ALJDEC - Licensing

24F-185-REL · Department of Real Estate · 2024-07-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

ROBERT MCCORMICK, holder of license number SA679862000,

Respondent

No. 24F-185-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 24, 2024

APPEARANCES: Assistant Attorney General Raya Gardner appeared on behalf of the Arizona Department of Real Estate.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

EXHIBITS ADMITTED INTO EVIDENCE: Arizona Department of Real Estate’s exhibits 1-9 were admitted and Respondent’s Exhibit A was admitted into evidence.

_____________________________________________________________________

FINDINGS OF FACT

On July 19, 2018, the Arizona Department of Real Estate (Department) issued real estate salesperson’s license number SA679862000 to Respondent Robert Respondent. Respondent’s license is scheduled to expire on July 31, 2024 and is currently inactive.

Respondent was last employed as a salesperson with Real Broker AZ, LLC dba Real Broker until January 24, 2024 when he was severed by Shelsi Guthrie, the designated broker for Real Broker, following Respondent’s arrest for theft.

On January 29, 2024, Lisa Miller, a licensed real estate salesperson in Arizona, submitted a complaint to the Department in which she alleged that Respondent had stolen personal property from a residence on which Ms. Miller was the listing agent. The Complaint specified that Respondent was showing the property to the client of another agent during the afternoon of January 18, 2024. After Respondent finished the showing and left with the client, he reentered the property alone and left shortly after with a book.

Included in the Complaint were video recordings from the property owner’s home security cameras that featured two individuals, later identified as Respondent and his client, leave empty handed through the front door of the property at 4:17 p.m. A moment later, Respondent reentered the property empty handed through the front door while the client walked alone down the driveway. At 4:21 p.m., Respondent, carrying a large leather-bound red book under his left arm, exited the property through the front door and continued down the driveway and out of camera’s viewing range.

The owner of the property, who was out-of-state at the time, witnessed these events unfold on the security camera footage shortly thereafter and contacted Ms. Miller to inform her that the individual in the footage had removed from the property a family heirloom, specifically, a collectable red 1960’s Webster’s dictionary with a blue stripe and gold lettering which had been displayed on the shelf of a bookcase in the home office of the residence.

Later in the evening, Ms. Miller went to the property to confirm that the dictionary, which was visible on the bookshelf in photographs of the listed property, was missing. Ms. Miller then started a police report with the Peoria Police Department on behalf of the property owner.

On January 23, 2024, a police officer contacted the property owner via telephone to obtain a statement about the incident. As the beneficiary of a family trust, the property owner confirmed ownership of the property listed for sale where the incident had taken place and all of the contents therein, including the dictionary. The property owner then recounted the details of what she witnessed on the security camera footage, namely, Respondent removing the dictionary, which was valued at approximately $130.00, from the home.

On January 24, 2024, the officer obtained contact information for Respondent from his brokerage and contacted him via telephone. During this conversation, Respondent stated that he recalled the residence and the dictionary, which he acknowledged was still in his possession. Shortly after the conversation, the officer met Respondent at a convenience store in Peoria to collect the dictionary. Respondent turned over the dictionary and indicated that he wanted the dictionary to “use with his family and intended on keeping it.”

The officer attempted to issue a criminal citation for theft to Respondent, however, rescinded the option and took Respondent into custody on the theft charge after Respondent refused to acknowledge and sign the citation.

On February 16, 2024, the Department notified Respondent of the complaint and incidental investigation into the matter and requested a written statement regarding the incident. On February 21, 2024, Respondent responded to the Department with a one-word narrative and a copy of an Order Dismissing Case from the Peoria Municipal Court in Case Number M0750CM2024000101 entered on February 7, 2024 providing that the case against Respondent was dismissed without prejudice.

On or about May 20, 2024, the Department issued a Notice of Hearing and Complaint, setting a hearing in this matter for June 24, 2024.

At hearing, the Department presented the testimony of Steven Hooper.

13. Mr. Hooper was a Senior Investigator with the Department. He testified that he investigated this matter and testified as to the above timeline.

14. Mr. Hooper testified that the above actions by Respondent demonstrated that his license deserved to be revoked as Respondent exhibited immoral, dishonest and illegal activity and that the Department cannot have its licensees exhibiting this kind of behavior.

15. Further, Mr. Hooper testified that the Department has the duty to protect the public as it entrusts the licensees with access to their homes, and theft cannot be tolerated.

16. In addition, Mr. Hooper testified that while Respondent claimed that the criminal matter had been dismissed, it appeared that the case was still open with the Peoria Municipal Court.

17. In closing, the Department argued that Respondent’s license should be revoked and that a civil penalty in the amount of $2,000.00 be ordered against Respondent.

18. The tribunal waited fifteen minutes for Respondent to appear. Respondent failed to appear or otherwise contact the Office of Administrative Hearings to explain his absence therefore, Respondent presented no testimony or evidence to support his position.

CONCLUSIONS OF LAW

Pursuant to A.R.S. Title 32, Chapter 20, the Commissioner has jurisdiction over Respondent and the subject matter in this case. The Arizona legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. Pursuant to A.R.S. §32-2153, the Commissioner has authority to deny, suspend, or revoke the real estate license of a broker or salesperson. Pursuant to A.R.S. §32-2160.01, the Commissioner has authority to assess a civil penalty up to $1,000.00 per violation of the real estate laws and rules.

Pursuant to A.R.S. §41-1092.07(G)(2) and A.A.C. 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 A.A.C. R2-19-119(A).

A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).

The evidence of record established that Respondent demonstrated fraud and/or dishonest dealings when he went back into the house after his client left, and stole the dictionary, in violation of A.R.S. § 32-2153(B)(5) and (B)(7).

Grounds exist to deny, suspend or revoke Respondent’s real estate license pursuant to A.R.S. §§ 32-2153(B)(5) and (B)(7).

7. Grounds exist to assess a civil penalty against Respondent pursuant to A.R.S. § 32- 2160.01(A).

RECOMMENDED ORDER

Based upon the foregoing,

IT IS RECOMMENDED that the Department revoke Respondent’s real estate salesperson license number SA679862000.

IT IS FURTHER RECOMMENDED that the Department issue a civil penalty in the amount of $2,000.00.

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, July 8, 2024.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Susan Nicolson, Commissioner

Arizona Department of Real Estate

Raya Gardner

[email redacted]

Robert McCormick

[email redacted]

By: OAH Staff