ALJDEC - Licensing
23-002-NOT · Secretary of State · 2023-06-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of:
Teresa Rogers,
Petitioner,
v.
Arizona Secretary of State,
Respondent.
No. 23-002-NOT
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 25, 2023
APPEARANCES: Petitioner Teresa Rogers appeared on her own behalf. Amy Chan, General Counsel, represented Respondent Arizona Secretary of State. Diana Ogaz appeared as a witness.
ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella
FINDINGS OF FACT
The Arizona Secretary of State (“Respondent”) is the authority for commissioning and regulating Notary Publics in the State of Arizona.
On or about January 11, 2023, Teresa Rogers (“Petitioner”) submitted a Notary Public Application (“Application”) to Respondent.
On or about February 24, 2023, Respondent issued a Denial Notice to Petitioner, denying her Application pursuant to A.R.S. § 41-271(3), due to a felony conviction involving fraud, dishonesty or deceit.
Petitioner requested an Informal Settlement Conference and the parties were unable to reach an agreement. Consequently the matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
After a May 11, 2023 prehearing conference in which both parties participated, Respondent issued an Amended Denial Notice to Petitioner informing her that Respondent determined that there are additional grounds for denial of her Application pursuant to A.R.S. § 41-271(A)(13), due to the 2008 revocation of Petitioner’s Notary Public Commission.
Pursuant to the Notice of Hearing issued by Respondent, “[t]he hearing is to resolve the dispute between the Petitioner and the Arizona Secretary of State (“Respondent”) concerning Respondent’s determination on DENIAL of Notary Commission.” (Emphasis in original.)
Diana Ogaz, Respondent’s Supervisor for the Business Services Division, testified regarding the basis for the denial of Petitioner’s Application. Ms. Ogaz testified that the Probable Cause Statement that established probable cause for Petitioner’s arrest stated the following:
Between 12-13-04 to 04-18-05, Teresa Rogers systematically took $34,295.50 by making cash withdrawals from several ATMs. During this time, Teresa Rogers had power of attorney over the victim, Jeanne Irwin’s bank accounts and welfare. However, when asked about the money used, Teresa Rogers provide a “false” or fraudulent bank statements to Jeanne Irwin. An investigation revealed when comparing the original bank statements provided by the bank and the statements provided by Teresa Rogers a difference of $34,295.50.
All errors in original.
In or about 2007, Petitioner was convicted of Theft, a Class 2 felony.
On or about September 2, 2021, Petitioner satisfied the judgment of her criminal restitution order in the amount of $28,258.46.
On or about September 15, 2022, Petitioner’s civil rights were restored and she was granted a Certificate of Second Chance by the Maricopa County Superior Court, setting aside the judgment of guilt and restoring Petitioner’s right to possess a firearm.
Ms. Ogaz testified that Petitioner’s Notary Commission was revoked in 2008 following an investigation by the Attorney General’s Office into a complaint filed against Petitioner alleging that Petitioner improperly notarized two (2) Quit Claim Deeds. Petitioner’s response to the complaint included journal entries that either referred to different documents than the deeds that were the subject of the complaint, or reflect a record of incorrect information. Petitioner admitted in her response to the investigation that she did not record the notarization of the deeds. The investigation further revealed that Petitioner failed to update her contact information with Respondent as required by statute.
As a result of the investigation, Respondent revoked Petitioner’s Notary Commission based upon Petitioner’s: i) failure to record all notarial acts in her journal; ii) failure to update her contact information within thirty (30) days of an address change; and iii) failure to discharge fully and faithfully any of the duties or responsibilities required of a notary public.
Petitioner testified that a long period of time has transpired since her conviction and revocation. Petitioner asserted that she “feels like she deserves another chance.” Petitioner testified that she has been an escrow officer for 35 years and that she has disclosed her conviction to every employer and has been hired notwithstanding her conviction. Petitioner testified that she has a “record of trust and dependability.”
During cross examination, Petitioner acknowledged a date discrepancy in one of the exhibits she provide for hearing, as well as the exhibit not pertaining to the deeds at issue in the 2008 complaint. Petitioner further testified during cross examination, that she “was not aware that a notary is considered a public officer.”
CONCLUSIONS OF LAW
The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement, and the standard of proof on all issues in this matter is by a preponderance of the evidence. Pursuant to A.R.S. § 41-1092.07(G)(1), Petitioner bears the burden of proof in this matter. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Pursuant to A.R.S. § 41-271(A), “[t]he secretary of state may deny, refuse to renew, revoke, suspend or impose a condition on a commission as notary public for any act or omission that demonstrates the individual lacks the competence or reliability to act as a notary public, including any of the following:
. . . .
3. A conviction of the applicant or notary public of any felony or a crime involving fraud, dishonesty or deceit. A conviction after a plea of no contest is deemed to be a conviction for the purposes of this paragraph.
. . . .
13. The prior revocation of a notary public commission in this state.
The uncontroverted evidence of record established that Petitioner violated the provisions of A.R.S. § 41-271(A)(3) as she was convicted of Theft, a class 2 felony, and the facts giving rise to that conviction include the fact that the theft was from a vulnerable adult over a period of several months.
The uncontroverted evidence of record established that Petitioner violated the provisions of A.R.S. § 41-271(A)(13) as Petitioner’s notary public commission was revoked in 2008, after an investigation established that Petitioner failed to record all notarial acts in her journal, failed to update her contact information as required by statute, and failed to discharge fully and faithfully any of the duties or responsibilities required of a notary public.
Based on the evidence of record, Petitioner failed to establish by a preponderance of the evidence that Respondent improperly, erroneously, or contrary to law, denied her Application.
RECOMMENDED ORDER
IT IS RECOMMENDED that Petitioner’s appeal be denied and Respondent’s Denial of Petitioner’s Application be affirmed.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, June 2, 2023.
/s/ Sondra J. Vanella
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Adrian Fontes
Secretary of State - HAVA
Election Services Division
1700 West Washington, 7th Floor
Phoenix, AZ 85007
Teresa Rogers
1430 E. Beacon Dr.
Gilbert AZ 85234
[email redacted]
Amy Chan
Arizona Secretary of State of Arizona
General Counsel
1700 West Washington
Phoenix Arizona 85007
[email redacted]
Secretary of State of Arizona
Attn: Notary Complaints
1700 West Washington St., 7th Floor
Phoenix AZ 85007
[email redacted]
By: OAH Staff