ALJDEC decisions subject to certification as final

19F-120-REL-RES · Department of Real Estate · 2019-08-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 30, 2019 APPEARANCES: Respondent William Lane did not appear. The Arizona Department of Real Estate was represented by Assistant Attorney General Deian Ousounov. ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ FINDINGS OF FACT 1. The Arizona Department of Real Estate (Department) is the duly constituted authority for licensing and regulating the practice of real estate in the State of Arizona. 2. On or about October 19, 2015, the Department issued an original real estate salesperson’s license number SA660936000 to William Lane (Respondent). Respondent’s license is inactive and will expire on October 31, 2019. 3. On or about August 21, 2018, the Department learned that Respondent was convicted of a misdemeanor traffic offense on January 8, 2018. 4. On or about August 23, 2018, Department Investigator, Tom Adams (Mr. Adams) sent Respondent and his broker, Lorence Zimtbaum (Mr. Zimtbaum), a letter requesting a written response by September 6, 2018. 5. On or about August 30, 2018, the Department received certified copies of conviction from the Prescott Justice/City Court. The certified copies of conviction confirmed that Respondent was convicted on January 1, 2018, of going 100 miles per hour in a mile per hour speed zone. 6. Respondent failed to respond to the Department’s request to provide additional documents or written statements. 7. On or about May 31, 2018, the Arizona Department of Public Safety sent the Department a letter and advised that Respondent’s Fingerprint Clearance Card was suspended due to his arrest for Felony Aggravated Assault involving domestic violence on May 30 2018. 8. On or about September 7, 2018, Mr. Adams sent Respondent a letter through the Department’s message center. Mr. Adams requested Respondent to respond, in writing, regarding the May 30, 2018 arrest. That response was due by September 20, 2018. 9. On or about October 1, 2018, the Maricopa County Superior Court provided the Department with a copy of Respondent’s sentencing documents. Respondent pled guilty to and was convicted of Disorderly Conduct, a class 1 misdemeanor and Domestic Violence offense, on September 27, 2018. Respondent was sentenced to one year of supervised probation. 10. Respondent never responded to any of the Department’s requests for additional documents and statements. 11. At the time of the hearing, the Department had no communication from Respondent. 12. The Department argued that Respondent’s conduct constituted violations of A.R.S. § 32-2153(A)(3);[1] A.R.S. § 32- 2153(B)(10); A.R.S. § 32-2153(B)(11);[2] A.A.C. R4-28-301(F);[3] and A.A.C. R4-28-303(D)[4] and warranted discipline. 13. Respondent did not present any evidence or legal argument to refute or rebut the evidence or legal arguments presented by the Department in this matter. 14. At hearing, Bret Biesenthal (Mr. Biesenthal), Senior Investigator with the Department, testified that Respondent failed to report either of his convictions to the Department within the required 10 days. He stated that he contacted Mr. Zimtbaum, Respondent’s broker, regarding Respondent’s whereabouts. Mr. Biesenthal testified that Mr. Zimtbaum responded to him and indicated that he would contact Respondent. Mr. Biesenthal did not hear back from Mr. Zimtbaum. 15. Mr. Biesenthal stated that he attempted to contact Respondent regarding these convictions and was unsuccessful. Mr. Biesenthal stated that failure to disclose these convictions was a concern because it is hard for the Department to regulate license holders if they fail to communicate with the Department and it is a violation of the Department’s regulation. Mr. Biesenthal testified that the Department was requesting a 60 day suspension of Respondent’s license and a civil penalty of $1000.00. CONCLUSIONS OF LAW 1. Pursuant to A.R.S. Title 32, Chapter 20, the Department has the authority and duty to regulate all persons engaged in the business of, or acting in the capacity of, a real estate broker or salesperson, and to enforce all statutes, rules, and regulations relating to real estate. Because this matter is disciplinary in nature, the Department bears the burden of proof. The standard of proof on all issues is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). It is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). 3. The Department established, by a preponderance of the evidence, that Respondent’s conviction of Disorderly Conduct, a class 1 misdemeanor and Domestic Violence offense, constituted a violation of A.R.S. § 32- 2153(B)(10). 4. The Department established, by a preponderance of the evidence, that Respondent’s failure to respond to the Department’s requests for additional information regarding his convictions constituted a violation of A.R.S. § 32-2153(B)(11). 5. The Department established, by a preponderance of the evidence, that Respondent failed to notify the Department of his convictions within days in violation of A.A.C. R4-28-301(F) and A.A.C. R4-28-303(D). 6. Pursuant to A.R.S. § 32-2153(A)(3), the Commissioner may suspend or revoke a license if the licensee has “disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner.” Based on the above-found violation of the Department’s statutes and regulations, Respondent also violated A.R.S. § 32- 2153(A)(3). 7. Respondent’s failure to report the convictions as required, to respond to any communications from the Department, or to appear at the hearing and provide any defense or explanation for the violations demonstrates that Respondent is unable to be regulated at this time. ORDER Based on the foregoing, it is recommended that on the effective date of the Order entered in this matter, Respondent’s real estate salesperson’s license shall be 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 will be five (5) days from the date of that certification. Done this day, August 19, 2019.

/s/ Antara Nath Rivera Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] A.R.S. § 32-2153(A) provides, in pertinent part, as follows:

A. The commissioner may suspend or revoke a license, deny the issuance of a license, issue a letter of concern to a licensee, issue a provisional license or deny the renewal or the right of renewal of a license issued under this chapter if it appears that the holder or applicant, 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.

[2] A.R.S. § 32-2153(B) provides, in pertinent part, as follows:

B. The commissioner may suspend or revoke a license, deny the issuance of a license, issue a letter of concern to a licensee, issue a provisional license or deny the renewal or the right of renewal of a license issued under this chapter when it appears that the holder or applicant 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. 11. Failed to respond in the course of an investigation or audit by providing documents or written statements.

[3] A.A.C. R4-28-301(D) provides, in pertinent part, as follows:

F. 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 under subsection (A)(1)(a) through (d) and provide documentation listed in subsection (A)(2).

[4] A.A.C. R4-28-303(D) provides, in pertinent part, as follows:

D. 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, adverse judgment, denial or restriction of or disciplinary action against a professional or occupational license, or recovery fund payment on the person’s behalf, a written statement providing detailed information and, upon request by the Department, the supporting documentation identified in R4-28-301(A)(2) . . . .

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