ALJDEC decisions subject to certification as final

20F-147-REL · Department of Real Estate · 2020-06-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

PADILLA, ALFRED, holder of License No. SA644129000,

Respondent.

No. 20F-147-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 23, 2020

APPEARANCES: Alfred Padilla on his own behalf; Holly Wan Esq. for the Department of Real Estate

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On May 8, 2020, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing setting the above-captioned matter for hearing on June 23, 2020 at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice of Hearing provided that hearing was being held to determine whether grounds exist to revoke Respondent Alfred Padilla Jr.’s real estate salesperson’s license.

Through the Notice of Hearing the Department alleged that Mr. Padilla violated Ariz. Rev. Stat. sections 32-2153(A)(3) and (B)(11), and Ariz. Admin. Code section R4-28-301(G).

Mr. Padilla appeared on his own behalf, but presented no substantive testimony. The Department presented the testimony of senior investigator Linda Bevins.

Mr. Padilla was first licensed on June 15, 2012, and his license will expire on June 30, 2020.

The Department received a complaint against Mr. Padilla that was reviewed by Ms. Bevins who determined that the complaint raised issues within the Department’s jurisdiction.

Through a letter dated August 20, 2019, the Department informed Mr. Padilla that he was required to file with the Department a written narrative describing his services as the listing agent and person supervising the work at the property at issue. The Department also informed Mr. Padilla that he could provide any documentation supporting his position in the matter. The Department informed Mr. Padilla that his response was due no later than August 30, 2019.

Mr. Padilla did not respond to the Department’s letter of August 20, 2019.

The Department sent by certified mail to Mr. Padilla a letter dated September 11, 2019 in which it informed him that it had not received a response to the letter of August 20, 2019, and in which it requested that he send a written statement regarding the matter and all supporting documentation. The letter set a deadline of September 20, 2019. Through the letter, the Department informed Mr. Padilla that a failure to respond to the Department during an investigation constituted unprofessional conduct under Ariz. Rev. Stat. section 32-2153(B)(11) and that his failure to respond could result in disciplinary action against his license.

Mr. Padilla did not respond to the Department’s letter of September 11, 2019.

On September 24, 2019, the Department issued to Mr. Padilla a subpoena requiring him to appear at the Department’s offices on October 3, 2019 at 3:00 p.m. The subpoena was served on Mr. Padilla by certified mail.

Mr. Padilla did not comply with the Department’s subpoena.

The matter was then referred to the Department’s Enforcement and Compliance Division.

Through an email dated October 11, 2019, a Department settlement officer informed Mr. Padilla that he had left a voicemail about the pending investigation and requested that Mr. Padilla respond by 5:00 p.m. October 18, 2019. The email also informed Mr. Padilla that if he did not respond, the Department would disposition the matter following the applicable policies and procedures.

Through an email to Mr. Padilla dated October 15, 2019, the settlement officer acknowledged that the two had spoken that morning and again advised Mr. Padilla that his response was due by 5:00 p.m. on October 18, 2019.

Through an email dated October 18, 2019, Mr. Padilla requested an extension until the following week to provide the Department with the required information.

The Department typically does not extend the deadlines by which licensees are directed to provide information.

Mr. Padilla did not provide the Department with the required information by the deadline of 5:00 p.m. on October 18, 2019.

Through an email dated October 21, 2019, the settlement officer informed Mr. Padilla that because he had not submitted a timely response, the matter had been referred to the Arizona Attorney General’s Office for review and possible revocation of his license.

There is no evidence in the record to show that Mr. Padilla provided the Department with the required information at any time.

Ms. Bevins testified to the effect that the Department considers Mr. Padilla’s failure to respond to its repeated requests for information as a serious matter, and that license holders must be amenable to the Department’s regulation in order for the Department to fulfil its role in protecting the public. Ms. Bevins’s opinion was that Mr. Padilla’s failure to respond to the Department shows a lack of respect on his part.

Although he did not provide any substantive testimony, Mr. Padilla did state that he does have respect for the Department.

The Department requests that Mr. Padilla’s license be revoked.

CONCLUSIONS OF LAW

The Department bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(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 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).

Ariz. Rev. Stat. section 32-2153 provides in pertinent part:

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:

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[(A)(3)] Disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner.

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[(B)(11)] Failed to respond in the course of an investigation or audit by providing documents or written statements.

The Ariz. Admin. Code section R4-28-301(G) provides that:

A licensee shall, within 14 calendar days or a later date determined by the Department, respond to a request from the Commissioner or the Commissioner’s representative for any documents, electronic files, written statements, or other information required as a part of a complaint investigation, regardless of whether the licensee is named in the complaint.

Mr. Padilla violated Ariz. Rev. Stat. section 32-1154(B)(11) because he failed to respond to the Department’s investigation by providing a written statement as requested. Although none of the Department’s requests for a response provided Mr. Padilla with fourteen days to respond, because he never responded this is also a violation of Ariz. Admin. Code section R4-28-301(G).

Because Mr. Padilla has violated sections 32-1154(B)(11) and R4-280301(G), he has also violated section 32-1154(A)(3).

Because Mr. Padilla has violated Ariz. Rev. Stat. section 32-1154, the Department has authority to suspend or revoke his license, which authority will remain in effect even if his license were to lapse or expire. See Ariz. Rev. Stat. § 32-1154(E).

In determining the appropriate discipline, the pertinent consideration is the nature and number of prohibited acts, not the number of statutes or rules that have been violated.

In this matter, Mr. Padilla failed to provide any substantive response to the Department’s four written requests for information. He also failed to comply with the Department’s subpoena, which is a factor in aggravation. Mr. Padilla offered no testimony or other evidence to show that his failure to respond should be excused or that there were any factors in mitigation to suggest that a penalty other than revocation is appropriate. Ms. Bevins testified as to the need for license holders to comply with the Department’s rules in order for the Department to carry out its role of protecting the public.

Consequently, Mr. Padilla’s license should be revoked.

RECOMMENDED ORDER

IT IS ORDERED that Alfred Padilla’s license number SA644129000 is 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 is five days after the date of that certification.

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-137160-45720000Done this day, June 30, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

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-137160-45720000