ALJDEC decisions subject to certification as final

20F-284-REL · Department of Real Estate · 2020-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

ENOS L. LEWIS, JR., holder of license number SA021071000,

Respondent

No. 20F-284-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 16, 2020

APPEARANCES: The Arizona Department of Real Estate (Department) was represented by Assistant Attorney General Holly Wan who appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

On or about December 26, 1980, the Department issued Salesperson License No. SA021071000 to Enos L. Lewis, Jr. (Respondent). The license was inactive and expires on December 31, 2020.

From November 29, 2011 through February 6, 2020, Respondent was licensed as a salesperson and property manager with West USA Realty, Inc.

Investigation C19-000781

On or about October 24, 2019, the Department received a complaint from Teresa Stokes (Stokes) against Respondent. Stokes alleged that while Respondent was employed with West USA Realty, Inc., he managed a property located at 4620 S. 21st Place, Phoenix, Arizona (Property) from 2011 until May 2019. The Property was owned by Stokes’ father-in-law who was incarcerated during the relevant time period.

Stokes’ compliant alleged that while Respondent was managing the property, he failed to ensure that the property was properly maintained, failed to ensure that rent was timely collected, and failed to evict non-paying tenants.

On October 28, 2019, the Department sent a demand letter to Respondent via regular U.S. mail and the Message Center, requesting that Respondent provide a written statement regarding Stokes’ allegations as well as a complete copy of any and all documents related to the management of the property. The Department requested a response no later than November 7, 2019.

Respondent failed to submit the requested response by November 7, 2019, and the Department sent a second demand letter via certified mail that same date, as well as via the online Message Center on November 8, 2019. The new requested due date for response was November 12, 2019.

Again, Respondent failed to respond, and on November 14, 2019, the Department issued a subpoena to Respondent requesting his appearance for an interview at the Department at 10:00 a.m. on November 21, 2019.

On November 15, 2019, Respondent contacted the Department and was informed of the subpoena. Respondent confirmed he would attend the scheduled interview.

Initially, Respondent did not appear at 10:00 a.m. on November 21, 2019 for the interview. However, Respondent contacted the Department about an hour later, and the interview was re-scheduled for 1:00 p.m. that same day.

At the interview, while Respondent provided some of the required documentation, he failed to provide his written response to Stokes’ complaint. The Department and Respondent agreed that he would provide the written statement and other supplemental documents by November 29, 2019.

During the interview, Respondent stated that he allowed a former tenant’s nephew to stay in the Property while the tenant authorization was in progress, however, a lease was never executed. Further, Respondent informed the Department that the tenant failed to pay rent for a few months and he failed to collect the money or commence eviction measures.

Respondent again failed to provide the requested documents and written statement to the Department by November 29, 2019.

Procedural History

On or about October 29, 2020, the Department issued a Notice of Hearing and Complaint to Respondent setting this matter for hearing on December 16, 2020, detailing the alleged violations of Department statutes.

The Department asserted that Respondent’s conduct constituted violations of A.R.S. § 32-2153(A)(3), A.R.S. § 32-2153(B)(11), and A.A.C. R4-28-1101(A).

The copy of the Notice of Hearing that the Department mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

Respondent failed to submit a response to the underlying complaint.

On December 16, 2020, Respondent failed to appear at the hearing. The tribunal waited 15 minutes beyond the scheduled start time, but no one appeared for Respondent.

Hearing Evidence

Senior Investigator Bret Biesenthal, testified on behalf of the Department. Mr. Biesenthal detailed the procedural history as well as Stokes’ complaint which led to this action.

Mr. Biesenthal also testified that as to the property damage, there was a fire which caused damage to the Property, as well as damage to landscaping on the Property detailed by Stokes’ complaint.

Mr. Biesenthal also testified that on or about November 18, 2019, he received correspondence from Michael P. Hofstetter, who was the Designated Broker from West USA Realty. The correspondence detailed the events and also informed Mr. Biesenthal that Mr. Lewis was terminated from employment and a new Property Manager was appointed to manage the Property.

The Department was seeking a $2,000.00 civil penalty pursuant to A.R.S. § 32-2160.01.

CONCLUSIONS OF LAW

The Commissioner has jurisdiction over Respondent and the subject matter in this case.

Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Department has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119(A).

The evidence of record established that Respondent failed to fully respond to the Department’s requests for response regarding the complaints it received. While Mr. Biesenthal testified that Respondent appeared for the interview (albeit 3 hours late), with some of the requested documentation, Respondent still failed to provide a written statement as to his version on the events even after yet another extension was given.

Respondent’s actions in the case are inexcusable. Based upon the evidence provided, Respondent was to manage the Property owned by an incarcerated individual. Whether, Respondent believed that he could take short-cuts because of this is unknown, because of his lack of cooperation in this matter. The landscaping and fire damage, while maybe not completely foreseeable, may have been easily avoided had Respondent appropriately fulfilled his property management duties. Because of this, Respondent violated A.A.C. R4-28-1101(A). Likewise, Respondent violated A.R.S. § 32-2153(A)(3) and (B)(11), by his failure to fully comply with the Department’s investigation.

The Department established it had grounds to revoke Respondent’s license pursuant to A.R.S. § 32-2153(A)(3), (B)(11) and A.A.C. R4-28-1101(A), as well as issue a civil penalty of $2,000.00 pursuant A.R.S. § 32-2160.01.

RECOMMENDED ORDER

IT IS ORDERED revoking Enos L. Lewis, Jr.’s License No. SA021071000 and issuing a $2,000.00 civil penalty.

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.

-54864001

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-137160-45720000Done this day, December 28, 2020.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate-54864001

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-137160-45720000