ALJDEC decisions subject to certification as final

21F-165-REL · Department of Real Estate · 2021-07-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

AUSTIN POLLARD, holder of License No. SA678122000,

Respondent

No. 21F-165-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 20, 2021 and June 28, 2021

APPEARANCES: Respondent Austin Pollard appeared via Google Meet. Assistant Attorney General Holly Wan, Esq. represented the Arizona Department of Real Estate and appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

On May 1, 2018, the Arizona Department of Real Estate (“Department”) issued Real Estate Salesperson License No. SA678122000 to Austin Pollard (“Respondent”). The current licensure expires on May 31, 2022.

On May 11, 2020, the Arizona Department of Public Safety notified the Department that Respondent’s Fingerprint Clearance Card had been modified to a Driving Restricted Level One Fingerprint Clearance Card due to Respondent’s arrest for two counts Misdemeanor DUI and two counts Misdemeanor Extreme DUI on or about May 8, 2020.

The Department conducted an investigation and found that on August 26, 2020, Respondent pleaded guilty to, and was convicted of, one count of DUI, a Class 1 Misdemeanor, in Avondale City Court, Avondale, Arizona, case number TR2020000251.

On December 4, 2020, the Department sent a letter to Respondent through the Department’s message center requiring that he provide a written response and supporting documentation regarding the conviction by no later than December 14, 2020.

On December 15, 2020, the Department sent a second letter to Respondent via certified mail and through the message center, requiring a written response with supporting documentation regarding the conviction by no later than December 21, 2020.

At hearing, the Department presented the testimony of Bret Biesenthal, Senior Investigator for the Department, and submitted seven exhibits into the record.

Mr. Biesenthal testified to the above timeline and facts. Mr. Biesenthal also testified that Respondent failed to inform the Department of the conviction for DUI within ten days as required by statute.

Further, Mr. Biesenthal testified that Respondent failed to respond to both letters sent by the Department. In addition, Mr. Biesenthal testified that it appeared from the Department’s message center that Respondent had received and at least opened the correspondence from December 4, 2020 on December 15, 2020.

The Department argued that based upon the violations, a $2,000.00 civil penalty was appropriate, along with issuing Respondent a two-year provisional license.

Respondent testified that when he was charged with DUI, he was in a “bad situation” as he and his wife were going through a divorce. He further testified that he no longer drinks and that he has a full-time job with EOS fitness. Respondent also testified that he and one semester remaining until he graduated college, and that he was formerly in the Marine Corps.

Respondent also testified that he does not plan on renewing his salespersons license once it expires, and that he has only sold one house (to a friend) while licensed, and would sometimes help his mother (who is also a real estate agent) with her clients.

Respondent testified that on August 30, 2020, he mailed the required disclosure documents to the Department, but only via regular first class mail, thus he had no proof that it was sent or received.

As to the other two letters sent by the Board in December 2020, Respondent testified that he did not receive the mailed copies nor did he receive the electronic copies as his physical address and electronic mail address had changed. Respondent testified that he properly updated both addresses with the Department and argued that there must have been an error with the Department’s website.

Further, Respondent testified that despite the message center displaying the message as read on December 15, 2020, he claimed this to be an impossibility as he was either in the airport or on an airplane at 12:37 p.m. when the message was “read”.

Finally, Respondent testified that the proposed $2,000.00 penalty was excessive and had spent approximately $35,000.00 last year in dealing with his DUI and divorce proceedings.

CONCLUSIONS OF LAW

Pursuant to A.R.S. Title 32, Chapter 20, the Commissioner has jurisdiction over Respondent and the subject matter in this case. The Arizona legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. Pursuant to A.R.S. §32-2153, the Commissioner has authority to deny, suspend, or revoke the real estate license of a broker or salesperson. Pursuant to A.R.S. §32-2160.01, the Commissioner has authority to assess a civil penalty up to $1,000.00 per violation of the real estate laws and rules.

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 preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The evidence of record established that Respondent failed to disclose the conviction to the Department within ten days in violation of A.A.C. R4-28-303(D) and A.A.C. R4-28-301(F). It was certainly understandable, given the COVID-19 pandemic, that Respondent would have mailed the information to the Department rather than hand-delivering the same, however, without any further proof of completing the same, the Department has met its burden of proof in this issue as it had not timely received the disclosure.

The evidence of record established that Respondent failed to respond to both the December 4, 2020 and December 15, 2020 correspondence. The Department’s message center shows that the December 4, 2020 correspondence was received and opened, and that the Department did not receive anything from Respondent in response. At hearing, while Respondent testified that he was travelling on December 15, 2020, he failed to provide the tribunal with any proof of the same. Thus, Respondent is in violation of A.R.S. §32-2153(B)(11).

In totality, the evidence of record established that grounds exist to discipline Respondent’s salesperson’s license pursuant to A.R.S. §32-2153(A)(3).

Based on Respondent’s candor in his testimony and the monetary expense he has incurred already through the cost of the DUI proceedings, the Administrative Law Judge concludes that a $500.00 civil penalty is appropriate.

The Administrative Law Judge also concludes that a six-month provisional real estate salesperson’s license be issued to Respondent. Because of Respondent’s testimony that he was not acting as a full-time real estate salesperson and as well as his testimony that he does not wish to continue in this profession, the Administrative Law Judge believed that this penalty will properly protect the public.

RECOMMENDED ORDER

Based upon the foregoing,

IT IS RECOMMENDED that within thirty (30) days of the effective date of the above Final Order entered in this matter, Respondent shall pay to the Department a civil penalty in the amount of $500.00, and such payment shall be made by cashier’s check or money order made payable to the Department.

IT IS FURTHER RECOMMENDED in the event that Respondent fails to pay the penalty, the Department take action to impose further discipline upon proper notice to Respondent.

IT IS FURTHER RECOMMENDED that within thirty (30) days of the effective date of the above Final Order entered in this matter, Respondent be issued a six-month provisional real estate salesperson’s license.

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, July 13, 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