ALJDEC decisions subject to certification as final

21F-129-REL · Department of Real Estate · 2021-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

Denise Marie Nunley, holder of License No. SA689836000,

Respondent

No. 21F-129-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 31, 2021

APPEARANCES: Respondent Denise Marie Nunley was present and represented by Kimberly A. Eckert. The Arizona Department of Real Estate (Department) was represented by Assistant Attorney General Holly Wan.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

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FINDINGS OF FACT

On or about March 2, 2020, the Department issued Salesperson License No. SA689836000 to Respondent. That license was summarily suspended on December 23, 2020, and expired on March 31, 2021.

On or about September 22, 2020, Respondent entered a guilty plea to a charge of Theft, a class 6 undesignated felony, in Maricopa County Superior Court, Case No. CR2020-128668-001 SE.

On or about September 27, 2020, Respondent submitted a disclosure of her guilty plea to the Department.

On or about November 5, 2020, was convicted of the charge to which she pled guilty. Respondent was sentenced to one year of supervised probation and was ordered to pay fines, fees, and restitution.

On or about December 23, 2020, the Department issued an Order of Summary Suspension and Notice of Opportunity for Hearing (Order). Respondent filed a timely appeal of the Order.

The Department presented evidence that Respondent, together with Alicia Esma Collins, was engaged in an ongoing scheme of more than five years to defraud their employer, Maricopa Community College (MCC). In total, Respondent and Ms. Collins defrauded MCC of $36,576.74. The Department understood the scheme was premised, in part, on Respondent obtaining reimbursement for travel expenses from her book publisher and from MCC. The Department asserted that the financial nature of the crime was especially concerning given that real estate salespersons sometimes deal in very large transactions. The Department argued that Respondent’s conduct constituted violations of A.R.S. § 32-2153(B)(2), (5), (7), and (10) and warranted the revocation of her license.

Respondent clarified that the fraudulent scheme was based more on MCC paying for rooms at conferences that she reserved prior to the conferences, but then did not use because she shared a room with Ms. Collins. Respondent avowed that she repaid MCC restitution of $14,500.00 as directed by the court. Respondent testified that she convinced herself that the scheme was acceptable because she considered the travel allowance from MCC to be part of her compensation package. Respondent also maintained that all of the conduct at issue occurred prior to the issuance of her real estate salesperson license. Respondent stated that her probation officer had indicated to her that she could request to and would likely be granted the early termination of her supervised probation after completing six months successfully.

Respondent provided the testimony of character witnesses including other real estate salespersons she had worked with and a client. All of the witnesses testified that Respondent was a person of good character and should retain her real estate salesperson license.

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).

A.R.S. § 32-2157(C) provides, in pertinent part, as follows:

The department may issue a summary suspension when the department receives notice that a person licensed pursuant to this chapter has been convicted of a felony offense and is currently incarcerated for the conviction, paroled or under the supervision of a parole or community supervision officer or is on probation as a result of the conviction. This subsection does not limit the commissioner's authority to seek revocation of a license or other disciplinary action pursuant to this chapter.

The evidence of record established that Respondent was convicted in a court of competent jurisdiction of Theft, a felony within the meaning of A.R.S. § 32-2153(B)(2). At the time of the summary suspension, Respondent was on probation for that conviction. Therefore, the imposition of a summary suspension was warranted.

While Respondent offered explanations for her conduct, none of those explanations excused the acts. Especially concerning to the undersigned Administrative Law Judge was the ongoing nature of the fraudulent acts and that Respondent was able to convince herself she was not doing anything wrong. Given that real estate salespersons have access to financial information of individuals in the midst of a significant moment in their lives, Respondent’s past acts and explanations prompts concern in how she might act in the future.

Therefore, the Department established it had grounds to revoke Respondent’s license pursuant to A.R.S. § 32-2153(B)(2), (5), (7), and (10).

RECOMMENDED ORDER

IT IS ORDERED upholding the summary suspension issued by the Department.

IT IS FURTHER ORDERED revoking Denise Marie Nunley’s License No. SA689836000.

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.

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-137160-45720000Done this day, April 20, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

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-137160-45720000