ALJDEC decisions subject to certification as final

22F-189-REL · Department of Real Estate · 2022-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

VINCENT PRESTINARIO, holder of license number SA692745000,

Respondent.

No. 22F-189-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 21, 2022

APPEARANCES: Vincent Prestinario appeared representing himself. Assistant Attorney General Lynette Evans represented the Arizona Department of Real Estate.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

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FINDINGS OF FACT

Procedure and Background

The Arizona Department of Real Estate (“Department”) issued Real Estate Salesperson License No SA692745000 to Vincent Prestinario (“Respondent”) on October 30, 2020. The license is currently active and set to expire on October 31, 2022.

Since November 19, 2020, Respondent has been employed with Realty Executives.

Philip Cooney was the Designated Broker at Realty Executives from March 19, 2018 to January 24, 2022.

On or about October 12, 2021, the Department received a complaint from Doug Lasater against Respondent’s license. Overall, the complaint alleged that on October 11, 2021, Respondent, failed to secure Mr. Lasater’s property after a scheduled showing of the home. The complaint provided several facts for consideration:

The property’s listing agent, Robb Asbjornsen, had contacted another licensed salesperson, Kelly Mahoney, to go the home and check out the situation.

Ms. Mahoney found the Supra [lockbox] on the ground and the house key in the front door lock. Ms. Mahoney also found all the lights on in the home and the back sliding door wide open. Ms. Mahoney took photographs of the Supra, the key in the door, and the open sliding door.

Mr. Lasater accessed security video footage and forwarded multiple images of the last person in the home according to the “Showtime” time frame, determining the person in the home at that time had been Respondent.

By letter dated October 21, 2021, the Department asked Respondent to give a written statement regarding the matter. The Department also notified Respondent’s designated broker, Mr. Cooney, regarding the complaint and asked for a written statement.

The Department received Respondent’s written statement, which indicated that, if he had not secured a property after a showing, it had been unintentional and that he would take such a situation very seriously and it would never happen again.

The Department received Mr. Cooney’s response indicating that Respondent had been counseled regarding his responsibilities regarding securing properties. Mr. Cooney further noted that such an action would have been “out of character” for Respondent and would be an isolated incident “unlikely to ever happen again.”

Pursuant to its Notice of Hearing and Complaint, dated May 5, 2022, the Department referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing on June 21, 2011, to determine whether grounds exist for the Department to suspend or revoke Respondent’s Real Estate Salesperson’s License No. SA692745000, 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 hearing, the Department called Linda Bevins as its witness and submitted Exhibits 1-17 into the hearing record.

At hearing, Respondent credibly testified on his own behalf. Respondent acknowledged that he was the person in the security photographs and humbly explained that it had been a neglectful lapse in the process of showing home after home that morning and trying to keep up with the Showtime requested time frames for appointments. Respondent noted that he now double-checks everything before he leaves a property and sometimes goes back just to be sure the property is secured.

At hearing, the Department argued that, while Respondent’s actions were unintentional, the conduct of leaving a property unsecured was still a serious matter regarding a salesperson’s responsibilities as to the public/homeowners’ properties. The Department argued that Respondent’s conduct should be considered to be incompetence as a failure to appreciate the public consequences of his actions/inactions that day, as a violation of A.R.S. § 32-2153(B)(8), as well as a failure to deal fairly with all other parties to a transaction, as a violation of A.A.C. R4-28-1101(A), and, together, warranted a $1,000.00 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 Respondent 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 any 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).

Applicable law

Ariz. Rev. Stat. § 32-2153(B)(8) 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 or applicant has:

Demonstrated incompetence to perform any duty or requirement of a licensee under or arising from this chapter. For the purposes of this paragraph, "incompetence" means a lack of basic knowledge or skill appropriate to the type of license the person holds or a failure to appreciate the probable consequences of the licensee's action or inaction.

5. Ariz. Admin. Code R4-28-1101(A) requires a licensee, in the nature of fiduciary responsibilities to a client, to also deal fairly with all other parties to a transaction.

6. 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.

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7. In this case, the underlying facts are undisputed. On October 11, 2021, Respondent entered Mr. Lasater’s property and provided a video showing to a customer. Respondent left the property after completing the video showing and, unintentionally, left the property unsecured: a sliding door was left open, the front door key was left in the lock, and the Supra was left on the ground by/on the front door mat. Respondent admitted to a momentary “lapse” as he progressed through his scheduled showings that day. The hearing record established evidence of Respondent’s actions that should be characterized as a violation of Ariz. Rev. Stat. § 32-2153(B)(8) by a preponderance of the evidence.

8. The Administrative Law Judge concludes that Respondent’s actions were not in the realm of a realty “transaction” requiring fiduciary overtones that protect and promote the client's interests along with fair dealing with all other parties to the “transaction.” The hearing record does not establish a violation of Ariz. Admin. Code R4-28-1101(A).

9. The Administrative Law Judge concludes that Respondent’s conduct was not appropriate; however, it was unintentional and the Department acknowledged at hearing that there was no evidence of intentional conduct. In concluding that Respondent’s actions were unintentional, the Administrative Law Judge does not conclude there was justification or excuse to mitigate the violation of Ariz. Rev. Stat. § 32-2153(B)(8).

10. Based on the credible evidence of record, the Administrative Law Judge concludes that grounds exist for the Department to take disciplinary action against Respondent’s real estate salesperson license and impose a civil penalty against Respondent. However, given the fact that Respondent’s license has not been previously disciplined and Respondent’s broker provided educational counseling regarding Respondent’s responsibilities, the Department’s levy of a $1,000.00 civil penalty should be reduced.

RECOMMENDED ORDER

Based on the foregoing,

it is ORDERED that, within 30-days of the effective date of the Final Order in this matter, Respondent Vincent Prestinario shall pay a civil penalty of five hundred dollars ($500.00) to the Department in certified funds or by valid credit card.

IT IS FURTHER ORDERED that, if Respondent fails to timely pay the civil penalty, the Department shall suspend Respondent Vincent Prestinario’s Real Estate Salesperson License No SA692745000 until he 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, July 20, 2022.

Office of Administrative Hearings

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate

-54864001

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-137160-45720000By Miranda Alvarez

Legal Secretary