ALJDEC decisions subject to certification as final

19F-297-REL · Department of Real Estate · 2019-08-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 29, 2019, at 1:00 p.m. APPEARANCES: The Arizona Department of Real Estate (“the Department”) was represented by Deian Ousounov, Esq., Assistant Attorney General; Ashley Marie McAward (“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 May 8, 2018, the Department issued Real Estate Salesperson License No. SA678571000 to Respondent. That license will expired on May 31, 2020.[1] 3. On or about June 18, 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)(25), 32-2153(B)(7), and 32-2153(B)(10). 4. The Department’s Notice of Hearing and Complaint also set an evidentiary hearing before the Office of Administrative Hearings (“OAH”), an independent state agency, on July 29, 2019, at 1:00 p.m. The Department mailed the Notice of Hearing and Complaint via first class and registered mail to Respondent at her residential address of record. 5. On July 29, 2019, a hearing was held. The Department submitted nine exhibits and presented the testimony of its Senior Investigator, Wayne L. Jackson. 6. Respondent did not request to appear telephonically at the hearing or that the hearing be continued. Although the start of the duly noticed hearing was delayed approximately fifteen minutes, Respondent did not appear, personally or through an attorney. Consequently, Respondent did not present any evidence to defend her real estate salesperson’s license. Hearing Evidence 7. According to the Department’s records, Respondent was employed as a salesperson by Keller Williams Realty Biltmore Partners on or about October 30, 2018.[2] 8. On or about January 4, 2019, Complainant’s broker, Scott Kiburz of Keller Williams Realty,[3] informed the Department that Respondent had forged checks drawn on her employer’s account, in relevant part as follows: On Wednesday, January 2nd, our office became aware that our ‘front desk’ admin [personnel] had ‘potentially’ embezzled money from our company.

Checks were written to her, false closing information was included about the checks, my signature [was] forged, and she was found on security camera depositing one check, and the second check was deposited into her credit union account. The total amount of the two checks was approximately $4600.00.[4]

9. On or about January 4, 2019, Mr. Kiburz sent a second email to the Department that provided additional details about Respondent’s malfeasance, in relevant part as follows: [Respondent] was hired as a front desk person for our office approximately October 29th, 2018.

On Wednesday, January 2nd, 2019, we discovered that we had two fraudulent checks made [payable] to her in Early December, 2018. . . . Our leadership team confronted [Respondent] later that afternoon about the checks, my false signature, and who cashed them; [Respondent] denied any involvement.

We then engaged our office Bank, Midfirst Bank on Camelback. Liane, the branch manager, took down the detailed information and had their head of security research the deposit. It was clear on security tape that [Respondent] was the one cashing the check, provided a thumb print verification, and [Driver’s] License number.[5]

Mr. Kiburz disclosed that Keller Williams intended to sever its employment relationship with Respondent and report her malfeasance to the police. 10. On January 15, 2019, Mr. Jackson on behalf of the Department sent a letter to Respondent, informing her of Mr. Kiburz’ complaint that she had forged his signature on two checks without his authorization and cashed the checks, which totaled $4,600.00. Mr. Jackson requested that Respondent provide a written narrative statement in response to Mr. Kiburz’ complaint.[6] 11. On or about January 22, 2019, Respondent provided a signed statement in response to Mr. Kiburz’ complaint, in relevant part as follows: The referenced allegations are true and I would like to formally apologize for my actions. I was experiencing a financial hardship and resorted to making a horrible and wrong decision.

I am truly sorry for what I have done.

I hope that in admitting my guilt, I am able to work out a repayment plan to make things right.[7]

12. The Department obtained the two checks that Respondent had forged, which were both drawn on her employer’s account and made payable to her and showed her thumbprint on them, and submitted them into evidence.[8] 13. On February 20, 2019, the Department summarily suspended Respondent’s salesperson’s license under A.R.S. §§ 32-2153 and 32-2157, finding that the public health, safety, and welfare required emergency action.[9] Respondent did not request a hearing on the summary suspension. 14. Mr. Jackson testified that the Department was very concerned about Respondent’s unauthorized forgery of Mr. Kiburz’ signature on two checks made payable to her and her cashing the checks due to her claimed personal financial hardship.. Fortunately, the checks were not drawn on a client’s account. 15. Mr. Jackson testified that he did not know whether the police or the bank were taking any action against Respondent, but that the lack of a criminal action against Respondent would not alleviate the Department’s concern. The Department believed that Respondent’s unauthorized conversion of her employer’s monies due to her personal financial problems indicated that she presented a risk of harm to the public if she kept her real estate salesperson’s license. CONCLUSIONS OF LAW The Notice of Hearing that the Department mailed to Respondent at her residential address of record was reasonable and Respondent is deemed to have received notice of the hearing.[10] Pursuant to A.R.S. § 32-2153(E), the lapsing or suspension of a license by operation of law or by order or decision of the Commissioner or a court of law or the voluntary surrender of a license by a licensee shall not deprive the Commissioner of the jurisdiction to proceed with any investigation of or action or disciplinary proceeding against the licensee. The Department has jurisdiction over Respondent and the subject matter in this case.[11] 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.[12] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[13] 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: . . . .

25. Signed the name of another person on any document or form without the express written consent of the person. . . . .

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

7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character. . . . .

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.

The Department established that Respondent forged Mr. Kiburz’ signature on a check drawn on her employer Keller Williams’ account to steal or convert $4,600.00 of her employer’s money to her own use. The Department thereby established cause to discipline Respondent’s salesperson’s license under A.R.S. §§ 32-2153(A)(25), 32-2153(B)(7), and 32-2153(B)(10). Respondent’s serious violations and failure to appear for the duly noticed hearing indicate that at this time, she cannot be regulated. RECOMMENDED ORDER In view of the foregoing, IT IS ORDERED affirming the summary suspension of Respondent Ashley Marie McAward’s Real Estate Salesperson’s License Number SA678571000. IT IS FURTHER ORDERED revoking Respondent Ashley Marie McAward’s Real Estate Salesperson’s License Number SA678571000. 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, August 12, 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 Exhibit 1. [3] The Department issued broker license BR552246000 to Mr. Kiburz on August 24, 2007. That license is set to expire on August 31, 2019. See Exhibit 2. [4] Exhibit 3. [5] Exhibit 3. [6] See Exhibit 5. [7] Exhibit 6. [8] See Exhibit 8. [9] Exhibit 6. [10] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [11] See A.R.S. § 32-2153. [12] 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). [13] 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