FINACT20F-REC1920002-ADH-FinalAgencyAction-0036.pdf

20F-REC1920002-ADH · Arizona State Department of Housing · 2019-11-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Lenox Johnson, No. 20F-REC1920002-ADH

James Nys, ADMINISTRATIVE LAW JUDGE DECISION Bernard Schulz, Complainants, v.

Yvette Sarma Reckards dba Yvette's Home Sales, License No. 8660, Class D-12, Respondent.

HEARING: September 16, 2019 APPEARANCES: The Arizona Department of Housing was represented by its Compliance Administrator Donna Grant and Assistant Attorney General Valerie Marciano. Complainants Lenox Johnson, James Nys, and Bernard Schulz appeared telephonically; Mr. Schulz with the assistance of his wife, Caroline Schulz. Respondent Yvette Sarma Reckards, in custody, failed to appear telephonically. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _____________________________________________________________________ FINDINGS OF FACT 1. On February 1, 2019, the Department issued its Findings of Public Emergency and Order of Summary Suspension for License No. 8660, Class D-12, held by Yvette Sarma Reckards, dba as Yvette’s Home Sales. 2. The above-named Complainants were participants in a consolidated administrative hearing regarding their respective transactions with Respondent. 3. Following that administrative hearing and consideration of the hearing evidence presented therein in those consolidated matters, in an Administrative Law Judge Decision dated April 29, 2019, the Administrative Law Judge affirmed the Summary Suspension and recommended that on the effective date of the Department’s

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 final order, that Respondent’s License No. 8660, Class D-12 be revoked.1 See Exhibit A. 4. On May 16, 2019, the Department issued its final order, accepting the

Administrative Law Judge’s decision; the effective date of the final order is the date

when service is complete.2 Id.

5. The Department proceeded to review the Complainants’ claims regarding

verification and possible recovery from the Department’s Consumer Recovery Fund

(Fund). See Exhibit B.

6. The Department advised the parties regarding its Verification of their

respective Complaints.

7. By letter dated May 29, 2019, Complainant Lenox Johnson was advised

that the Department verified his complaint regarding non-receipt of two home

warranties (Department determined amount of $660.00.)3 See Exhibit C.

8. By letter dated February 27, 2019, Complainant James Nys was advised

that the Department verified his complaint regarding cleaning costs, unpaid property

taxes, and utility costs (Department determined amount of $1,924.32). See Exhibit D.

9. By letter dated April 24, 2019, Complainant Bernard Schulz was advised that the Department verified his complaint regarding unpaid sales taxes (Department determined amount of $329.77). See Exhibit E. 10. By Notice of Hearing dated July 26, 2019, the Department notified the parties of the recovery fund hearing and the parties’ opportunity to present evidence. 11. At the time of the hearing, Respondent failed to conference in to the hearing and, thus failed to present any evidence regarding the Department’s determined Fund payout amounts.

1 Respondent initially appeared while in custody, telephonically, at that administrative hearing but she hung up at some point during the hearing. The final order was provided to Respondent by certified mail. Id. The hearing record does not contain documentation of service. The Tribunal presumes that service was completed and that Respondent’s license is revoked. The Department’s Verification form appears to indicate that Respondent was responsible for a resolution of this item. However, based on the manner in which the form presents the complaints, i.e., the labeling of the complaint items, the form also appears to indicate that the item was corrected. 12. Regarding the Lenox Johnson case, the Department presented evidence of its verifications of his complaints and, thus, of Respondent’s violations of Arizona Revised Statutes (A.R.S.) §§ 41-4030(D), 41-4030(Q), 41-4030(N), and 41-4030(P).

13. Regarding the James Nys case, the Department presented evidence of its

verifications of his complaints and, thus, Respondent’s violations of A.R.S. §§ 41-

4030(A)(3), 41-4030(Q), 41-4030(N), and 41-4030(P).

14. Regarding the Bernard Schulz case, the Department presented evidence

of its verifications of his complaints and, thus, Respondent’s violations of A.R.S. §§ 41-

4030(A)(3), 41-4030(Q), 41-4030(N), and 41-4030(P).

15. The hearing record demonstrated that Respondent violated A.R.S. §§ 41-

4030(A)(3), 42-4030(D), 41-4030(Q), 41-4030(N), and 41-4030(P).

16. Pursuant to A.R.S. § 41-4043(A) and (B), Complainants are persons

entitled to make a claim against Respondent as they were harmed by the actions,

inactions, and violations of applicable statutes by Respondent.

17. These violations are cause for the Department to suspend Respondent’s

License No. 8660, Class D-12, pursuant to A.R.S. § 41-4043(A) and (B).

CONCLUSIONS OF LAW 1. This matter lies within the Department’s jurisdiction. 2. The burden of proof at an administrative hearing is generally upon the person who brings the action. Utah Construction Company v. Berg et al., 68 Ariz. 285, 205 P.2d 367 (1949); A.A.C. R2-19-119(B). Further, the standard of proof at hearing is by preponderance of the evidence. Smith v. Ariz. Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); A.A.C. R2-19-119(A). The Notice of Hearing regarding Fund payouts provides for a party contesting the departmentally-determined amounts to demonstrate the determined amount is inaccurate, unreasonable or improper. In this instance, Respondent bears the burden of showing, by a preponderance of the evidence, that the determined Fund payout amounts are not accurate, reasonable or proper. 3. Under the facts and circumstances of these consolidated claims, the Administrative Law Judge concludes that the Department is authorized to, and shall, award the determined Fund payments to these named Complainants pursuant to A.R.S. § 41-4043(D): Complainant Lenox Johnson in the amount of $660.00; Complainant James Nys in the amount of $1,924.32; and, Complainant Bernard Schulz

in the amount of $329.77.

4. The Administrative Law Judge further concludes, pursuant to A.R.S. § 41-

4043(D), that until Respondent has paid in full the amounts determined, plus interest at

the rate of ten percent per year, that Respondent’s License No. 8660, Class D-12 shall

remain in suspended status.

RECOMMENDED ORDER

The Director of the Department of Housing shall make payment from the

Consumer Recovery Fund to Complainant Lenox Johnson in the amount of $660.00.

The Director of the Department of Housing shall make payment from the

Consumer Recovery Fund to Complainant James Nys in the amount of $1,924.32.

The Director of the Department of Housing shall make payment from the Consumer Recovery Fund to Complainant Bernard Schulz in the amount of $329.77. Respondent’s License No. 8660, Class D-12 shall remain in a suspended status until Respondent has paid in full the Fund amounts determined, plus interest at the rate of ten percent per 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 will be 5 days from the date of that certification. Done this day, October 8, 2019 /s/ Kay Abramsohn Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile October 8, 2019 to:

Carol Ditmore, Director Arizona Department of Housing 1110 W. Washington St, Ste 310 Phoenix, AZ 85007