ALJDEC decisions subject to certification as final

22F-232-REL · Department of Real Estate · 2022-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

Penne Graham,

holder of License No. SA622930000,

Respondent.

No. 22F-232-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 7, 2022

APPEARANCES: Penne Graham (“Respondent”) appeared on her own behalf. Assistant Attorney General Holly Wan represented the Arizona Department of Real Estate (“Department”).

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

Since May 11, 2021, Respondent has held Real Estate Salesperson License SA622930000; the inactive license is set to expire on May 31, 2023.

The Department received a copy of a notification to Respondent from the Arizona Department of Public Safety (“DPS”), dated November 5, 2021, that Respondent’s “Level One Fingerprint Clearance Card” had been changed to “Driving Restricted Level One Fingerprint Clearance Card.” The DPS notification to Respondent indicated:

DPS was notified you were arrested and/or fingerprinted for two counts Misdemeanor DUI (ARS 28-1381) on or about May 4, 2021 in Tempe, AZ. Arresting Agency was Tempe PD.

On May 4, 2021, Respondent received a traffic ticket enumerating two violations of civil traffic codes (driving actions/offenses) and two violations of criminal traffic codes (DUI to the slightest and above 0.08, both Class 1 misdemeanors).

Under an October 4, 2021 Plea Agreement, Respondent plead guilty to a charge of Reckless Driving and the other ticketed charges were dismissed. Respondent had completed a 16-hour Level II Substance Abuse Class and the Court imposed a $300.00 fine sentence.

Upon review of the Department’s records, the Department found that Respondent had not disclosed the conviction, as required pursuant to Arizona Administrative Code (“A.A.C.”) R4-28-303(D) and A.A.C. R4-28-301(F) within ten days of that action.

By letter dated December 6, 2021, the Department informed Respondent that she had not disclosed the conviction within ten business days as required. The Department requested that Respondent execute a written statement to provide “a detailed account of the circumstances” relating to the offense and conviction.

Respondent’s written narrative, dated December 15, 2021, indicated that [on May 4, 2021] she has been pulled over “for taking a wide right turn” and that her blood draw had come back under the limit which was why the charges were lowered. Respondent indicated that the public defender had told her the charges were being “lowered” and that she would have a penalty but, she further indicated, that she was unaware that the plead-charge was still a misdemeanor. Respondent stated that she was aware that she had needed to contact the Department regarding this.

On February 28, 2022, the Department issued a Notice of Hearing and Complaint, indicating the determined violation of A.A.C. R4-28-303(D) and A.A.C. R4-28-301(F) and its proposed disciplinary action of a $500.00 civil penalty against Respondent pursuant to Arizona Revised Statutes (“A.R.S.”) § 32-2160.01.

At hearing, Respondent acknowledged her confusion with regard to the ticket and the charges being lowered, thinking that only a DUI conviction had needed to be disclosed to the Department. Respondent argued that the $500.00 penalty was excessive, given the “over $1,000.00” costs she had already experienced: the traffic penalty; the traffic class; and, the costs to obtain the real estate licensure. At hearing, Respondent also indicated that guilty charge had, since, been “dropped.”

Respondent obtained the real estate salesperson license for property management purposes and she was not intending to seek clients for home sales activity.

The Department’s position is that Respondent would be expected, pursuant to applicable law, to disclose a court conviction and to provide certain information to the Department about a conviction. The Department is not seeking to revoke Respondent’s license, but requests that Respondent’s license be disciplined, as to the failure to disclose the conviction, with a $500.00 penalty.

CONCLUSIONS OF LAW

The Department bears the responsibility to protect the public through its enforcement of licensing statutes. This matter lies within the Department’s 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.”

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 of violated any of the provisions of this chapter or any rules adopted by the commissioner.

. . .

A.A.C. R4-28-301(F) provides that licensees shall, within 10 days, notify the commissioner regarding convictions, judgements, restrictions/discipline or revocations of licensure, as set forth in subsection (A)(1), and shall provide the specific documentation required in Subsection (A)(2).

A.R.S. § 32-2160.01 allows the Department to assess a civil penalty in an amount not to exceed $1,000.00 for each infraction of the applicable laws and administrative rules. In this case, the Department asserts the assessment of a penalty in the amount of $500.00 for failure to timely disclose, i.e., the combined violations of A.R.S. § 32-2153(A)(3), A.A.C. R4-28-301(F), and A.A.C. R4-28-303(D).

The hearing record established that Respondent did not timely disclose the October 2021 conviction. The Department thereby established cause to discipline Respondent’s real estate licensure under A.R.S. § 32-2153(A), A.A.C. R4-28-301(F), and A.A.C. R4-28-303(D).

The Department is charged with protecting the public and consumers who deal with licensees when it issues licenses. The Department’s concern in this case is whether Respondent has an understanding of the applicable laws and rules for a licensee and, thus, is able to be regulated. The Department’s authority with regard to licensure and discipline covers both active and inactive licenses.

In the instant matter, Respondent acknowledged her confusion with regard to requisite disclosure once the charges had been lowered and her confusion with regard to that “lowered” charge still being a misdemeanor. Respondent is not seeking specific employment as a real estate sales person to activate her license, and Respondent indicated that the guilty charge had, since, been dropped. Respondent noted that she has further continuing education classes to take.

Based on the hearing record, the Administrative Law Judge concludes that the Department’s determination to assess a penalty for the demonstrated failure to disclose is appropriate and is a minimal disciplinary action intended to underscore the need for licensee responsibility in regard to licensee actions and full disclosure.

Based on the evidence, the Administrative Law Judge concludes that Respondent’s license should be disciplined with a modified penalty amount, i.e., a penalty in the total amount of $150.00.

RECOMMENDED ORDER

The Commissioner shall discipline Respondent’s License SA622930000 with an assessment of a civil penalty in the total amount of $150.00 to be paid within 2 months of the Department’s final Order in this matter, with the proviso that if the penalty is not paid, that Respondent’s License SA622930000 be suspended for 6 months.

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, April 27, 2022.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate

By Miranda Alvarez

Legal Secretary

-54864001

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