ALJDEC

98A-H1911-REL · Department of Real Estate · 1998-11-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 4, 1998; 9:15 A.M.; Phoenix, Arizona APPEARANCES: Arizona Department of Real Estate: Michael T. Denious, Esq., Assistant Attorney General Respondent: No Appearance ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr.

Based upon the evidence presented at the hearing, Administrative Law Judge George A. Schade, Jr. submits this Recommended Decision and Order to the Commissioner of the Arizona Department of Real Estate (“Commissioner”). FINDINGS OF FACT 1. On September 15, 1998, the Assistant Director, Division of Administrative Actions, of the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing and Complaint. Pursuant to Arizona Revised Statutes (“A.R.S.”) ' 41-1092.01, the hearing was assigned to the Office of Administrative Hearings. 2. The Division mailed a copy of the Notice of Hearing to Mrs. Ivie’s last known addresses according to the Department’s records, namely, (1) 329 West Almeria Road, Phoenix, Arizona 85003, and (2) P. O. Box 1209, Veradale, Washington 99037. Neither copy was returned to the Department as being undeliverable. 3. On November 4, 1998, a hearing was held. Neither Mrs. Ivie nor a legal representative appeared at the hearing. The commencement of the hearing was delayed fifteen minutes to give Mrs. Ivie additional time to travel. Neither the Department nor the Office of Administrative Hearings received any correspondence or telephone calls, prior to the hearing, from Mrs. Ivie regarding her appearance at the hearing. At the hearing, the Department presented the testimony of Ms. Carla C. Elgin, Compliance Officer, and submitted seven exhibits. 4. Paragraphs No. 1 through 9, inclusive, of the Department’s Notice of Hearing issued on September 15, 1998, are adopted and are incorporated by reference. 5. The Commissioner’s order issued on December 17, 1997, became final on January 21, 1998. Mrs. Ivie did not file a request for rehearing or seek judicial review. 6. Mrs. Ivie’s real estate salesperson’s license expired on August 31, 1998, and she has not filed an application to renew her license. 7. Since December, 1997, Mrs. Ivie has not provided the Department with any other addresses than those stated in Finding of Fact No. 2. See, Rule R4-28-301(F), Ariz. Admin. Code. CONCLUSIONS OF LAW 1. The Commissioner has authority to enter an appropriate order in this matter. A.R.S. §§ 32-2107, 32-2153(B)(9), and 32-2153(D). 2. Mrs. Ivie held a real estate salesperson’s license, which expired on August 31, 1998, and has not been renewed. 3. The Commissioner’s order suspending this license for one year became final on January 21, 1998. A.R.S. § 41-1092.08. 4. Mrs. Ivie has violated the terms of the Commissioner’s order issued on December 17, 1997. A.R.S. § 32-2153(B)(9). Mrs. Ivie has not paid any part of the civil penalty of $2,500.00 which the Commissioner assessed. Moreover, she has not made any efforts to deal with the Department regarding payment of this civil penalty. 5. The “lapsing or suspension of a license by…order or decision of the Commissioner…shall not deprive the Commissioner of jurisdiction to do any of the following: 1. Proceed with any investigation of or action or disciplinary proceeding against the licensee. 2. Render a decision suspending or revoking the license, or denying the renewal or right of renewal of the license. 3. Assess a civil penalty pursuant to section 32-2160.01.” A.R.S. § 32- 2153(D). 6. The Commissioner “may suspend or revoke a license, deny the issuance of a license or deny the renewal or the right of renewal” of a real estate salesperson’s license “when it appears that the holder…has (9) Violated the terms of any…administrative order…” A.R.S. § 32-2153(B)(9). 7. Grounds exist for the assessment of a civil penalty in the amount of $1,000.00. A “salesperson…who has violated any…order…issued by the commissioner…may be assessed a civil penalty…in an amount not to exceed one thousand dollars for each infraction.” A.R.S. § 32-2160.01(A). RECOMMENDED ORDER It is recommended that the Commissioner revoke Mrs. Ivie’s real estate salesperson’s license and assess her a civil penalty in the amount of $1,000.00. SUBMITTED this 4th day of November, 1998.

George A. Schade, Jr. Administrative Law Judge

The original Recommended Decision and Order of the Administrative Law Judge was mailed on November 4, 1998, for distribution to the parties, to:

Jerry A. Holt Real Estate Commissioner Arizona Department of Real Estate 2910 North 44th Street, Suite 100 Phoenix, Arizona 85018

George A. Schade, Jr.

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