ALJDEC - Licensing
23F-393-REL · Department of Real Estate · 2023-10-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Real Estate License of:
ATASHA TALLIE, holder of license number SA651930000,
Respondent
No. 23F-393-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 20, 2023
APPEARANCES: The Arizona Department of Real Estate was represented by Assistant Attorney General Raya Gardner. Respondent Atasha Tallie appeared on her own behalf.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
On or about March 5, 2014, the Arizona Department of Real Estate (Department) issued Salesperson License No. SA651930000 to Atasha Tallie (Respondent). That license is currently on inactive status and expires on March 31, 2024.
On or about April 20, 2023, the Department received a complaint against Respondent via the Department’s message center from licensed Arizona broker, Lauren Wendt. Ms. Wendt was the Designated Broker of W and Partners, LLC (the Brokerage), where Respondent was employed as a real estate salesperson between April 27, 2022, and November 21, 2022. Through the complaint and additional documentation, Ms. Wendt alleged the following:
During Respondent’s employment with the Brokerage, she sold a total of four properties from which she received a commission payment. Specifically, the Brokerage issued the following commission payments to Respondent:
On June 2, 2022, for the sale of a property located on Piedmont Road in Phoenix, Arizona;
On July 7, 2022, for the sale of a property located on Illini Street in Tolleson, Arizona;
On August 11, 2022, for the sale of a property located on Irwin Street in Phoenix, Arizona (the Irwin Property); and
On September 8, 2022, for the sale of a property located on Saint Charles Avenue in Phoenix, Arizona.
On or about July 29, 2022, the Brokerage issued a physical commission check for the sale of the Irwin Property to Respondent in the amount of $4,001.00. The Brokerage added the comment “Irwin” in the notes section of the physical check.
In accordance with the Brokerage’s practice, the Brokerage placed the commission check in an envelope and taped the envelope up in the office for agent retrieval.
Respondent was unable to collect the physical check from the office because she was out of town and requested that the Brokerage pay her commission for the Irwin Property via direct deposit.
On or about August 11, 2022, the Brokerage accepted Respondent’s request and electronically paid her commission in the amount of $3,986.00, equal to the $4,001.00 commission less a $15.00 transfer fee; however, the Brokerage forgot about the physical check in the envelope on the wall and did not remove it.
On or about November 1, 2022, Ms. Wendt sent Respondent a text message informing her that she had an old check taped up in the office. At that time, Ms. Wendt did not realize that the check inside the envelope was the commission check for the sale of the Irwin Property.
On or about November 2, 2022, Respondent retrieved the check from the wall and deposited it.
On or about November 8, 2022, the check that Respondent cashed cleared and the funds were removed from the Brokerage’s account, thereby creating an accounting imbalance and alerting Ms. Wendt that Respondent had been paid for the commission on the Irwin Property twice.
Ms. Wendt contacted Respondent and notified her that she had been paid twice for the commission on the sale of the Irwin Property and indicated that the Brokerage would need to be repaid. Respondent informed Ms. Wendt that she no longer had the funds to repay the Brokerage. As a result, Ms. Wendt and Respondent began negotiating repayment from Respondent’s future commission payments from the Brokerage.
On or about November 21, 2022, Respondent severed her employment with the Brokerage without notice and started employment with a different brokerage.
On or about November 25, 2022, Ms. Wendt filed a police report with the Phoenix Police Department regarding the theft of funds.
On or about April 25, 2023, the Department sent Respondent a letter requesting a response to the allegations contained in the complaint.
On or about May 2, 2023, as part of the police investigation, the reporting officer contacted Respondent via telephone about the matter. During this conversation, Respondent acknowledged that she had been paid two commission payments for the sale of the Irwin Property and had not yet repaid any of the funds. In the Incident Report, the reporting officer requested that Respondent be charged with one count of THEFT, a class 3 felony in violation of Ariz. Rev. Stat. § 13-1802(A)(1).
On or about May 8, 2023, Respondent provided her response to the Department regarding the complaint and again acknowledged that she had received two commission payments for the sale of the Irwin Property and had yet to repay any of the funds. Additionally, Respondent indicated that she had sold two properties since severing her employment with the Brokerage and had a few potential listings.
On or about June 14, 2023, the Department contacted Ms. Wendt via telephone to inquire about the status of repayment. Ms. Wendt stated that she had not heard from Respondent in several months and had not received any repayment.
As of the date of the hearing, Respondent had not repaid the Brokerage any of the funds that she received from cashing the physical commission check for the sale of the Irwin Property.
On July 28, 2023, the Department’s Enforcement and Compliance Division Manager issued a Notice of Hearing and Complaint (Notice of Hearing) in Docket No. 23F-393-REL that gave notice that an evidentiary hearing was scheduled before the Office of Administrative Hearings. In the Notice of Hearing, the Department alleged violations of Ariz. Rev. Stat. § 32-2153(A)(9) and Ariz. Rev. Stat. § 32-2153(B)(5). The Notice of Hearing informed Respondent that the Department was seeking the revocation of her salesperson’s license.
The Department presented its case through the testimony of Steven Hooper, Senior Investigator, and submitted eight exhibits. Respondent testified on her own behalf and presented the testimony of Robert Romanet.
During Respondent’s testimony, she acknowledged that she owed the Brokerage $4,420.00 for the commission check she received and associated fees. Respondent blamed Ms. Wendt and the Brokerage for erroneously giving her a physical check for a commission she had already received. Respondent asserted that she had been in the office several times prior to the date she picked up the check and if she were trying to get money she was not entitled to, she would have taken the check earlier. Respondent argued that Ms. Wendt and the Brokerage were disorganized, which resulted in them not knowing that they should have issued a stop payment on the check after providing her with an electronic transfer for the commission. Respondent stated that she did not have any meaningful tracking system to ensure that she was being properly paid by the Brokerage. Respondent asserted that after she left the Brokerage, Ms. Wendt demanded more than the $4,420.00 Respondent previously admitted to owing. Respondent maintained that she had no issue with repaying the Brokerage the $4,420.00 she owed, but admitted she had not paid back any of the money since she received it in November 2022. Respondent indicated that she was concerned if she gave Ms. Wendt or the Brokerage any money, they would continue asserting she owed them the full amount they were demanding. Respondent argued that she was awaiting a lawsuit or other legal action being brought against her by Ms. Wendt or the Brokerage so someone else could tell her how much she owed.
CONCLUSIONS OF LAW
The Commissioner has jurisdiction over Respondent and the subject matter in this case.
Pursuant to Ariz. Rev. Stat. § 41-1092.07(G)(2) and Ariz. Admin. Code R2-19-119(B), the Department has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See Ariz. Admin. Code R2-19-119(A).
The evidence of record established that Respondent knowingly cashed a check for a commission on the Irwin Property which she had already been paid by electronic transfer. Respondent failed to take any responsibility in accepting a check for a commission that she had already received. Respondent provided no valid reason for her failure to take any steps to repay the funds she acknowledged owing since November 2022.
The practice of real estate is governed by adherence to statutes and rules and requires the utmost care by a licensed real estate agent. Respondent’s actions demonstrate her unwillingness or inability to appreciate the consequences of her actions.
The evidence of record established that grounds exist to discipline Respondent’s salesperson’s license pursuant to Ariz. Rev. Stat. § 32-2153(A)(9), and Ariz. Rev. Stat. § 32-2153(B)(5).
RECOMMENDED ORDER
Respondent’s real estate salesperson’s license shall be revoked on the effective date of the Order entered in this matter.
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, October 27, 2023.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Susan Nicolson, Commissioner
Arizona Department of Real Estate
Atasha Tallie
[email redacted]
Raya Gardner
Office of the Attorney General
[email redacted]
By: OAH Staff