ALJDEC decisions subject to certification as final

19F-059-REL-RES2 · Department of Real Estate · 2022-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson License of:

FISHER, JR, DAVID L, holder of License No. BR515477000,

Respondent

No. 19F-059-REL-RES2

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: December 16, 2021

APPEARANCES: No one appeared for David L Fisher Jr.; James Rolstead, Esq. for the Department of Real Estate

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On October 12, 2021, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing and Complaint setting the above-captioned matter for hearing at 1:00 p.m. on November 30, 2021 at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice of Hearing provided that hearing was being held to determine whether grounds exist to revoke Respondent David L. Fisher Jr.’s real estate broker’s license (number BR515477000).

Shortly before the hearing was to convene on November 30, 2021, Mr. Fisher sent the Department’s attorney a text asserting that he had been exposed to COVID. Mr. Fisher did not contact the tribunal and he did not appear at the hearing.

In fairness to Mr. Fisher, the Department agreed to continue the matter.

Through an Order dated December 2, 2021, the hearing was rescheduled to convene at 9:00 a.m. December 16, 2021. Through that Order, the parties were advised that they could appear at the hearing in person or virtually.

Mr. Fisher did not appear at 9:00 a.m. on December 16, 2021, and the matter was convened in his absence at about 9:15 a.m.

The Department presented the testimony of compliance officer Lauren Abril.

The Department issued Mr. Fisher’s license on January 17, 2008; the license is due to expire on January 31, 2022.

On September 23, 2019, the Department entered a Commissioner’s Final Order that as pertinent to this matter required Mr. Fisher to complete at least ten hours of continuing education in addition to the CE required for license renewal.

Ms. Abril sent Mr. Fisher an Introduction Packet providing information about the required CE and showing that he was required to complete the CE and submit to the Department his course certificates no later than March 23, 2020.

As of the hearing in this matter, the Department had not received proof that Mr. Fisher complied with the Commissioner’s Order by completing the required CE.

Through a Notice of Non-compliance letter dated January 26, 2021, the Department informed Mr. Fisher that he was not in compliance with the Commissioner’s Order and it extended to March 12, 2021 the deadline by which he was required to come into compliance.

Through a second Notice of Non-compliance dated May 17, 2021, the Department notified Mr. Fisher that he was not in compliance and extended to June 1, 2021 the deadline for him to come into compliance.

The second Notice was sent by certified mail to Mr. Fisher’s residential address of record, but was returned to the Department showing that he had moved. The second Notice was also sent to Mr. Fisher by email.

Mr. Fisher did not timely update with the Department his residential address as required by the Department’s rules.

Through a third Notice of Non-compliance dated June 4, 2021, the Department notified Mr. Fisher that he was not in compliance and extended to June 18, 2021 the deadline for him to come into compliance. The third Notice was sent to Mr. Fisher by email and by certified mail to his employer’s address.

On June 4, 2021, Mr. Fisher emailed Ms. Abril stating that he had completed the ten hours of CE and sent certificates to the Department. He asked if he could email the certificates to Ms. Abril, who responded that he should do so.

Ms. Abril provided credible testimony that Mr. Fisher did not email to her the CE certificates.

The Department’s mission includes protecting the public.

In furtherance of that mission, the Department must be able to contact license holders, which is why the rules require licensees to update the Department with any changes to their addresses of record.

Mr. Fisher’s failure to comply with the Commissioner’s Order, despite being granted extensions of time to do so, and his failure to appear at the hearing each show that he is not amenable to regulation.

Ms. Abril’s opinion was to the effect that Mr. Fisher’s license should be revoked considering that he is not amenable to regulation.

CONCLUSIONS OF LAW

The Department bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(2).

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).

By failing to complete the ten hours of CE as set out in the Commissioner’s Order, Mr. Fisher has violated Ariz. Rev. Stat. section 32-2153(A)(24), which is also a violation of section 32-2153(A)(3).

By failing to timely notify the Department of his address change, Mr. Fisher violated Ariz. Admin. Code section R4-28-303(D), which is also a violation of section 32-2153(A)(3).

Because Mr. Fisher has violated section 32-2153(A), the Department has authority to impose discipline against him.

Considering that Mr. Fisher failed to comply with the Commissioner’s Order and that he failed to appear at the hearing, his license should be revoked.

RECOMMENDED ORDER

IT IS ORDERED that David L. Fisher Jr.’s license number BR515477000 is revoked.

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.

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-137160-45720000Done this day, January 3, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate

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001

-137160-45720000