ALJDEC - Licensing
23F-024-REL · Department of Real Estate · 2024-05-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Real Estate Salesperson License of:
THOMAS KUGELMAN, holder of license number SA699127000,
Respondent.
No. 23F-024-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 30, 2024
APPEARANCES: Assistant Attorney General James Rolstead represented the Arizona Department of Real Estate (Department). Respondent Thomas Respondent (Respondent) did not appear.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
EXHIBITS ADMITTED INTO EVIDENCE: Department’s Exhibits 1 through 12.
_____________________________________________________________________
FINDINGS OF FACT
1. On July 21, 2022, Respondent entered into a Consent Order with the Department as a condition for being issued a two year provisional real estate license. Respondent’s license, number SA699127000, issued on July 25, 2022, is inactive and scheduled to expire on July 31, 2024.
2. The Department issued the Consent Order, in part, due to Respondent ’s convictions and probation violation for the following offenses:
a. Assault-Domestic Violence, a misdemeanor, City of Phoenix Municipal Court, convicted on September 22, 2009 and a probation violation;
b. Probation Violation on March 30, 2015 related to a Drug Conviction and Criminal Trespass in Yavapai Superior Court; Drug Violation was designated a felony after Respondent violated probation;
c. DUI, a misdemeanor, Mayer Justice Court, convicted on June 3, 2021.
3. The Consent Order required Respondent to submit quarterly affidavits signed by Respondent’s designated broker, with each signature notarized, during the provisional license period. Respondent signed the Consent Order and agreed to comply with all the terms and deadlines in the Consent Order.
4. On July 22, 2022, the Department mailed and emailed Respondent a Compliance Introduction Packet that explained how to submit the quarterly affidavits and the due dates.
5. In January 2023, Respondent requested two extensions for submitting the quarterly affidavit that was due on January 19, 2022. The Department granted his requests and Respondent made his submission on February 2, 2022.
6. Respondent failed to submit his April 2023 affidavit on time. He requested an extension that the Department granted. Respondent made his submission by the extended deadline.
7. Respondent failed to submit his July 2023 affidavit on time.
8. On August 21, 2023, the Department sent Respondent a message that he missed his July affidavit due date and was being provided an extension until August 25, 2023. Message Center records show that Respondent read the message on September 8, 2023, but never responded or submitted the affidavit.
9. On August 23, 2023, the Department of Public Safety sent the Department a copy of a letter stating Respondent’s Fingerprint Clearance Card (FCC) was suspended due to his arrest for Criminal Trespassing in Yavapai County.
10. On September 8, 2023, the Department sent Respondent a letter and message stating that it has been notified of Respondent’s suspended FCC and advising that he needed to submit a copy of a valid FCC within 30 days.
11. Message Center records show Respondent read the message on September 8, 2023, but never responded.
12. On September 14, 2023, the Department sent to Respondent via the message center and certified mail a Notice of Non-Compliance with the Commissioner’s Order, stating that he failed to submit the affidavit due on July 21, 2023. The Department ordered Respondent to submit this affidavit by September 25, 2023.
13. Message Center records show that Respondent read the Notice of Non-Compliance message on September 15, 2023, however, he never responded.
14. Respondent never submitted a valid FCC as required.
15. Respondent never submitted the July affidavit or any further affidavits and has not communicated with the Department since May 2023.
15. On March 22, 2024, the Department issued a Notice of Hearing setting the matter for hearing on April 30, 2024. The Notice of Hearing provided that the issue set for hearing was, “whether grounds exist to revoke Respondent’s real estate license.”
16. A hearing was held on April 30, 2024.
17. At hearing, the Department presented the testimony of its Legal Assistant, Vivian Nunez.
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).
The preponderance of the evidence shows that Respondent failed to
comply with the terms of the Department’s Consent Order, which is a violation of A.R.S. § 32-2153(A) (24).
5. The preponderance of the evidence shows that Respondent’s FCC card was suspended.
Pursuant to A.R.S. § 32-2108.01(C), the Department shall suspend the
license of a real estate licensee if the fingerprint clearance card is determined to be invalid and an applicant who was issued a license fails to submit a new valid fingerprint clearance card within ten days after being notified by the Department.
Based on the foregoing, the Administrative Law Judge concludes
that grounds exist to revoke Respondent’s two year provisional real estate license, pursuant to A.R.S. §§ 32-2108.01(C) and 32-2153(A)(24).
ORDER
IT IS ORDERED, that License No. SA699127000, held by Thomas Kugelman, is revoked.
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, May 20, 2024.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Susan Nicolson, Commissioner
Arizona Department of Real Estate
James Rolstead
Assistant Attorney General
Attorney General's Office
[email redacted]
Thomas George Kugelman
[email redacted]
By: OAH Staff