ALJDEC

97A-H1914-REL · Department of Real Estate · 1998-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 14, 1998 APPEARANCES: The Arizona Department of Real Estate (Complainant) was represented by Assistant Attorney General, Moira McCarthy and Kit Rodgers (Respondent) failed to appear. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant issued an original real estate salesperson’s license to Respondent on November 13, 1996. The license expires on November 30, 1998. 2. Evidence of record demonstrated that at least two attempts were made to mail Respondent a copy of the complaint filed in this matter. Initially, service was attempted at the last known address of Respondent, as indicated by the official records of Complainant. Upon being apprised by the post office that said mailing could not be delivered (i.e. “Moved Left No Address”), Complainant made a diligent effort to come up with a new address and was led to believe that Respondent could be contacted at an address in Florida. Thus, despite not having said Florida address on the records of Respondent, a mailing of the complaint was attempted to the Florida address. That mailing came back as an “Insufficient Address.” Complainant’s efforts to serve Respondent with a copy of the complaint are determined to have been sufficient under the law. 3. Notwithstanding the fact that Respondent had been convicted on June 16, 1994, in the State of Alabama, for the crime of negotiating worthless instruments, Respondent’s application for a real estate salesperson’s license indicates that she had never been convicted of a “felony, misdemeanor, or other crime.” Thus, Respondent is found to have submitted a false application for her real estate salesperson’s license and in reliance on said false application Complainant issued her a real estate salesperson’s license. 4. Notice of official records of Complainant reveals that Respondent’s license has already been suspended on July 25, 1997, for her failure to provide certification of completing six hours of continuing education in real estate contract law and contract writing. Thus, under all of the circumstances, Complainant now seeks a revocation of Respondent’s license.

CONCLUSIONS OF LAW

1. The Commissioner has jurisdiction to decide this matter. 2. A.A.C. R4-28-301F requires all persons holding a real estate salesperson’s license to keep on file with Complainant their current address and immediately notify Complainant of any address change. 3. Complainant’s attempts to mail notice of the instant complaint to Respondent’s last known address of record constitutes proper service for the instant Notice of Hearing and Complaint. 4. Respondent’s failure to indicate, on her application for a real estate salesperson’s license, that she had been convicted of the crime of negotiating worthless instruments and to provide all necessary details regarding said criminal conviction constitutes a material misrepresentation and thus, a false application in violation of A.R.S. § 32-2153B (1). 5. The crime of negotiating worthless instruments is determined to be a crime involving intentional dishonesty and fraudulent intent and, as such, should properly be viewed as a crime of moral turpitude within the meaning of A.R.S. § 32-2153B (2). Thus, Respondent violated A.R.S. § 32- 2153B (2). 6. The actions, conduct and past criminal record of Respondent, as shown herein, support a finding that she is not a person of honesty, truthfulness, and good character within the meaning of A.R.S. § 32-2153B (7). Thus, Respondent violated the provisions of A.R.S. § 32-2153B (7). 7. Grounds exist under A.R.S. § 32-2153B (7), (2), and (1) to suspend, revoke, deny renewal or the right of renewal of Respondent’s real estate salesperson’s license pursuant to such statute. The uncontroverted evidence of record would support a finding that Respondent’s real estate salesperson’s license should be revoked. 8. A.R.S. § 32-2160.01 provides authority for the Commissioner of the Department of Real Estate to assess a civil penalty against Respondent for each violation of statue determined herein.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s real estate salesperson’s license be revoked on the effective date of the Order entered in this matter. In view of the severity of the above-described disciplinary sanction, imposition of a civil penalty does not appear to be warranted and thus, it is further recommended that no civil penalty be imposed against Respondent for the violations described herein.

Done this day, January 26, 1998.

_________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of January, 1998, to:

Mr. Jerry Holt, Commissioner Department of Real Estate ATTN: Bonnie Hollon 2910 North 44th Street, Ste. 100 Phoenix, AZ 85018

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826