ALJDEC decisions subject to certification as final

21F-331-REL · Department of Real Estate · 2021-11-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

JENNIFER DEL CASTILLO, holder of License No. SA573576000,

Respondent

No. 21F-331-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 21, 2021

APPEARANCES: The Arizona Department of Real Estate was represented by Assistant Attorney General James Rolstead. Respondent Jennifer Del Castillo appeared on her own behalf.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

Since March 20, 2006, Respondent Jennifer Del Castillo has held Real Estate Salesperson License SA573576000 issued by the Arizona Department of Real Estate (Department); the license is set to expire on March 31, 2022.

On or about March 31, 2021, the Arizona Department of Public Safety sent Respondent a letter indicating she had been issued a Driving Restricted Level One Fingerprint Clearance Card after a state and federal level criminal history records check indicated that she had been arrested and/or fingerprinted for two counts of Extreme Driving Under the Influence and two counts of Driving Under the Influence on or about September 17, 2020, in Goodyear, Arizona. The Department was also set a copy of the letter.

On March 18, 2021, Respondent pleaded guilty, and was convicted of, Extreme Driving Under the Influence, a class 1 misdemeanor, in the Goodyear Municipal Court of Maricopa County in Docket No. TR2020-00405. Respondent was sentenced to 45 days confinement with 1 day time served and 31 days suspended upon successful completion of SAS/Counseling.

On or about April 19, 2021, the Department issued a letter to Respondent indicating that the Department had initiated an investigation based on the receipt of information indicating she had been convicted of Extreme DUI, a class 1 misdemeanor, which she had failed to disclose to the Department in writing within ten business days, as required.

On or about April 20, 2021, Respondent wrote to the Department through the Department’s message center the following:

Hello, my attorney is still, working on my case also,I did receive my fingerprint clearance card. I think they sent a copy as well.

All errors in original.

On or about April 25, 2021, Respondent wrote a letter to the Department that provided as follows:

In September of Last year I was pulled over By the goodyear police. I imediately hired an attorney. I called adre the following day and explained my situation. I spoke with “Ann” who told me I did not have to report it until my case was settled. I settled my case, disclosed got my fingerprint clearance card. this is a first offense. Also was disclosed twice, please call me or my attorney anytime if you have any questions.

All errors in original.

At the hearing, Respondent testified that she reported her arrest to the Department within a day or two and believed that was sufficient disclosure. Respondent stated she was extremely emotional at the time and was unaware that she needed to make a disclosure after her guilty plea.

The Department’s position was that Respondent was in violation of applicable statue and rule, as was noticed through her acts and conduct of failure to disclose a conviction. The Department also established that Respondent had previously been disciplined by the Department for a failure to disclose a conviction to the Department within ten business days, thereby contradicting Respondent’s testimony that she did not know when she needed to report her conviction. The Department requested that a monetary penalty in the amount of $1,000.00 be assessed against Respondent.

CONCLUSIONS OF LAW

The Department bears the responsibility to protect the public through its enforcement of licensing statutes. This matter lies within its jurisdiction.

The Department bears the burden of proof to establish cause to discipline Respondent’s license and any factors in aggravation of any penalty to be imposed 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 “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”

A.R.S. § 32-2153 provides as follows:

Grounds for denial, suspension or revocation of licenses . . .

A. The commissioner may suspend or revoke a license . . . issued under this chapter if it appears that the holder . . . , within five years immediately preceding, in the performance of or attempt to perform any acts authorized by the license or by this chapter, has: . . . .

3. Disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner.

A.A.C. R4-28-303(D) provides, in pertinent part, as follows:

D. A salesperson or broker shall notify the Department in writing within 10 days of any change in the individual’s personal information or qualifications. The salesperson or broker shall include in the notice the individual’s name, signature, license number, and:

1. If disclosing information required under R4-28-301, such as a criminal conviction, adverse judgment, denial or restriction of or disciplinary action against a professional or occupational license, or recovery fund payment on the person’s behalf, a written statement providing detailed information and, upon request by the Department, the supporting documentation identified in R4-28-301(A)(2) . . . .

A.A.C. R4-28-301(F) provides as follows:

Each salesperson, broker, school owner, director, administrator, and instructor shall, within 10 days of each occurrence, notify the Commissioner in writing of any change in information provided under subsection (A)(1)(a) through (d) and provide documentation listed in subsection (A)(2).

A.A.C. R4-28-301(A)(1)(a) through (d) provides, in pertinent part, as follows:

A. An applicant for any Department-issued license or license renewal including, if an entity, any officer, director, member, manager, partner, owner, trust beneficiary holding 10% or more beneficial interest, stockholder owning 10% or more stock, or other person exercising control of the entity, shall submit the following information to the Department:

1. A signed original licensure or renewal questionnaire, as applicable, disclosing any:

a. Conviction for a misdemeanor or felony, or deferral of a judgment or sentencing for a misdemeanor or felony;

b. Order, judgment, or adverse decision entered against the applicant involving fraud or dishonesty, or involving the conduct of any business or transaction in real estate, cemetery property, time-share intervals, membership camping contracts, or campgrounds;

c. Restriction, suspension, or revocation of a professional or occupational license, or registration currently or previously held by the applicant in any state, district, or possession of the United States or under authority of any federal or state agency; any civil penalty imposed under the license, or any denial of a license; or

d. Order, judgment, or decree permanently or temporarily enjoining the applicant from engaging in or continuing any conduct or practice in connection with the sale or purchase of real estate or cemetery property, time-share intervals, membership camping contracts, campgrounds, securities, or involving consumer fraud or violation of the racketeering laws by the applicant, or payment from a recovery fund or fund of last resort due to the applicant’s action or inaction.

A.R.S § 32-2160-01 provides that the commissioner may assess a penalty of up to $1,000.00 per violation.

The hearing record established that Respondent failed to timely disclose a conviction. The Department thereby established cause to discipline Respondent’s real estate licensure pursuant to A.R.S. § 32-2153(A) and A.A.C. R4-28-303(D) and R4-28-301(F).

The Department has been charged with protecting the public and consumers who deal with licensees. The Department’s concern in this case was understandable in that the Department relies on licensees to be knowledgeable and understand applicable laws and administrative rules and provide notifications to the Department when required by the law and administrative rules.

Based on the hearing record, the Administrative Law Judge concludes that the Department’s determination to assess a monetary penalty as discipline was appropriate based on Respondent’s failures to timely report her conviction. Based on the evidence, the Administrative Law Judge concludes that Respondent’s license should be disciplined through a monetary penalty of $1,000.00 pursuant to Arizona Revised Statutes § 32-2160.01.

RECOMMENDED ORDER

The Commissioner shall assess a $1,000.00 monetary penalty as discipline against Respondent’s License SA573576000.

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, November 10, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate

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-137160-45720000