ALJDEC decisions subject to certification as final

19F-319-REL · Department of Real Estate · 2019-10-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 30, 2019 APPEARANCES: Nathan Trotter on his own behalf; Deian Ousounov, Esq. for the Department of Real Estate ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On August 7, 2019, 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. September 30, 2019, at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing and Complaint provide that hearing was being held to determine whether grounds exist to impose a civil penalty against Respondent Nathan Trotter. Mr. Trotter holds license number SA656745000. 3. On July 13, 2017, Mr. Trotter pleaded guilty to, and was convicted of driving under the influence of intoxicating liquor or drugs, a misdemeanor. 4. The Department alleged that Mr. Trotter had failed to report the misdemeanor conviction within ten days after that conviction was entered. At the hearing Mr. Trotter acknowledged that he had failed to report the conviction within ten days as alleged by the Department. 5. Mr. Trotter reported the misdemeanor conviction on February 27, 2019, when he filed an application to renew his license. 6. Wayne L. Jackson, a senior investigator with the Department, testified that he has been involved in many matters in which the licensee failed to report a conviction within ten days and only did so upon submission of an application for renewal of the license. 7. The Department requests that a $1000 civil penalty be imposed and that Mr. Trotter be required to attend six hours of continuing education in addition to that which is normally required. 8. Mr. Jackson testified that this requested discipline is consistent with what he has seen in other matters. 9. Mr. Trotter testified that his DUI conviction had been a catalyst for change in his life and that he was looking for leniency with respect to the Department’s proposed penalties. CONCLUSIONS OF LAW 1. The Department bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G); Ariz. Admin. Code § R2-19-119(B). 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). 3. 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). 4. Mr. Trotter was required to report his misdemeanor conviction within ten days of that conviction. Ariz. Admin. Code §§ 4-28- 301(F) and 4-28-303(D). Because he failed to report his conviction in a timely manner, Mr. Trotter violated Ariz. Rev. Stat. section 32-2153(A)(3). 5. The Department has authority to assess against Mr. Trotter a civil penalty of up to $1000. Ariz. Rev. Stat. § 32-2160.01. The Department presented no legal authority or legal argument showing that it has the authority to require a licensee to attend continuing education in excess of that which is required under the applicable rules. 6. Mr. Trotter accepted responsibility for his failure to timely report his conviction and the Department presented no evidence of factors in aggravation or legal argument to show that Mr. Trotter should be assessed the maximum penalty for the proven violation. 7. Considering the facts and circumstances of this matter, the Administrative Law Judge concludes that a $500 civil penalty is appropriate. ORDER IT IS ORDERED that Nathan Trotter must pay to the Department a civil penalty of $ 500 within 30 days of the effective date of the Order entered in this matter. 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.

Done this day, October 10, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

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