy Schaffer, witnessed the entire event. 11. The second complaint was received on or about March 23, 2018.[6] The complainant, Daniel Gust, alleged that Petitioner improperly notarized a document that same day. Specifically, it was alleged Petitioner knowingly participated in wrongful notarization and the financial exploitation of a vulnerable intensive care unit patient (“Patient #2”) whereby Patient #2’s husband signed a Special Durable Power of Attorney for the sale of residential property on Patient #2’s behalf, as she was too weak to grasp a pen or open her eyes. Petitioner subsequently notarized the document without asking to see any identification, and later asked a stranger to sign as a witness. Mr. Gust witnessed the entire event. 12. On May 01, 2018, Respondent issued a letter to Petitioner to advise him of the Markley and Gust complaints.[7] Petitioner was advised that he had until May 16, 2018, to submit a reply to the allegation(s) and also provide copies of his journal regarding the notarization at issue.[8] 13. On May 08, 2018, Petitioner submitted separate electronic responses to Respondent regarding both complaints. With respect to the Markley complaint, Petitioner admitted that no journal entry existed for Patient #1 on November 07, 2017, because he had allegedly left his notary journal at home that day.[9] Petitioner further admitted that he did not write the notarization down on a sheet of paper, or keep a copy of the document he had notarized.[10] Petitioner alleged he asked Patient #1 three customary questions prior to performing the underlying notarization. With respect to the Gust complaint, Petitioner did not specifically address the allegation, but denied notarizing “anything for Dr. Niad on March 23rd 2017.”[11] Petitioner assured Respondent that he would supply copies of both sets of journal entries via regular US Mail, which he did.[12] 14. On June 25, 2018, Respondent replied to Petitioner’s correspondences and requested additional information to be returned no later than July 05, 2018.[13] 15. Petitioner timely complied.[14] 16. On July 11, 2018, Respondent requested additional/clarifying information to be returned no later than July 19, 2018.[15] 17. Again, Petitioner timely complied.[16] 18. On July 16, 2018, Respondent requested additional/clarifying information to be returned no later than July 24, 2018.[17] 19. Again, Petitioner timely complied.[18] 20. On February 28, 2019, Respondent issued an Intent to Revoke letter to Petitioner.[19] Respondent based its determination on the following alleged violations: (1) Petitioner failed to comply its investigation pursuant to Ariz. Rev. Stat. §§ 41-313(E)(4), 41-319(A) and 41- 331(B); (2) Petitioner failed to update his contact information pursuant to Ariz. Rev. Stat. §§ 41-323(A) and 41-323(C); (3) Petitioner failed to keep, maintain and protect as a public record a journal of all official acts performed by Petitioner as described in Ariz. Rev. Stat. § 41-319, for a period of five (5) years pursuant to Ariz. Rev. Stat. §§ 41-313(E)(1), 41-317(B), and 41-319; (4) Petitioner failed to document satisfactory evidence of identity in their journal as required by Ariz. Rev. Stat. §§ 41-313(E)(1), 41- 319(A)(4), 41-319(A)(5), and 41-330(A)(4); (5) Petitioner failed to record requisite journal information pursuant to Ariz. Rev. Stat. §§ 41-319 and 41-313(E)(1); (6); Petitioner failed to prove that he does not charge above the maximum allowable fee per Ariz. Rev. Stat. §§ 41- 330(A)(6), 41-316(C), 38-411, 38-412, and 38-413; and (7) Petitioner failed to discharge fully and faithfully the duties of a notary public under Ariz. Rev. Stat. §§ 41-330(A)(4).[20] Petitioner was also advised that he had a right to request an evidentiary hearing within thirty days from the date of the Intent to Revoke letter.[21] 21. On March 23, 2019, Petitioner submitted a request for an informal settlement conference to Respondent.[22] 22. On March 28, 2019, Respondent sent Petitioner a notification that his informal settlement conference was scheduled for April 03, 2019, at 3:30 p.m.[23] 23. On April 09, 2019, Respondent sent Petitioner a letter affirming its decision to revoke his Notary Commission as of March 14, 2019.[24] Respondent noted that due to Petitioner’s settlement conference participation on April 03, 2019, Respondent decided to remove its first and second findings but still upheld its initial determination.[25] Petitioner’s revocation became effective by date of the notification, April 09, 2019. 24. On May 03 2019, Petitioner submitted an appeal and request for evidentiary hearing.[26] CONCLUSIONS OF LAW 1. This matter lies within Respondent’s jurisdiction pursuant to Ariz. Rev. Stat. § 41-330. The matter was properly brought before OAH pursuant to Ariz. Rev. Stat. § 41-1092 et seq. 2. The Notice of Hearing that Respondent mailed to Respondent at his address of record was reasonable, as it was not returned as undeliverable by the United States Post Office. Thus, Respondent is deemed to have received notice of the hearing.[27] 3. Pursuant to Ariz. Rev. Stat. § 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.[28] Petitioner bears the burden to establish factors in mitigation of the allegation(s) and raise any affirmative defenses by the same evidentiary standard.[29] 4. However, because Petitioner failed to appear and present any evidence, there is insufficient evidence to overcome or rebut the credible evidence in the record as presented by Respondent. Thus, the facts in this case are not in dispute. 5. The evidence of record establishes that Petitioner violated the provisions of Ariz. Rev. Stat. § 41-330(A)(4)[30] because he knowingly, intentionally, and volitionally failed to uphold requirements and standards as outlined in applicable statutes and rules. 6. The evidence of record also establishes that Petitioner violated the provisions of Ariz. Rev. Stat. §§ 41-313(D)(1),[31] 41-317(C),[32] and 41-319[33] because he failed to maintain and keep all records and journals of his notary acts for at least five years from the date of the act that was performed, and ensure said entries complied with applicable rules and regulations. 7. Pursuant to Ariz. Admin. Code R2-12-1102,[34] the evidence of record further establishes that Petitioner violated the provisions of Ariz. Rev. Stat. §§ 41-330(A)(6)[35] and 41-316(C)[36] because he charged $40.00 for a transaction which greatly exceeded the maximum he could legally charge for his service(s). See also Ariz. Rev. Stat. §§ 38- 411, 38-412, and 38-413. 8. Lastly, the evidence of record establishes that Petitioner violated the provisions of Ariz. Rev. Stat. § 41-330(A)(4) because he failed to fully and faithfully discharge his duties as a notary public in this matter. 9. Therefore, based on a review of the relevant and credible evidence of record in this matter, this Tribunal holds that Respondent’s revocation of Petitioner’s Notary Commission was proper. RECOMMENDED ORDER It is recommended that Petitioner’s Notary Commission be revoked on the effective date of the Final Order entered in Docket No. 19A-004-NOT. 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, July 03, 2019.

/s/ Jenna Clark Administrative Law Judge

Transmitted electronically to:

Evelia McGee, Notary Public Complaint Coordinator Katie Hobbs, Secretary of State ----------------------- [1] See Notice of Hearing. [2] On July 02, 2019, Petitioner emailed Mr. Cummings the following: Sir, I have determined to withdraw my appeal set for tomorrow July 3rd 2019 at 8:30 a.m.” See Respondent Exhibit 24. [3] See Respondent Exhibit 15. [4] See Respondent Exhibit 1. [5] Mr. Markley is an investigator for the Arizona Department of Adult Protective Services, a division of the Arizona Department of Economic Security. On January 05, 2018, Mr. Markley sent Petitioner a Request for Information letter regarding this complaint. See Respondent Exhibit 21. [6] See Respondent Exhibit 2. [7] See Respondent Exhibits 3 and 5. [8] Id. [9] See Respondent Exhibit 4. [10] Id. [11] See Respondent Exhibit 6. [12] See Respondent Exhibits 4 and 6. [13] See Respondent Exhibit 8. [14] See Respondent Exhibits 9 and 10. [15] See Respondent Exhibit 11. [16] See Respondent Exhibit 12. [17] See Respondent Exhibit 13. [18] See Respondent Exhibit 14. [19] See Respondent Exhibit 16. [20] Id. [21] Id. [22] See Respondent Exhibit 17. [23] See Respondent Exhibit 18. [24] See Respondent Exhibits 16 and 19. [25] Id. [26] See Respondent Exhibit 20. [27] See Ariz. Rev. Stat. §§ 41-1092.04 and 41-1092.05(D). [28] See Ariz. Rev. Code R2-19-119(A). [29] See Ariz. Admin. Code R2-19-119(B)(2). [30] Ariz. Rev. Stat. § 41-330(A)(4) 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: . . . 4. Failure to discharge fully and faithfully any of the duties or responsibilities required of a notary public.” [31] Ariz. Rev. Stat. § 41-313(D)(1) provides as follows: “Notaries public shall [k]eep, maintain and protect as a public record a journal of all official acts performed by the notary as described in section 41-319.” [32] Ariz. Rev. Stat. § 41-317(C) 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. On receipt of the records and journals from a notary public who no longer is commissioned, the secretary of state shall keep all records and journals of notaries public deposited in the secretary of state's office for five years and shall give certified copies thereof when required, and for the copy certifications the secretary of state shall receive the same fees as are by law allowed to notaries public. The copy certifications shall be as valid and effectual as if given by a notary public.

[33] Ariz. Rev. Stat. § 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. [34] Ariz. Admin. Code R2-12-1102 provides as follows: R2-12-1102(E). Notary Public Fees Notaries public may charge the following fees: 1. For acknowledgments or jurat, “no charge” up to $10 per notary public signature; 2. For a copy certification, “no charge” up to $10 per page certified; 3. For an oath or affirmation, “no charge” up to $10 per notarial act.

[35] Ariz. Rev. Stat. § 41-330(A)(6) 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 . . . 6. Charging more than the fees authorized by statute or rule.” [36] Ariz. Rev. Stat. § 41-316(C) provides as follows: “A notary shall not advertise or charge or receive a fee for performing a notarial act except as specifically authorized by rule.”

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826