ALJDEC decisions subject to certification as final

22F-458-REL · Department of Real Estate · 2022-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson License of:

MICHAEL G. SCARAMELLA, holder of license number SA629427000,

Respondent

No. 22F-458-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 20, 2022

APPEARANCES: Respondent Michael G. Scaramella did not appear. The Arizona Department of Real Estate was represented by Assistant Attorney General James Rolstead.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

On or about October 27, 2008, the Arizona Department of Real Estate (Department) issued Salesperson License No. SA629427000 to Michael G. Scaramella (Respondent). The license had been inactive since February 28, 2022, and was set to expire on October 31, 2022.

On or about February 22, 2022, the Department received copies of two newspaper articles from an unknown person reporting that Respondent had been convicted of failure to comply with a court order. The Department initiated an investigation of the matter.

On or about February 4, 2022, Respondent pleaded guilty, and was convicted of, two counts of Interfering with a Judicial Proceeding – Failure to Comply with a Court Order, a class 1 misdemeanor, in the Pima County Consolidated Justice Court in case numbers CR21-006185-MI and CR21-011978-MI. On or about March 30, 2022, Respondent was sentenced to 180 days confinement with 150 days suspended upon successful completion of 12 months of unsupervised probation.

Respondent did not disclose the convictions to the Department in writing within ten days as required by Arizona statute.

On or about February 18, 2022, a bench trial was held in the Pima County Consolidated Justice Court in case number CR21-002428-MI, in which Respondent was found guilty of two counts of Harassment by Following, a class 1 misdemeanor. On or about March 30, 2022, Respondent was sentenced to fines and 180 days confinement with 180 days suspended upon successful completion of 3 years of supervised probation

Respondent did not disclose the convictions to the Department in writing within ten days as required by Arizona statute.

Respondent later appealed the convictions.

On or about May 10, 2022, the Department issued a letter to Respondent indicating that the Department had initiated an investigation based on the receipt of information indicating he had been convicted in the above-referenced matters, which he had failed to disclose to the Department in writing within ten business days, as required. Respondent was directed to respond with a written statement to the Department no later than May 24, 2022.

On or about May 23, 2022, Respondent provided a written statement to the Department regarding the convictions. In the statement, Respondent addressed the nature of the charges for which he was convicted, but he did not explain his failure to report the charges or convictions to the Department in a timely manner. Respondent indicated the following:

As for this statement this case is not settled, my lawyer has protested this hearing, my rights were violated by the court. This case will be appealed.

All errors in original.

Three days prior to the hearing, Respondent filed a Motion to Continue in which Respondent provided as the grounds for the motion, “Until Appeal is heard.”

As the motion was untimely and failed to present good cause, the motion was denied.

After issuance of the order denying continuance, Respondent emailed the Office of Administrative Hearings as follows:

I’m sorry you didn’t understand that my false conviction is going to Appeals court, I’m not guilty of the charges. Once the Appeals hearing is heard and this conviction overturned I will be happy to attend your hearing, you are putting the “cart before the horse” in this matter.

All errors in original.

The day prior to the hearing, Respondent filed a second Motion to Continue in which Respondent provided as the grounds for the motion, “Reschedule hearing as I now must seek legal counsel.”

As the second motion was also untimely and failed to present good cause, the motion was denied.

Respondent did not appear at the hearing, and therefore did not present any evidence to defend his license.

The Department’s position was that Respondent was in violation of applicable statue and rule, as was noticed through his acts and conduct of failure to disclose a conviction. The Department requested that a monetary penalty in the amount of $1,000.00 be assessed against Respondent.

CONCLUSIONS OF LAW

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

Ariz. Rev. Stat. § 32-2153 provides, in pertinent part, 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 or violated any of the provisions of this chapter or any rules adopted by the commissioner. . . .

B. The commissioner may suspend or revoke a license . . . issued under this chapter if it appears that the holder . . . has: . . . .

9. Violated any federal or state law, regulation or rule that relates to real estate or securities or that involves forgery, theft, extortion, fraud, substantial misrepresentation, dishonest dealings or violence against another person or failure to deal fairly with any party to a transaction that materially and adversely affected the transaction. This paragraph applies equally to violations of which the licensee was convicted in any lawful federal or state tribunal and to any admissions made in any settlement agreement by the licensee to violations.

Ariz. Admin. Code R4-28-303(D) provides, in pertinent part, as follows:

D. A salesperson or broker shall notify the Department in writing within 10 days of any change in the individual’s personal information or qualifications. The salesperson or broker shall include in the notice the individual’s name, signature, license number, and:

1. If disclosing information required under R4-28-301, such as a criminal conviction, adverse judgment, denial or restriction of or disciplinary action against a professional or occupational license, or recovery fund payment on the person’s behalf, a written statement providing detailed information and, upon request by the Department, the supporting documentation identified in R4-28-301(A)(2) . . . .

Ariz. Admin. Code R4-28-301(F) provides as follows:

Each salesperson, broker, school owner, director, administrator, and instructor shall, within 10 days of each occurrence, notify the Commissioner in writing of any change in information provided under subsection (A)(1)(a) through (d) and provide documentation listed in subsection (A)(2).

Ariz. Rev. Stat. § 32-2160-01 provides that the commissioner may assess a penalty of up to $1,000.00 per violation.

The hearing record established that Respondent failed to timely disclose a conviction. The Department thereby established cause to discipline Respondent’s real estate licensure pursuant to Ariz. Rev. Stat. § 32-2153(A)(3) and (B)(9) and Ariz. Admin. Code R4-28-303(D) and R4-28-301(F).

Notably, the Department was not seeking discipline against Respondent’s for the convictions themselves, but rather for the failure by Respondent to timely disclose those convictions as required. Accordingly, the outcome of Respondent’s appeals of the convictions has no bearing on whether a violation of the Department’s statutes and regulations occurred.

The Department has been charged with protecting the public and consumers who deal with licensees. The Department’s concern in this case was understandable in that the Department relies on licensees to be knowledgeable and understand applicable laws and administrative rules and provide notifications to the Department when required by the law and administrative rules.

Based on the hearing record, the Administrative Law Judge concludes that the Department’s determination to assess a monetary penalty as discipline was appropriate based on Respondent’s failures to timely report his conviction. Based on the evidence, the Administrative Law Judge concludes that Respondent’s license should be disciplined through a monetary penalty of $1,000.00 pursuant to Arizona Revised Statutes § 32-2160.01.

RECOMMENDED ORDER

The Commissioner shall assess a $1,000.00 monetary penalty as discipline against Respondent’s License SA629427000.

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, November 9, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically or by mail to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate

Michael G. Scaramella

[email redacted]

James Rolstead

Attorney General's Office

[email redacted]

By-54864001

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-137160-45720000 Miranda Alvarez

Legal Secretary