ALJDEC decisions subject to certification as final

19F-096-REL · Department of Real Estate · 2019-05-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 14, 2019, at 1:00 p.m. APPEARANCES: The Arizona Department of Real Estate (“the Department”) was represented by Lynette Evans, Esq., Assistant Attorney General; Brandon Brown (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Procedural Background 1. The Department is the duly constituted authority for licensing and regulating real estate salespersons and brokers in Arizona.

2. On or about June 30, 2017, the Department issued Real Estate Salesperson License No. SA671493000 to Respondent. That license will expire on June 30, 2019, and is currently inactive.[1] The Department referred its intent to take action against Respondent’s license to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 3. On April 4, 2019, the Department issued a Notice of Hearing and Complaint, setting a hearing before OAH on May 14, 2019, at 1:00 p.m. The Department sent the Notice of Hearing to Respondent at his address of record. 4. A hearing was held on May 14, 2019. The Department’s attorney submitted six exhibits and presented the testimony of its Senior Investigator Wayne L. Jackson. 5. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed twenty minutes to allow Respondent additional travel time, Respondent did not appear, personally or through an attorney, and did not contact OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend his license. Hearing Evidence 6. On or about May 14, 2018, the Arizona Department of Public Safety sent a letter to Respondent, with a copy to the Department, informing him that his Level One Fingerprint Clearance Card had been suspended pursuant to A.R.S. § 41- 1758.04(C). The letter explained that Respondent had been arrested for Felony Criminal Trespassing, in violation of A.R.S. § 13-1504, misdemeanor Disorderly Conduct involving Domestic Violence, in violation of A.R.S. § 13-3601, and misdemeanor Assault, in violation of A.R.S. § 13-1203, by the Scottsdale Police Department on May 10, 2018.[2] 7. The Department commenced an investigation and obtained documents relating to Respondent’s arrest, including an Arizona Traffic Ticket and Complaint issued by the City of Scottsdale for a response to a call on May 10, 2018, at 8:35 a.m. that resulted in the arrest of Respondent for Assault and Disorderly Conduct involving domestic violence.[3] 8. Respondent was subsequently charged in Scottsdale City Court, Case No. M-0751-CR-[number redacted] with assault, disorderly conduct, and criminal trespass in the second degree. On or about June 20, 2018, Respondent accepted a plea agreement under which he pled guilty to disorderly conduct, was sentenced to 11 months’ probation, fined, and required to undergo counselling in exchange for the other two charges being dismissed. Respondent was also sentenced to 30 days’ confinement, with credit for 3 days served and the remaining 27 days suspended. The Scottsdale City Court subsequently entered an order imposing the sentence.[4] 9. On August 8, 2018, the Department sent a letter to Respondent, stating that it was sending the letter because he had failed to inform the Department of the conviction within ten days. The Department required Respondent to submit a written statement of the circumstances relating to the conviction no later than August 15, 2018.[5] 10. Mr. Jackson testified that Licensees are required to inform the Department of convictions within ten days, but that the Department has not received any information from Respondent regarding his July 20, 2018 conviction. Mr. Jackson pointed out that the Department’s August 8, 2018 letter was sent to Respondent via regular mail, certified mail, and email to his addresses of record. CONCLUSIONS OF LAW The Notice of Hearing that the Department sent to Respondent at his address of record was reasonable and he is deemed to have received notice of the hearing.[6] The Department has jurisdiction over Respondent and the subject matter in this case.[7] The Department bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[8] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[9] A.A.C. R4-28-301(A)(1)(a) requires a license applicant to disclose certain information to the Department, including criminal history. A.A.C. R4-28- 301(F) provides in relevant part as follows: Each salesperson . . . shall, within 10 days of each occurrence, notify the Commissioner in writing of any change in information provided under subsection (A)(1)(a) through (d) and provide documentation listed in subsection (A)(2).

A.A.C. R4-28-303(D)(1) provides in relevant part as follows: A salesperson or broker shall notify the Department in writing within 10 days of any change in the individual’s personal information or qualifications. The salesperson or broker shall include in the notice the individual’s name, signature, license number, and:

1. If disclosing information required under R4-28-301, such as a criminal conviction . . . , a written statement providing detailed information and, upon request by the Department, the supporting documentation identified in R4-28-301(A)(2).

The Department established that Respondent failed to notify the Department of his criminal convictions within ten days. A.R.S. § 32-2160.01(A) provides in relevant part as follows: Any licensee who is subject to the jurisdiction of the department and who has violated any provision of this chapter or any rule or order adopted or issued by the commissioner . . . may be assessed a civil penalty by the commissioner, after a hearing, in an amount not to exceed one thousand dollars for each infraction.

The Department established cause to impose a civil penalty in the amount of $1,000.00 against Respondent. RECOMMENDED ORDER In view of the foregoing, on the effective date of the final order in this matter, IT IS ORDERED imposing a civil penalty in the amount of $1,000.00 (One Thousand Dollars) against Respondent Brandon Brown’s Real Estate Salesperson’s License Number SA671493000. IT IS FURTHER ORDERED requiring Respondent to complete an additional hours of continuing classroom education on the Board’s requirements for licensees that the Board has approved before his next license renewal and that he provide documentation that he has completed the continuing education with his next license renewal application. 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 days from the date of the certification. Done this day, May 30, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] See the Department’s Exhibit 1. [2] See the Department’s Exhibit 2. [3] See the Department’s Exhibit 3. [4] See the Department’s Exhibits 4 and 5. [5] See the Department’s Exhibit 6. [6] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [7] See A.R.S. § 32-2153. [8] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [9] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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