ALJDEC decisions subject to certification as final

21F-334-REL-RHG · Department of Real Estate · 2022-05-25

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-RHG

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 5, 2022

APPEARANCES: Respondent Devon Dray did not appear. The Arizona Department of Real Estate was represented by Assistant Attorney General James Rolstead.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

The Arizona Department of Real Estate (Department) is the duly constituted authority for licensing and regulating the practice of real estate in the State of Arizona.

On or about October 7, 1988, the Department issued real estate salesperson license number SA034123000 to Devon Dray (Respondent). The license is inactive and scheduled to expire on October 31, 2022.

On or about November 3, 2021, following an administrative hearing on allegations that Respondent failed to disclose a misdemeanor conviction within 10 days as required, the Commissioner of the Department adopted the recommended decision of the Administrative Law Judge and ordered that Respondent pay the Department a civil penalty of $1,000.00 within 60 days.

Respondent failed to pay the civil penalty by the deadline of January 3, 2022.

On or about January 4, 2022, the Department sent Respondent a Notice of Non-Compliance with Commissioner’s Order through the Department’s message center and by certified mail. The Department provided Respondent with an extended deadline of January 17, 2022, to provide the payment of the civil penalty.

Respondent failed to pay the civil penalty by the extended deadline.

On or about January 19, 2022, the Department left Respondent a voicemail providing him with a second extended deadline of January 31, 2022, to pay the civil penalty.

On or about January 27, 2022, Respondent replied to the Notice of Non-Compliance with Commissioner’s Order sent through the Department’s message center asking if he could set up a payment plan. Department staff responded that the Department did not accept payment plans.

Respondent did not pay the $1,000.00 civil penalty by January 31, 2022.

On or about January 31, 2022, the United States Postal Service returned the certified mailing including the Notice of Non-Compliance with Commissioner’s Order to the Department because it was unclaimed.

On or about March 15, 2022, the Department issued a Notice of Hearing and Complaint to Respondent indicating a hearing would be held on May 5, 2022, at the Office of Administrative Hearings. The Notice of Hearing and Complaint was mailed and emailed to Respondent at his address and email address of record.

Respondent did not appear at the hearing.

Lauren Abril, Settlement Officer with the Department, testified as to the Department’s actions in this matter. Ms. Abril indicated that on January 27, 2022, she replied to Respondent’s message through the message center advising him that he had until January 31, 2022, to pay the civil penalty. Ms. Abril noted that Respondent did not read her response until February 8, 2022.

CONCLUSIONS OF LAW

Pursuant to A.R.S. Title 32, Chapter 20, the Department has the authority and duty to regulate all persons engaged in the business of, or acting in the capacity of, a real estate broker or salesperson, and to enforce all statutes, rules, and regulations relating to real estate.

Because this matter is disciplinary in nature, the Department bears the burden of proof. The standard of proof on all issues is by a preponderance of the evidence. See A.A.C. R2-19-119.

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). 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.” Black’s Law Dictionary 1182 (6th ed. 1990).

Pursuant to A.R.S. §32-2153(A)(24), the Commissioner may suspend or revoke a license if the licensee violated any condition or term of a commissioner’s order. The evidence of record established that Respondent failed to pay the $1,000.00 civil penalty resulting from the prior hearing as ordered. Therefore, the preponderance of the evidence establishes that Respondent violated A.R.S. § 32-2153(A)(24).

Respondent’s failure to timely pay the civil penalty, to timely respond to the Department’s communications, and to appear at the hearing in this matter demonstrate that he is unable to be regulated at this time.

ORDER

Based on the foregoing, it is recommended that on the effective date of the Order entered in this matter, Respondent’s real estate salesperson’s license shall be revoked.

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 (5) days from the date of that certification.

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-137160-45720000Done this day, May 25, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate

By Miranda Alvarez

Legal Secretary -54864001

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-137160-45720000