ALJDEC decisions subject to certification as final

22F-277-REL · Department of Real Estate · 2023-08-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

MABRY, CHRISTOPHER, holder of license number BR538441000

Respondent.

No. 22F-277-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 27, 2023

APPEARANCES: Respondent Christopher Mabry did not appear. Assistant Attorney General Reya Gardner appeared on behalf of the Arizona Department of Real Estate.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

1. On January 29, 2014, the Arizona Department of Real Estate (Department) issued license number BR538441000 to Respondent Christopher Mabry. The license is set to expire on January 31, 2024. See Exhibit 1.

2. On September 24, 2021, Respondent disclosed a misdemeanor conviction to the Department. Respondent provided the Department with the supporting documents regarding the disclosure as required under the real estate rules with the exception of a valid Fingerprint Clearance Card. See Exhibit 4.

3. On September 27, 2021, the Department contacted Respondent regarding the missing Fingerprint Clearance Card (FCC). See Exhibit 5. Respondent responded that his Fingerprint Clearance Card was expired and that he was unable to obtain a FFC due to the misdemeanor that he disclosed in September of 2021. See id. The Department informed Respondent that a valid FCC was required and provided him with information on how to obtain a good cause exception through the Arizona Board of Fingerprinting.

4. As of February 4, 2022, the Department had not received a valid FFC from Respondent. For this reason, the Department determined that Respondent had violated the real estate statutes by failing to have a valid FCC and failing to produce a valid FCC during the Department investigation of the reported misdemeanor conviction. Consequently, the Department issued a Consent Order (Order). See Exhibit 6. On February 5, 2022, Respondent signed the Order. On February 7, 2022, the Consent Order went into effect with the signature of the Commissioner. See id.

5. The Order required Respondent to provide a valid FFC to the Department within 60 days of the entry of the Order. See Exhibit 6, Bates 018. The Order further required Mabry to submit a bi-weekly progress report on the status of his FCC application to the Department until he provided a valid FFC. See id.

6. On February 17, 2022, Respondent submitted his first statement regarding his FFC application, indicating that he intended to submit his application the next day on February 18, 2022. See Exhibit 17. Respondent attached the receipt for the application fee from the Department of Public Safety (DPs) to this message. See id.

7. On March 3, 2022, Respondent sent a bi-weekly progress report to the Department stating he received an acknowledgement letter from DPS on February 23, 2022, stating his online profile indicated that his application was paid and in process. See Exhibit 8.

8. On March 18, 2022, Respondent reported that his application was still “In Process” as of that date. See Exhibit 9.

9. On March 28, 2022, DPS issued Respondent a Notice of Denial that informed Respondent that his FCC application had been denied base on his misdemeanor conviction. See Exhibit 10, Bates 030-031. The Notice of Denial informed him of his appeal rights and his possible eligibility for a good cause exception through the Arizona Board of Fingerprinting. See id.

10. On April 15, 2022, Respondent submitted his bi-weekly progress report to the Department via the Department’s message center and attached the Notice of Denial from DPS. See Exhibit 10. In his report, he stated, “I must apply for a good cause exception from the Arizona Board of Fingerprinting. I will continue to update on status.” See id.

11. On April 29, 2022, Respondent submitted his bi-weekly progress report to the Department and stated “I will be eligible for a possible ‘good cause exception’ to be granted by the AZ Board of Fingerprinting once I have satisfied the terms of my unsupervised probation for my current case. My next court date is a review hearing scheduled for August 12, 2022.” See Exhibit 11.

12. On May 27, 2022, Respondent submitted his bi-weekly progress report to the Department. In subsequent correspondence related to his report, Respondent reiterated that he would be eligible for a good cause exception once his current case scheduled for hearing on August 12, 2022 was “cleared and closed.” See Exhibit 12.

13. On June 10, 2022, Respondent submitted his bi-weekly progress report to the Department and indicated that he did not have any updates to report. See Exhibit 13. The Department responded and asked if Respondent had any messages or correspondence from the appropriate authority confirming that he would not be eligible for a good cause exception until his current case was closed. Respondent responded that he did not have such correspondence and that he would “try to reach someone at the board of fingerprinting [sic] to see if they can provide something more specific in writing. I will forward more information asap.” See id.

14. On July 22, 2022, Respondent submitted his bi-weekly progress report a screenshot from the Arizona Board of Fingerprinting website regarding the requirements for a good cause exception and stated “I must have completed my period of probation to be eligible for a good cause exception.” See Exhibit 15.

15. On August 19, 2022, Respondent submitted his bi-weekly progress report to the Department and informed the Department that he had completed the required sentence provisions and had been released from probation. See Exhibit 16.

He further stated “Now that the court documents have been updated, I should be eligible to pursue a good cause exception to acquire a fingerprint card...I will update ADRE as to my status and timeline of my good cause exception to the Board of Fingerprinting and that the “Estimated turn around [sic] time, barring investigation and documentation, is 4-8 weeks. I will update as ore details become available.” See id.

16. On November 11, 2022, Respondent submitted his bi-weekly progress report to the Department and stated, in part, “Upon follow up with the board [sic] via phone earlier this week, I was informed that my application is still in process and my references are being confirmed. Estimated time of completion is still unknown. I will follow up again early next week and attempt to obtain another update on the timeline.”

See Exhibit 18.

17. On December 14, 2022, Respondent submitted his bi-weekly progress report to the Department and indicated that he was still waiting on a progress update from the Board of Fingerprinting and had not receive any updated correspondence on the matter. See Exhibit 19. In response, the Department stated “For your next update, please provide a copy of the latest correspondence. This should [sic] some kind of written communication regarding the timeline of your clearance card and where your file is within the DPS process. A copy of an email would be more than acceptable.” See id.

18. On December 30, 2022, Respondent submitted his bi-weekly progress report to the Department and did not provide any written communication as requested. See Exhibit 20. Respondent stated “I will attempt again next week to make a contact with them [Arizona Board of Fingerprinting] to hopefully obtain some written documentation as to the status.” In response, the Department stated “For your next submission, please submit proof of attempted written contact with the AZ Board of Fingerprinting by 1/13/2023.” See id.

19. On January 23, 2023, ten days after his bi-weekly progress report was due, Respondent submitted his bi-weekly progress report to the Department and stated he did not have any written correspondence from the Arizona Board of Fingerprinting. In response the Department stated “By 1/27/2023, please provide your FCC application number.” See Exhibit 21.

20. Respondent failed to submit his bi-weekly report and provide his FFC application number, as requested in the Department’s prior correspondence, by January 27, 2023.

21. On February 2, 2023, as a result of this non-compliance, the Department issued a Notice of Non-Compliance with Commissioner’s Order to Respondent informing him of his non-compliance and extending the deadline to submit the requested information to February 17, 2023. See Exhibit 22.

22. On February 8, 2023, in response to the Notice of Non-Compliance with Commissioner’s Order, Respondent contacted the Department via the message center and requested another 90-day extension to pursue his FCC. See Exhibit 23. The Department responded and stated “We have not had, and still do not have, proof of any progress you’ve made for your FCC specifically. After being denied the Fingerprint Clearance Card (FCC) issued by the Department of Public Safety, you had the opportunity to apply for a ‘Good Cause Exception Process’, but we have no confirmation if you have done so or not. You have not submitted any documents or copies of correspondence from or with the Department of Public Safety, all while we have continuously asked for proof of communication for the past few months. By your next update, due no later than 2/24/2023, you must submit documentation proving you have made recent and progressive steps toward obtaining your FCC and recent correspondence from the Department of Public Safety.” See id.

23. On February 24, 2023, Respondent submitted his bi-weekly progress report to the Department via the Department’s message center and stated that he was not able to provide the Department with the requested documentation. See Exhibit 24.

24. Respondent has not provided the Department with the requested documents and has not obtained a valid FCC.

25. On April 14, 2023, the Department issued a Notice of Hearing and Complainant to Respondent. Through the Notice, the Department notified Respondent that a hearing would be conducted on May 19, 2023 to determine whether grounds exist to revoke Respondent’s real estate license. Respondent subsequently filed a Motion to Continue the hearing date for the purpose of participating in a settlement conference. The Department advised that the parties were unable to resolve he mater informally and requested the hearing be rescheduled. The Motion was granted and a Minute Entry Resetting the Hearing date for July 27, 2023, was mailed to Respondent.

26. A hearing was held on July 27, 2023.

27. At hearing, the Department’s Compliance officer, Lauren Abril, testified on behalf of the Department. The Department submitted exhibits 1-26.

28. Respondent did not request to appear telephonically at the hearing, nor that the hearing be continued. Although the start of the duly noticed hearing was delayed approximately fifteen minutes, Respondent did not appear, personally or through an attorney. Consequently, Respondent did not present any evidence to defend his real estate broker license.

CONCLUSIONS OF LAW

The Department bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(2).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

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) provides in pertinent part:

The commissioner may suspend or revoke a license, deny the issuance of a license, issue a letter of concern to a licensee, issue a provisional license or deny the renewal or the right of renewal of a license issued under this chapter if it appears that the holder or applicant, within five years immediately preceding, in performing or attempting to perform any acts authorized by the license or by this chapter, has:

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24. Violated any condition or term of a commissioner's order.

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The Department established by a preponderance of the evidence that

Respondent has not provided the Department with a valid fingerprint clearance card, which is a violation of Ariz. Rev. Stat. § 32-2108.01.

6. Based on the proven violations, the Department has authority to revoke

Respondent’s license. See Ariz. Rev. Stat. § 32-2153(A)(24) and Ariz. Rev. Stat. § 32-2108.01. Considering the facts and circumstances of this matter, Respondent’s license should be revoked.

ORDER

IT IS ORDERED that Christopher Mabry’s real estate broker license

No. BR538441000 is 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 forty (40) days from the date of that certification.

-54864001

001

-137160-45720000Done this day, August 16, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Susan Nicolson, Commissioner

Arizona Department of Real Estate

By: OAH Staff