ALJDEC decisions subject to certification as final

20F-356-2-REL · Department of Real Estate · 2021-10-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

MICHELE SIMONIS, holder of License No. BR535092000,

Respondent

No. 20F-356-2-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 21, 2021

APPEARANCES: The Arizona Department of Real Estate was represented by Assistant Attorney General Holly Wan, Esq. Respondent Michele Simonis was represented by Kimberly Eckert, Esq.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

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FINDINGS OF FACT

On December 14, 2010, the Arizona Department of Real Estate (Department) issued real estate broker license number BR535092000 to Respondent Michele Simonis. Respondent’s license was scheduled to expire on December 31, 2022.

Pursuant to A.R.S. § 32-2130(A), brokers were required to complete 30 hours of continuing education every two years when they renew their license.

The Department licensed all real estate schools and approved all courses taught by the schools. Per A.A.C. R4-28-404(D), real estate schools are required to maintain records of attendance for all courses for a period of five years.

Respondent’s license was scheduled to renew on December 31, 2016 and again on December 31, 2018.

In December 2016, Respondent entered into the Department’s database, 10 continuing education courses she claimed to have timely completed.

In December 2018, Respondent entered into the Department’s database, 12 continuing education courses she claimed to have timely completed.

Following a Complaint, the Department began to investigate the courses which Respondent claimed to have completed and found that for the relevant time period, Respondent only attended 4 of the 22 claimed classes.

On March 20, 2020, the Department sent Respondent a letter requesting that she provide information regarding the classes she claimed she attended as well as any proof of certificates of completion and payment records.

On March 30, 2020, Respondent responded to the Department’s request for information. Respondent stated that she did not retain the certificates once she entered the information on the Department’s website, and was not aware she was required to retain copies of the same.

On April 27, 2021, the Department issued a Notice of Hearing and Complaint setting a hearing for June 1, 2021, at the Office of Administrative Hearings, an independent State agency.

After several continuances, a hearing was held on September 21, 2021.

The Department presented the testimony of Linda Bevins and offered 14 exhibits into evidence.

Ms. Bevins was the Senior Investigator for the Department and investigated this matter.

Ms. Bevins testified that she contacted the Arizona School of Real Estate & Business (ASREB) to inquire as to whether Respondent completed the reported classes in 2016 through 2018. Ms. Bevins testified ASREB informed her that Respondent only attended three online courses in March 2017.

Ms. Bevins testified further that she received a response from Marsha Schaeffer which confirmed that on August 10, 2017, Respondent attended “Last Agent Standing – Contract Law edition” and provided the sign-in sheet for the same.

Ms. Bevins also testified that she contacted three other course providers, namely, Advanced Real Estate Investment Solutions, Inc., Training Cove, and Real Estate Career Development and all replied that they could not find any records of Respondent attending courses either in person or online.

Ms. Bevins testified that since March 30, 2021, the Department has not received any additional information from Respondent supporting her position that she attended the courses.

The Department argued that it was seeking to suspend Respondent’s license for 90 days, and upon the expiration of the suspension, that a two-year provisional license be issued and that Respondent pay a $6,000.00 civil penalty.

Respondent testified on her own behalf and offered five exhibits into evidence.

Respondent testified that she became a real estate agent in 2001 and a real estate broker in 2010. She testified that she was passionate about helping people and also became an instructor to help others in the profession.

Respondent testified that she also taught classes and audited many classes which put her well above the Department’s 30-hour requirement.

Further, Respondent testified that generally, once she attended an online course she would input the information on the Department’s website, and for in person classes, she would wait a day or two until she got back to the office to enter the same. Respondent testified that once she uploaded the information into the Department’s website, she believed that it was not a requirement to retain any further records.

Respondent testified that upon receiving the letter from the Department in March 2020, she attempted to find any information supporting her claim that she attended the courses. Respondent testified that she tried to go through old bank accounts and credit card accounts to try to find proof of payment to no avail. She also testified that some courses were free or only cost $5.00 for the purchase of a lunch.

In addition, Respondent testified that she would not be able to enter the course number into the Department’s website without actually attending the course.

Respondent presented the deposition of Michaela Hopkins as well as letters from Bryan Johnson, Clinton Frost, Kelly Gallagher, Amanda Robertson, and Laurie Marlowe all of which stated that they attended courses with Respondent.

Respondent argued that the letters which the Department received all contained a misspelling of her name, or that the schools themselves were not complying with the Department’s requirement of recordkeeping. Because of this, Respondent argued that the Department did not meet its burden of proof and the case should be dismissed.

CONCLUSIONS OF LAW

The Department has jurisdiction to consider the Department’s claim that Respondent failed to complete the required courses for 2016-2018.

The Department bears the burden of proof to establish that Respondent failed to complete the courses 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 “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

The legislature established the Department to protect “the public health, safety and welfare by regulating the sale of real estate . . . .” A real estate salesperson’s license is a privilege, not a right. The Department has jurisdiction to deny, suspend or revoke a broker or salesperson’s license under A.R.S. § 32-2153.

The Tribunal finds that the Department met its burden of proof in demonstrating that Respondent failed to take the courses. While there may have been a misspelling of Respondent’s first name, her last name was certainly unique enough for the schools to adequately search its records. Further, Respondent did not present credible evidence to demonstrate that she attended the classes. The letters provided did not include sufficient detail to demonstrate which course and when Respondent attended. Further, all letters contained the same or very similar language almost as if one person drafted the letter and the people simply affixed their signatures to the same. In addition, Ms. Hopkins deposition likewise demonstrated no specifics as to the class(es) they attended together. Finally, which there may not be a statute or rule requiring a licensee/broker to maintain the certificates of completion, this does not alleviate Respondent from providing proof of attendance, in case of an audit or complaint such as this one. Perhaps the schools in question were not in compliance with the Department’s rules, however, Respondent should not have solely relied on the school then to keep the proper records.

Therefore based on this record, the Department has established grounds exist to deny, suspend or revoke Respondent’s license pursuant to A.R.S. §§ 32-2130(A), 32- 2153(A)(3), (B)(1), (B)(3), (B)(7), and A.A.C. R4-28-402(A)(3).

RECOMMENDED ORDER

Based on the foregoing, it recommended that the Department suspend Respondent’s license #BR535092000 for 60 days, and that upon re-instatement that Respondent be issued a two-year provisional license, and be assessed a $6,000.00 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 will be five days from the date of that certification.

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-137160-45720000Done this day, October 4, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

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-137160-45720000