ALJDEC decisions subject to certification as final
21F-217-REL · Department of Real Estate · 2021-08-23
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Real Estate License of:
MEINCKE, JANA LEIGH, holder of License No. SA673972000,
Respondent.
No. 21F-217-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: August 05, 2021 at 1:00 PM.
APPEARANCES: Assistant Attorney General James Rolestead, Esq. appeared on behalf of the Arizona Department of Real Estate with Steve Hooper as a witness. No appearance(s) by or on behalf of Jana Leigh Meincke (“Respondent”). Susan Hack observed.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
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After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Commissioner of the Department.
FINDINGS OF FACT
Background and Procedure
On August 25, 2017, the Department issued Real Estate Salesperson License No. SA673972000 to Respondent. The license is scheduled to expire on August 31, 2021.
On January 25, 2021, in Case No. 2:18-CR-00702-SPL-1 before the United States District Court in the State of Arizona, Respondent was sentenced by plea agreement to 21 months incarceration, 36 months of supervised release, and ordered to pay $2,211,304.00 in restitution for violating 18 USC § 371; Conspiracy to violate 26 USC§ 7206(2) – Aiding, Assisting, or Advising Taxpayers in Preparing and Filing Fraudulent Tax Returns, a Class D felony.
Respondent admitted to, at a minimum, knowingly and willfully operating no less than 14 tax businesses whereby she provided aid, assistance, counsel, and advice in the preparation and filing of fraudulent tax returns between April 2013 and September 2017 that she knew to be materially false.
On February 02, 2021, Respondent’s former Broker informed the Department that Respondent had been convicted of a felony and was sentenced to prison. As a result, the Department opened an investigation to determine the confirmable facts surrounding Respondent’s Disciplinary Actions Disclosure.
On February 19, 2021, the Department issued an Order of Summary Suspension and Notice of Opportunity for Hearing regarding Respondent’s license.
On May 03, 2021, the Department issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. on June 23, 2021, at the Office of Administrative Hearings (“OAH”), an independent state agency. Per the Notice of Hearing the issue to be determined is whether grounds exist for the Department to revoke Respondent’s real estate salesperson’s license.
Hearing Evidence
The Department presented the testimony of senior investigator Steve Hooper (“Investigator Hooper”) and submitted Exhibits 1-6 into the record. The Notice of Hearing was also admitted into the record. Although the undersigned allowed a brief 15-minute grace period, Respondent failed to appear. The substantive facts are as follows:
Respondent is currently serving her sentence at an undisclosed location within the Federal Bureau of Prisons. She is not currently eligible for parole.
In closing, the Department argued that revocation of Respondent’s license was appropriate because, by and through his actions, Respondent had shown that she was not a person of good moral character. The Department further argued that Respondent had proven herself to be untrustworthy, as she had abused her license to violate federal law, and had also been dishonest during a subsequent investigation into his conduct.
CONCLUSIONS OF LAW
Because at all times relevant to this matter Respondent was subject to the provisions of Title 32, Chapter 20, Arizona Revised Statutes (“Ariz. Rev. Stat.”), the Commissioner of the Department has jurisdiction over Respondent and the subject matter in this case.
The case was properly brought before OAH for adjudication pursuant to Title 2, Chapter 19, Article 1, of the Arizona Administrative Code (“Ariz. Admin. Code”).
Pursuant to Ariz. Rev. Stat. § 41-1092.07(G)(2) and Ariz. Admin. Code 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.
A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” It is “[e]vidence which is of greater weight or more convincing than the 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.”
Ariz. Rev. Stat. § 32-2153(B) provides, in pertinent parts, as follows:
The commissioner may suspend or revoke a license ... deny the renewal or the right of renewal of a license issued under this chapter when it appears that the holder or applicant has:
2. Been convicted in a court of competent jurisdiction in this or any other state of a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense.
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10. Violated any federal or state law, regulation or rule that relates to real estate or securities or that involves forgery, theft, extortion, fraud, substantial misrepresentation, dishonest dealings or violence against another person or failure to deal fairly with any party to a transaction that materially and adversely affected the transaction. This paragraph applies equally to violations of which the licensee was convicted in any lawful federal or state tribunal and to any admissions made in any settlement agreement by the licensee to violations.
The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. Therefore, Department has discretion to revoke a license under Ariz. Rev. Stat. § 32-2153(B) as a real estate salesperson’s license is a privilege, not a right.
The issues in this case, in light of Respondent’s criminal conviction(s) and current incarceration status, are whether Respondent may be statutorily permitted to hold an active license and whether she can be trusted at this time to be responsible in her dealings with competitors and the public overall if the Department agrees not to revoke her real estate salesperson license.
Here, the material facts are not in dispute.
It is undisputed that on January 25, 2021, Respondent was convicted by plea agreement for violating 18 USC § 371.
It is further undisputed that Respondent is currently imprisoned for her felony crime(s).
After closely scrutinizing the underlying conduct which resulted in Respondent’s criminal conviction, as well as the conviction itself, this Tribunal holds that the evidence of record establishes by a preponderance of the evidence that the revocation of Respondent’s real estate salesperson’s license is warranted because she poses a significant threat to the public. It is also the position of this Tribunal that Respondent’s criminal conviction evinces her inability to adhere to the law and/or be regulated by the Department at this time. Notably, the Tribunal finds that Respondent’s failure to apprise the Department of her charge(s) or plea agreement are factors in aggravation.
Because the Department has established violations of Ariz. Rev. Stat. §§ 32-2153(B)(2) and 32-2153(B)(10) by a preponderance of the evidence, the Department has also established grounds to take disciplinary action, up to and including revocation, against Respondent’s real estate salesperson’s license.
RECOMMENDED ORDER
Based upon the foregoing,
IT IS RECOMMENDED that upon the effective date of the Final Order entered in this matter the Commissioner of the Department revoke Respondent Jana Leigh Meincke’s Real Estate Salesperson’s License No. SA673972000.
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.
Done this day, August 23, 2021.
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate