ALJDEC - Licensing
24F-003-REL · Department of Real Estate · 2024-05-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Real Estate Salesperson License of:
JACOB WINTERS, holder of license number SA645174000,
Respondent
No. 24F-003-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: May 7, 2024
APPEARANCES: Respondent Jacob Winters did not appear. The Arizona Department of Real Estate was represented by Assistant Attorney General James Rolstead.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
EXHIBITS ADMITTED INTO EVIDENCE: Department Exhibits 1 through 13.
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FINDINGS OF FACT
The Department issued real estate salesperson license number SA645174000 to Jacob Winters (“Respondent”) on October 9, 2012. The license is scheduled to expire on October 31, 2024.
On March 10, 2023, the Department received a complaint from Summer Wilkins alleging that the agents involved with her purchase of a home failed to disclose pertinent information about the property and failed to provide invoices, permits, or written disclosure regarding the property.
In November 2021, Ms. Wilkins began the buying process for property located at 660 S. 96th Place, Mesa, Arizona (“the property”).
William May, PLLC, Michael Winters, and Respondent are members of Leap Frog Properties, LLC (“Leap Frog”), the owner and seller of the property. Respondent represented Leap Frog as the seller’s agent.
William May (“May”) is a designated broker of Breinholt May Realty & Investments, the brokerage that Respondent was employed with during the transaction.
Respondent disclosed in the Multiple Listing Service (MLS) listing and in the purchase contract that “Owner agent and listing agent is a member of the owning LLC.”
The listing for the property stated in the Public Remarks section, “Wow!! Absolutely gorgeous remodel. New roof, new windows, complete interior remodel! This 4 bedroom home with no HOA is move in ready!”
Ms. Wilkins stated in the complaint that she started having serious electrical issues within the home and had an electrician come out. “Upon his inspection of the home, all wiring is out of code it’s a complete remodel tearing out everything down to studs and replacing all the wires within the home.”
On March 13, 2023, the Department sent a letter to Respondent via regular mail and the Department’s online message center, advising him of Ms. Wilkin’s complaint and requesting a written response and supporting documentation by March 27, 2023.
Respondent opened the message on April 4, 2023; however, he never responded to the letter.
On March 28, 2023, the Department sent a follow-up letter to Respondent via certified mail and the online message center. The letter requested a written response and supporting documentation by April 4, 2023.
Respondent opened the message on April 3, 2023; however, he never responded to the follow-up letter.
On April 10, 2023, the Department sent a subpoena to Respondent via certified mail and the message center requiring him to appear for an interview on April 20, 2023. The certified mail was delivered on April 19, 2023; however, Respondent never opened the online message.
Respondent did not appear for the interview.
On May 2, 2023, Department Investigator Bret Biesenthal sent a message to Respondent via the message center, stating “Mr. Winters, as discussed on the phone, I indicated that you are past the statutory requirement for providing a response to the Department. However, if you still want to defend your position in this matter, please provide a response and documentation by Friday, May 5, 2023. Thank you.” Respondent never responded.
On May 22, 2023, Mr. May appeared for an interview with the Department and stated the following:
He, as a member of behalf of Leap Frog, purchased the property “as-is” as part of a wholesale deal and did not receive any property disclosures.
He does not do an inspection when he purchases properties.
He did a “facelift” remodel on the property including windows, flooring, paint, electrical switches, no new electrical, can lights, and paint. No permits were required.
He did not have any invoices to provide of the work done because it was “light stuff.”
On or about March 22, 2024, the Department issued a Notice of Hearing informing Respondent that a hearing in this matter would convene at 1:00 p.m. on May 7, 2024.
The Department mailed copies of the Notice of Hearing to Respondent at his address and email address of record.
The hearing was held at the Office of Administrative Hearings on May 7, 2024.
Respondent did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear personally or through an attorney. Consequently, Respondent did not present any evidence to defend his license.
CONCLUSIONS OF LAW
The Commissioner has jurisdiction over Respondent and the subject matter in this case.
The copies of the Notice of Hearing that the Department mailed to Respondent at his address and email address of record were reasonable and Respondent is deemed to have received notice of the hearing. Ariz. Rev. Stat. §§ 41-1092.04 and 41-1092.05(D).
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 failed to ensure that all advertising regarding the property contained accurate claims and representations and fully stated factual material relating to the information advertised. Respondent misrepresented facts or created a misleading impression regarding the condition of the property. Such conduct constituted a violation of Ariz. Admin. Code R4-28-502(C).
The evidence of record established that Respondent failed to appear for an interview in response to the subpoena issued by the Department. Such conduct constituted a violation of Ariz. Rev. Stat. § 32-2153(A)(24).
The evidence of record established that Respondent failed to respond in the course of an investigation by providing documents or written statements as requested. Such conduct constituted a violation of Ariz. Rev. Stat. § 32-2153(B)(10).
The evidence of record established that Respondent disregarded and violated rules adopted by the Commissioner of the Department. Such conduct constituted a violation of Ariz. Rev. Stat. § 32-2153(A)(3).
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 his unwillingness or inability to appreciate the consequences of his actions. Further, Respondent’s failure to respond to any communications from the Department demonstrate that he is not able to be regulated at this time.
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, May 28, 2024.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Susan Nicolson, Commissioner
Arizona Department of Real Estate
James Rolstead
Attorney General’s Office
[email redacted]
Jacob Winters
[email redacted]
By: OAH Staff