ALJDEC decisions subject to certification as final

20F-237-REL · Department of Real Estate · 2020-11-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

Shattuck, John G., holder of License No. BR110915000,

Respondent.

No. 20F-237-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 5, 2020

APPEARANCES: Assistant Attorney General Holly Wan appeared on behalf of the Arizona Department of Real Estate. Respondent John G. Shattuck appeared on behalf of himself.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

On September 29, 2020, the Arizona Department of Real Estate (Department) issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. on November 5, 2020, at the Office of Administrative Hearings in Phoenix, Arizona.

The Department alleged in the Notice of Hearing that Respondent John G. Shattuck violated Ariz. Rev. Stat. 32-2153(A)(14) and Ariz. Rev. Stat. 32-2153(B)(6).

On August 4, 1995, the Department issued real estate broker license number BR110915000 to John G. Shattuck. The license will expire on August 31, 2021.

On March 1, 2018, the Department issued license number SE110915000 to Mr. Shattuck as a self-employed broker (Brokerage). Mr. Shattuck does not use a “doing business as” name and is the designated broker for the Brokerage. The license will expire on August 31, 2021.

On August 31, 2019, both licenses # BR110915000 and #SE110915000 expired.

In September 2019, Mr. Shattuck submitted a late renewal application for license # BR110915000.

On September 27, 2019, the Department renewed license # BR110915000 on “Inactive” status because Mr. Shattuck failed to renew his Brokerage license, #SE110915000.

On January15, 2020, Mr. Shattuck submitted a late renewal application for license #SE110915000. Mr. Shattuck included a Statement of Unlawful License Activity (Statement) with the renewal application that provided, “In September 2019, I renewed my [broker] license 3 days late. I fully believed that my status was Active and received nothing to indicate otherwise. I was informed of the inactive status by a title company last week.”

Mr. Shattuck also wrote in the Statement, “The only activity I have been involved in which requires a license is a [sic] active contract representing a buyer in the purchase of a small residential property, it is currently in escrow. I have received no compensation.”

The Department placed both license # BR110915000 and #SE110915000 on “Active” status effective January 13, 2020.

At hearing, Mr. Shattuck stated that he did not dispute the factual allegations listed in the Department’s September 29, 2020 Notice of Hearing. The Department submitted exhibits 1 through 7.

Mr. Shattuck contended that the civil penalty is too severe. Mr. Shattuck argued that he should not be penalized because he was not aware that he submitted his renewal late.

The Department contended that Mr. Shattuck should have known of his responsibilities because he was a licensed real estate salesperson. The Department contended that the civil penalty is appropriate because Mr. Shattuck conducted real estate activities while his license was expired and failed to timely pay the fee to renew his Brokerage license.

CONCLUSIONS OF LAW

The Department bears the burden of persuasion to show that Mr. Shattuck violated the statutes and rules as alleged. 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).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona; see also State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Substantial evidence is evidence which would permit a reasonable person to” conclude that the proposed finding should be substantiated. See Sierra Club – Grand Canyon Chapter v. Ariz. Corp. Comm’n, 237 Ariz. 568, ¶ 22, 354 P.3d 1127 (2015 App.)(citing In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d 704 (1999).

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

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:

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14. Failed to pay to the commissioner the renewal fee as specified in this chapter promptly and before the time specified.

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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:

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6. Engaged in the business of a real estate, cemetery or membership camping broker or real estate, cemetery or membership camping salesperson without holding a license as prescribed in this chapter.

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A licensee who violates the applicable statutes or rules is subject to a civil penalty of up to $1,000 for each violation. Ariz. Rev. Stat § 32-2160.01.

8. The Department established by a preponderance of the evidence that

Mr. Shattuck failed to timely pay his renewal fee, which is a violation Ariz. Rev. Stat § 32-2153(A)(14).

9. The Department established by a preponderance of the evidence that

Mr. Shattuck conducted real estate activities while his Brokerage license was expired and his Broker license as on inactive status, which is a violation Ariz. Rev. Stat § 32-2153(B)(6).

10. Considering the facts and circumstances of this matter, a civil penalty of $1,000 is appropriate.

ORDER

IT IS ORDERED that within fifteen days of the final Order in this matter, John G. Shattuck must pay to the Department of Real Estate a civil penalty of $1,000.

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, November 25, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate