ALJDEC decisions subject to certification as final

19F-115-REL · Department of Real Estate · 2019-09-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 19, 2019, at 1:00 p.m. and September 10, 2019, at 9:00 a.m. APPEARANCES: Jennifer Del Castillo (“Respondent”) appeared telephonically on her own behalf at the June 19, 2019 hearing date but failed to appear at the September 10, 2019 hearing date; the Arizona Department of Real Estate (“the Department”) was represented at both hearing dates by Deian Ousounov, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background 1. The Department is the duly constituted authority for licensing and regulating real estate salespersons and brokers in Arizona. 2. On or about March 20, 2006, the Department issued Real Estate Salesperson License No. SA57376000 to Respondent. That license will expire on March 31, 2020.[1] 3. On or about May 14, 2019, the Department issued a Notice of Hearing and Complaint, alleging certain misconduct by Respondent and charging cause to discipline her salesperson’s license under A.R.S. §§ 32-2153(A)(3) and 32-2153(B)(10) and A.A.C. R4-28- 301(F). 4. The Department’s Notice of Hearing and Complaint set an evidentiary hearing before the Office of Administrative Hearings (“OAH”), an independent state agency, on June 19, 2019, at 1:00 p.m. 5. On June 19, 2019, a hearing was commenced. The Department submitted six exhibits and was prepared to present the testimony of Wayne L. Jackson, its Senior Investigator assigned to the matter. Respondent called OAH, stated that she had a family emergency, and asked that the hearing be continued for a week. 6. The Department’s attorney did not oppose the requested continuance. The Administrative Law Judge (“ALJ”) informed the parties that she would set a continued hearing on August 30, 2019, at 9:00 a.m. The ALJ confirmed Respondent’s email address. 7. Shortly after the June 19, 2019 hearing, the ALJ realized that she had other cases on August 30, 2019, that could not be reassigned or rescheduled. On June 19, 2019, the ALJ issued an order setting a continued hearing on September 10, 2019, at 9:00 a.m. OAH staff sent the order to Respondent at the email address that she provided. 8. Respondent never contacted OAH again. Respondent did not request to appear telephonically at the continued hearing or that the hearing again be continued. Respondent did not appear, personally or through an attorney, at the September 10, 2019 continued hearing. Consequently, Respondent did not present any evidence to defend her real estate salesperson’s license. 9. The Department presented Mr. Jackson’s testimony about his investigation and to establish foundation for the Department’s exhibits. Additional Hearing Evidence 10. On March 27, 2015, Respondent entered into an Accelerated Settlement Agreement with the Department in which she acknowledged that she had failed to notify the Department within ten days of an August 13, 2013 misdemeanor DUI conviction, in violation of A.R.S. § 32-2153(A)(3) and A.A.C. R4-28-301(F). As a result of her violations, Respondent agreed to pay a $750.00 civil penalty as authorized by A.R.S. § 32-2160.01.[2] 11. On September 25, 2018, Respondent filed a license renewal application with the Department. On the application, Respondent answered “yes” to the question, “Has the Applicant been convicted or entered into a plea agreement or a plea of NOLO CONTENDERE (no contest) to ANY misdemeanor in Arizona or any other state, whether or not the plea or verdict was set aside, judgment or sentencing was deferred, the conviction was dismissed or expunged, or has been pardoned.”[3] 12. Respondent included a written statement with her license renewal application which stated, in part, “On January 26, 2018, my fiancé and I got into an argument. . . . He pushed me and I pushed back. He called police and I was arrested.”[4] 13. The Department submitted an Arizona Traffic Ticket and Complaint that showed that on January 26, 2018, officers of the Goodyear Police Department had arrested Respondent for assault with intent to injure/reckless, disorderly conduct, and resisting arrest.[5] 14. The Department submitted a Title 9 Plea Agreement Diversion In Goodyear City Court Case No. CM2018-00039, dated March 13, 2018, that evidenced Respondent’s guilty plea to disorderly conduct/domestic violence on January 26, 2019, in exchange for dismissal of all other charges. As a result of her plea, Respondent was sentenced to complete a 26-week domestic violence program, to pay fines, and to give up her right to possess a firearm.[6] 15. Mr. Jackson testified that Respondent did not timely disclose the March 13, 2018 conviction to the Department. 16. Mr. Jackson testified that the Department was concerned that Complainant had engaged in a “shoving match” with her fiancé because it involved violence against another and assault. 17. Mr. Jackson testified that the Department was concerned about Respondent’s failure to timely disclose the March 13, 2018 disorderly conduct conviction because it was not the first time that she had failed to timely disclose a criminal conviction. CONCLUSIONS OF LAW The order continuing the hearing at Respondent’s request that OAH staff sent to the email address that Respondent provided was reasonable and Respondent is deemed to have received notice of the continued hearing.[7] The Department has jurisdiction over Respondent and the subject matter in this case.[8] The Department bears the burden of proof to establish cause to discipline Respondent’s license and factors in aggravation of any penalty to be imposed by a preponderance of the evidence.[9] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[10] A.R.S. § 32-2153 provides as follows: 32-2153. Grounds for denial, suspension or revocation of licenses . . . .

A. The commissioner may suspend or revoke a license . . . issued under this chapter if it appears that the holder . . . , within five years immediately preceding, in the performance of or attempt to perform any acts authorized by the license or by this chapter, has: . . . .

3. Disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner. . . . .

B. The commissioner may suspend or revoke a license . . . issued under this chapter when it appears that the holder . . . has: . . . .

10. Violated any federal or state law, regulation or rule that relates to real estate or securities or that involves forgery, theft, extortion, fraud, substantial misrepresentation, dishonest dealings or violence against another person or failure to deal fairly with any party to a transaction that materially and adversely affected the transaction. This paragraph applies equally to violations of which the licensee was convicted in any lawful federal or state tribunal and to any admissions made in any settlement agreement by the licensee to violations.

A.A.C. R4-28-301(F) provides in relevant part as follows: Each salesperson, broker, school owner, director, administrator, and instructor shall, within 10 days of each occurrence, notify the Commissioner in writing of any change in information provided [in her license application or license renewal application under subsection (A)(1)(a) through (d)].

A.A.C. R4-28-301(A)(1)(a) requires license applicants and license renewal applicants to disclose on their applications any “[c]onviction for a misdemeanor or felony, or deferral of a judgment or sentencing for a misdemeanor or felony.” The Department established that Respondent failed to disclose March 13, 2018 conviction for disorderly conduct within 10 days, in violation of A.A.C. R4-28-301(F). Therefore, the Department established cause to discipline Respondent’s salesperson’s license under A.R.S. § 32-2153(A)(3). The Department established that Respondent was convicted of a crime involving violence against another person. Therefore, the Department established cause to discipline Respondent’s salesperson’s license under A.R.S. § 32-2153(B)(10). 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.

As noted above, the Department established that Respondent committed two infractions by violating A.R.S. § 32-2153(B)(10) when she was convicted of a crime involving violence against her fiancé and by violating A.R.S. § 32- 2153(A)(3) by failing to disclose the conviction to the Department within days. The fact that this is the second time that Respondent failed to timely disclose a criminal conviction to the Department and her failure to appear at the hearing that was continued at her request are considered as factors in aggravation of the penalty. RECOMMENDED ORDER In view of the foregoing, IT IS ORDERED that, within 30 days of the effective date of the final order in this matter, Respondent Jennifer Del Castillo shall pay a civil penalty to the Department in the amount of $1,500.00 (One Thousand Five Hundred Dollars). IT IS FURTHER ORDERED that, if Respondent fails to timely pay the civil penalty, the Department shall suspend Respondent’s Real Estate Salesperson License number SA573576000 until she pays the full amount of the civil penalty. 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, September 19, 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] The Department’s Exhibit 4. [5] See the Department’s Exhibit 5. [6] See the Department’s Exhibit 6. [7] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [8] See A.R.S. § 32-2153. [9] 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). [10] 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