ALJDEC decisions subject to certification as final

20F-026-REL · Department of Real Estate · 2020-04-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

RICHMAN, GREGORY S., holder of License No. BR658466000,

Respondent.

No. 20F-026-REL

ADMINISTRATIVE LAW JUDGE DECISION

TELEPHONIC HEARING: March 27, 2020

APPEARANCES: Gregory S. Richman (Respondent) appeared on his own behalf. Assistant Attorney General Deanie Reh represented the Arizona Department of Real Estate (Department).

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

Since June 1, 2015, Respondent has held Real Estate Salesperson License SA658466000. Respondent now holds Real Estate Broker License BR658466000; issued on June 10, 2019, the license is set to expire on June 30, 2021.

With his May 30, 2019 Broker Application Form (Application), Respondent submitted a Disciplinary Actions Disclosure statement (Disclosure) dated May 30, 2019.

On that Disclosure, Petitioner answered “NO” to Question #1, regarding whether any professional or occupational license had been denied, suspended, restricted or revoked.

On that Disclosure, Petitioner answered “NO” to Question #2, regarding whether there had been any administrative order or disciplinary action taken by any federal, state, or local regulatory agency against any license.

After receiving an anonymous complaint, the Department discovered that Respondent’s Arizona teaching certificate had been revoked on January 29, 2018 and upon review of the Department’s records, found that Respondent had not disclosed the revocation pursuant to A.A.C. R4-28-303(D) within ten days of that action. Thus, the Department determined that Respondent’s May 30, 2019 Disclosure was not accurate.

By letter dated July 2, 2019, the Department informed Respondent that the teaching certificate had been revoked in January of 2018. The Department requested that Respondent execute a written narrative statement “explaining the failure to disclose disciplinary actions to the Department.”

Respondent’s written narrative, dated July 4, 2019, indicated that while he was a special education teacher a complaint had been made about him, for which no criminal charges were pursued; he noted that the Arizona Department of Education (ADE) had investigated the matter and that he had talked with their investigator “a couple times.” Respondent noted that being arrested for something that he had not done was a “horrible experience” and that, in the aftermath of this experience, he had decided to “forsake teaching and move on” with his life and pursue real estate full-time. Respondent acknowledged that he had received certified mail from ADE and that he had ignored it.

Respondent’s narrative further noted:

I was done speaking with them or communicating with them at all to discuss an incident that didn’t happen. There were no ongoing charges. There was no reason to continue any contact with the Arizona Dept. of Education. I was not negligent by not seeing what the certified mail was about. I had moved on with my life. ...

The Arizona Dept. of Education had all my contact information. I was not aware of their eventual decision to revoke my teaching license. I can not disclose something I’m unaware of. I am very aware of the importance of full disclosure in all matters, not just in real estate. I had no motivation to not disclose this to ADRE. I did not lie on my ADRE application.

I’m happy to do whatever is requested by ADRE to rectify this situation as quickly as possible.

Respondent’s July 4, 2019 written statement is vague with regard to any dates; he stated “I believe the last time I taught was in 2015 (I’m not exactly sure about the dates, but I know I did not possess a real estate license while teaching).”

At hearing, Respondent indicated that he had obtained the real estate salesperson license after he decided not to teach anymore, which was after the alleged incident. At hearing, Respondent indicated he believed that the last time he taught was in early 2014 (i.e., in academic year 2013-2014).

Respondent’s position is that he had answered the Department’s Disclosure form questions truthfully, to the best of his knowledge, because he could not have disclosed something he did not know and that he simply had not known that his teaching certificate had been revoked. Respondent acknowledged that he had ignored the ADE certified mail, explaining that his relationship with ADE was “severed” and he had had no reason to continue any communication or correspondence with ADE.

The Department’s position is that Respondent would be expected to read mail from a licensing authority and that, pursuant to law, he was required to disclose any discipline by another licensing authority and to provide certain information to the Department about the discipline. The Department argued that knowing Respondent “ignored” regulatory mail diminishes the Department’s ability to regulate him as a licensee. The Department is not seeking to revoke Respondent’s license, but requests that Respondent’s license be disciplined, as to the failure to disclose, with a $1,500.00 penalty and a requirement to complete twelve (12) hours of continuing professional education coursework.

CONCLUSIONS OF LAW

The Department bears the responsibility to protect the public through its enforcement of licensing statutes. This matter lies within its jurisdiction.

The Department bears the burden of proof to establish cause to discipline Respondent’s license and any factors in aggravation of any penalty to be imposed by a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”

A.R.S. § 32-2153 provides as follows:

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 of 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:

. . . .

Procured or attempted to procure a license under this chapter for the holder or applicant or another by fraud, misrepresentation or deceit, or by filing an original or renewal application which id false or misleading.

A.A.C. R4-28-301(F) provides that licensees shall, within 10 days, notify the commissioner regarding convictions, judgements, restrictions/discipline or revocations of licensure, as set forth in subsection (A)(1), and shall provide the specific documentation required in Subsection (A)(2).

A.R.S. § 32-2160.01 allows the Department to assess a civil penalty in an amount not to exceed $1,000.00 for each infraction of the applicable laws and administrative rules. In this case, the Department asserts the assessment of penalties in the amount of $1,500.00 for violations of A.R.S. § 32-2153(A) and (B), A.A.C. R4-28-301, and A.A.C. R4-28-303.

The hearing record established that Respondent did not disclose the ADE revocation of his teaching certificate. The Department thereby established cause to discipline Respondent’s real estate licensure under A.R.S. § 32-2153(A) and (B), A.A.C. R4-28-301, and A.A.C. R4-28-303.

The Department is charged with protecting the public and consumers who deal with licensees when it issues licenses. The Department’s concern in this case is understandable in that Respondent acknowledged that he had ignored the ADE certified mail; a certified mailing could only have been an “official” ADE mailing. While Respondent argued that he had “moved on” with his life and simply did not know of the ADE revocation when he filled out the Disclosure form, Respondent had inconsistently indicated to the Department that ADE could have let him know of their revocation action because “[t]he Arizona Dept. of Education had all my contact information.” Given that Respondent also had indicated to the Department “I am very aware of the importance of full disclosure in all matters, not just in real estate,” Respondent’s action in ignoring the ADE certified mail is troubling, resulting in the Department’s concern as to whether Respondent is able to be regulated.

Based on the hearing record, the Administrative Law Judge concludes that the Department’s determination to assess penalties for Respondent’s inaccuracy on the Disclosure form is appropriate and is a minimal disciplinary action intended to underscore the need for licensee responsibility in regard to licensee actions and full disclosure. Based on the evidence, the Administrative Law Judge concludes that Respondent’s license should be disciplined with a modified penalty amount, i.e., penalties in the total amount of $750.00, and a requirement to complete twelve (12) hours of continuing professional education coursework within one year of the Department’s final Order in this matter.

RECOMMENDED ORDER

The Commissioner shall discipline Respondent’s License BR658466000 with an assessment of civil penalties in the total amount of $750.00 to be paid within 3 months and a requirement to complete twelve (12) hours of continuing professional education coursework within one year of the Department’s final Order in this matter, with the proviso that if the penalty is not paid and the coursework is not completed, that Respondent’s License BR658466000 be suspended for one year.

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, April 10, 2020.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate-54864001

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