ALJDEC decisions subject to certification as final

21F-334-REL · Department of Real Estate · 2021-11-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

DEVON DRAY,

holder of License No. SA034123000,

Respondent.

No. 21F-334-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 14, 2021

APPEARANCES: Licensee Devon Dray (“Respondent”) failed to appear. The Arizona Department of Real Estate (“Department”) was represented by Assistant Attorney General James Rolstead.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

Since October 7, 1988, Respondent has held Real Estate Salesperson License SA034123000; the license is set to expire on October 31, 2022. According to the public record, as Respondent is not known to be currently employed and, thus, under the supervision of a designated broker; Respondent’s license is inactive.

Upon investigation by the Department, the Department determined that Respondent had failed to report a misdemeanor conviction in writing within ten days as required by Arizona Administrative Code (“A.A.C.”) R4-28-303(D) and R4-28-301(F).

On April 27, 2021, Respondent pleaded no contest to, and was convicted of, Interfering with Judicial Proceedings in Surprise City Court, Surprise Arizona, in Case No. CM2020-01334. The Court had sentenced Respondent to 30-days in jail and one year of probation, with jail time to be suspended upon successful completion of probation.

On May 19, 2021, the Department noticed Respondent, through the Department’s message center, regarding the need to provide a written statement about the offense and about his failure to have disclosed the conviction.

Respondent’s written statement was dated May 31, 2021. Respondent noted that he had taken the plea based on his failure to comply with a court order and to “put an end to this [ridiculous] case of a scorned woman.”

August 26, 2021, the Department issued its Notice of Hearing and Complaint (“Notice”) by certified mail and by electronic mail (email). The Notice specified that hearing would take place on October 14, 2021.

At the time of the hearing, Respondent failed to appear; he had not provided a phone number and he did not call in at the time of the hearing or at any time during the duration of hearing which was conducted. Thus, Respondent failed to provide any credible evidence in mitigation to the alleged violation.

The Department’s position is that Respondent is in violation of applicable statue and rule, as was noticed through his acts and conduct of failure to disclose a conviction. The Department argued that the evidence demonstrated multiple grounds on which to discipline Respondent’s license. 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.”

Arizona Revised Statutes (“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)(3) requires that licensees shall, within 10 days, notify the commissioner regarding changes in personal information or qualifications.

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 under A.R.S. § 32-2153(A) and A.A.C. R4-28-303(D) and R4-28-301(F).

The Department is charged with protecting the public and consumers who deal with licensees. The Department’s concern in this case is understandable in that the Department relies on licensees to be knowledgeable and understand applicable laws and administrative rules and notify the Department when required by the law and administrative rules. Respondent’s actions in failing to disclose results in the Department’s concern as to whether Respondent, as a licensee, is able to be regulated.

Based on the hearing record, the Administrative Law Judge concludes that the Department’s determination to assess a monetary penalty as discipline is appropriate based on this licensee’s actions and failures to act. 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 SA034123000.

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, November 1, 2021.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate