ALJDEC decisions subject to certification as final

21F-354-REL · Department of Real Estate · 2021-10-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

NELSON, ANGELINA, holder of License No. SA533276000,

Respondent

No. 21F-354-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 07, 2021 at 1:00 PM.

APPEARANCES: Assistant Attorney General Holly Wan, Esq. appeared on behalf of the Arizona Department of Real Estate (“Department”) with Linda Bevins as a witness. Angelina Nelson (“Respondent”) appeared on her own behalf. Susan Hack observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Commissioner of the Department.

FINDINGS OF FACT

Procedure and Background

The Department first issued Petitioner’s Real Estate Salesperson License No SA533276000 on March 01, 2002. The license is currently active and set to expire on May 31, 2022. The license has not previously been disciplined by the Department.

On or about May 04, 2021, the Department received a complaint against Respondent’s license. The complaint alleged that on May 02, 2021, Respondent, whose license went inactive on November 30, 2020, brought a client to tour a new residential construction in Mesa, AZ.

On or about May 10, 2021, the Department opened an investigation regarding the confirmable facts in the complaint and issued a letter of inquiry to an alleged witness, Kathleen Lanci. The Department asked Ms. Lanci to confirm whether Respondent entered into a Purchase Contract to purchase a home on the date in question, and asked the witness to respond no later than May 21, 2021.

On May 10, 2021, the Department issued an Investigation Notification Letter to Respondent regarding the complaint, and asked Respondent to provide a response no later than May 21, 2021.

On or about May 15, 2021, the Department received Ms. Lanci’s response whereby she provided the following information, in pertinent part(s):

On May 02, 2021, Respondent brought two clients, a married couple, to the Toll Brothers at Cadence office to tour model homes.

Respondent asked if she could fill out a registration form for her clients, but did not provide her license number because she “didn’t remember it,” nor did Respondent sign it. Respondent offered that she was “between companies right now.” Staff was given Respondent’s HomeSmart business card.

Staff looked up Respondent’s license information on the Department’s website and learned that her license was inactive.

Respondent did not return to the Cadence office after touring the model homes.

Ms. Lanci called the broker listed on Respondent’s business card, Stephanie Sandoval, to notify her that “an old agent was still using her info.”

Ms. Lanci also called Respondent to confirm her inactive license status, to which Respondent replied that she planned to return to HomeSmart and that her clients were relatives “so it [is] okay.”

On May 11, 2021, the Department received Respondent’s electronic response whereby she provided the following information, in pertinent part(s):

Respondent accompanied family to view new homes at Cadence. Upon arrival Respondent identified herself as a licensed real estate agent, provided her business card, and reported her inactive license status.

Respondent was asked to fill out a registration form and complied with the request.

Neither Respondent nor her attending family members signed a Purchase Contract agreement.

On May 19, 2021, because the response was not signed pursuant to Ariz. Admin. Code R4-28-301(G), the Department asked Respondent to submit a timely compliant response, which was subsequently received by the Department.

In Respondent’s final submission to the Department she noted that her relatives she accompanied at Cadence were her daughter and son-in-law, and that her daughter had given staff her business card. Respondent denied any wrongdoing.

Per the Notice of Hearing, the Department referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on October 07, 2021, to determine whether grounds exist for the Department to revoke or suspend Respondent’s Real Estate Salesperson’s License No SA533276000, and also whether grounds exist for the Department to impose a civil penalty not to exceed $1,000.00 per violation pursuant to Ariz. Rev. Stat. § 32-2160.01.

Hearing Evidence

At the hearing, Respondent testified on her own behalf. The Department called Linda Bevins as a witness and submitted Exhibits 1-10 into the record. The Notice of Hearing was also admitted into the record as its own exhibit. The substantive facts of record are as follows:

Between December 01, 2020, and May 05, 2021, Respondent was without a brokerage.

On May 02, 2021, Respondent took her daughter and son-in-law to tour Cadence model homes in Mesa, AZ. Upon arrival Respondent filled out a client registration form, albeit incompletely, and identified Ms. Sandoval as her broker. Respondent also provided her HomeSmart business card to staff, which did not indicate, informally or otherwise, that she was inactive, no longer with the brokerage, or was unavailable at the address listed on the card.

On May 06, 2021, Respondent was hired as a real estate salesperson with HomeSmart.

In closing, Respondent argued that the events of May 02, 2021, amounted to nothing more than a misunderstanding, and offered that she had not intended to behave or appear deceitful in her dealings that day. Respondent opined that the Department was attempting to punish her for being honest.

In closing, the Department argued that Respondent’s conduct violated three statutory provisions and warranted a $3,000.00 civil penalty.

CONCLUSIONS OF LAW

The Department is the duly constituted authority for licensing and regulating real estate salespersons and brokers in Arizona. The Commissioner of the Department has jurisdiction over Petitioner and the subject matter in this case.

This hearing was conducted in accordance with Ariz. Rev. Stat. § 41-1092.01 et seq. The Department bears the burden of proof to establish cause to discipline Respondent’s license and factors in aggravation of any penalty to be imposed by a preponderance of the evidence.

The standard of proof on all issues is by a preponderance of the evidence. A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Ariz. Rev. Stat. § 32-2153(A)(4) provides that the commissioner may suspend or revoke a license, or issue a letter of concern to a licensee, if it appears that the holder, within five years immediately preceding, in the performance of or attempt to perform acts by the license has knowingly authorized or aided in the distribution or circulation of any material false or misleading statement or representation concerning the licensee’s business.

Ariz. Rev. Stat. § 32-2153(B)(3) and (B)(6) provide that the commissioner may suspend or revoke a license, or issue a letter of concern to a licensee, if it appears that the holder or applicant has made any substantial misrepresentation or engaged in the business of real estate without holding a license.

Ariz. Rev. Stat. § 32-2160.01 grants the commissioner jurisdiction to assess a civil penalty of up to one thousand dollars ($1,000.00) per violation.

The Department’s concerns in the underlying areas are legitimate.

Here, the record reflects that on May 02, 2021 Respondent’s license was not active. Nonetheless, Respondent filled out a client registration card and identified Ms. Sandoval as her broker. Notably, the business card Respondent provided held her out to be a real estate salesperson for HomeSmart; none of the inapplicable contact information on the card had been crossed out. The Department has established violations of Ariz. Rev. Stat. §§ 32-2153(A)(4), 32-2153(B)(3) and (B)(6) by a preponderance of the evidence.

Respondent’s conduct was neither reasonable nor appropriate under the circumstances. The record is devoid of a sufficient justification or excuse to mitigate Respondent’s statutory violations.

However, given the fact that Respondent’s license has not been previously disciplined, the Department’s attempt to levy the harshest civil penalty permitted by statute against Respondent is not supported by the evidence of record. The Department offered no justification for the imposition of a $3,000.00 civil penalty in this matter.

Based on the relevant and credible evidence of record, the Administrative Law Judge must find that grounds exist for the Department to take disciplinary action against Respondent’s real estate salesperson license and impose a penalty against Respondent.

RECOMMENDED ORDER

Based on the foregoing,

it is recommended that the Department issue a Letter of Concern against Angela Nelson, holder of Real Estate Salesperson License No SA533276000.

it is FURTHER recommended that, within 30-days of the effective date of the Final Order in this matter, Respondent Angela Nelson shall pay an amended civil penalty of three hundred dollars ($300.00) to the Department in certified funds.

IT IS FURTHER ORDERED that, if Respondent fails to timely pay the civil penalty, the Department shall suspend Respondent Angela Nelson’s Real Estate Salesperson License number SA533276000 until she pays the full amount of the civil penalty.

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, October 25, 2021.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate