ALJDEC decisions subject to certification as final
22F-163-REL · Department of Real Estate · 2023-01-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Real Estate License of:
OZAN BIRAY, holder of license number SA699143000,
Respondent.
No. 22F-163-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 9, 2023.
APPEARANCES: Respondent failed to appear. The Arizona Department of Real Estate was represented by Assistant Attorney General Raya Gardner.
ADMINISTRATIVE LAW JUDGE: Kay Abramsohn
_____________________________________________________________________
FINDINGS OF FACT
On or about November 10, 2021, the Arizona Department of Real Estate (Department) issued real estate salesperson license number SA699143000 to Ozan Biray (Respondent). See Exhibit 1. The license is scheduled to expire on November 30, 2023.
On November 8, 2021, Respondent had executed a Consent Order with the Department, one provision of which required Respondent to comply with all terms and deadlines and acknowledging that a failure to do so might result in the Department taking action to enforce the Consent Order. See Exhibit 2.
By letter dated November 10, 2021, the Department provided specific notice to Respondent regarding the process for compliance with terms of the Consent Order. See Exhibit 3.
One of the Consent Order terms involved submittal, throughout the provisional licensure period, of notarized quarterly affidavits (Affidavit) from the real estate practice monitor. The Consent Order required such affidavits even in the event that Respondent’s license was inactive (due to not being employed with a designated real estate broker).
On the Department’s message board, Respondent received notifications with regard to the need to submit the compliance form/Affidavit. See Exhibit 6.
The Department received an Affidavit dated February 3, 2022. See Exhibit 4. The Department received an Affidavit dated May 18, 2022. See Exhibit 5. The Department did not receive any further Affidavit from Respondent.
By letter dated August 31, 2022, the Department notified Respondent that he was out of compliance with the Consent Order and gave Respondent a deadline [September 15, 2022] by which to make submission of the Affidavit that had been due on August 8, 2022. See Exhibit 7. The letter further notified Respondent that his continued noncompliance might result in disciplinary action. The letter was sent to Respondent by certified mail to his address of record; that certified letter was returned to the Department by the postal service as unclaimed and unable to be forwarded. The letter was also sent to Respondent via electronic mail and through the message board; the Department received no reply or responsive submissions.
The Department further attempted to reach Respondent via telephonic messages; however, Respondent did not respond.
On or about November 21, 2022, the Department issued a Notice of Hearing to Respondent setting this matter for hearing and detailing the alleged violations of Department statutes. The Notice of Hearing was sent to Respondent by certified mail to his address of record and to Respondent’s electronic mail address.
In the Notice of Hearing, the Department asserted that Petitioners’ conduct constituted violations of A.R.S. § 32-2153(A)(3) and (24) and A.A.C. R4-28-303(D)(3).
Respondent did not appear at the hearing.
CONCLUSIONS OF LAW
The Commissioner has jurisdiction over Respondent and the subject matter in this case.
The Notice of Hearing that the Department mailed to Respondent at the addresses of record was reasonable, and Respondent is deemed to have received notice of the hearing. See A.R.S. § 41-1092.04; A.R.S. § 41-1061(A).
Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. 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. See A.A.C. R2-19-119(A).
The evidence in this matter was uncontroverted and established violations of A.R.S. § 32-2153(A)(3) and (24) and A.A.C. R4-28-303(D)(3).
Respondent’s failure to participate in the administrative hearing in this matter established that Respondent cannot be regulated at this time.
Accordingly, the Administrative Law Judge concludes that the Department established grounds to revoke Respondent’s license pursuant to A.R.S. § 32-2153(A)(17) and (24) and A.A.C. R4-28-303(D)(3).
RECOMMENDED ORDER
IT IS ORDERED revoking Ozan Biray’s License No. SA699143000.
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, January 30, 2023.
/s/ Kay Abramsohn
Administrative Law Judge
Transmitted this day, January 30, 2023 electronically to:
Louis Dettorre, Commissioner
Arizona Department of Real Estate
[email redacted]
[email redacted]
Ozan Biray
[email redacted]
Raya Gardner
Assistant Attorney General
[email redacted]
[email redacted]
[email redacted]
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-137160-45720000By: OAH Staff
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-137160-45720000