ALJDEC

98A-H1934-REL · Department of Real Estate · 1998-03-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On March 20, 1998, at 9:00 A.M., a hearing was held to determine if the Respondent’s real estate salesperson’s license should be suspended, revoked, or its renewal be denied. The Department of Real Estate (the “Department”) was represented by Assistant Attorney General Moira McCarthy. The Respondent failed to appear. The record was kept opened until approximately 10:30 A.M. to allow for the appearance of the Respondent or the receipt of any information which would constitute good cause for the Respondent’s absence or delay. No such information was received from or on the behalf of the Respondent. Based upon the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. On or about September 24, 1996, the Department issued a real estate salesperson’s license (the “License”) to the Respondent. This License will expire on September 30, 1998. See State’s Exhibit A.

2. From 1993 to 1996, the Respondent was employed by the Black Canyon City Fire Department as an administrative assistant.

3. In March of 1996, the Arizona Department of Public Safety (“DPS”) completed an investigation into allegations that the Respondent misused public funds while she was employed with the fire department. See State’s Exhibits B & D.

4. On or about February 11, 1997, an Information was filed in State of Arizona v. Danielle M. Dingman, Yavapai County No. CR970077. The Information charged the Respondent with knowingly controlling property of the Black Canyon City Fire Department, to-wit: cash, of a value of $250.00 or more but less than $1,000.00, with the

intent to deprive the Black Canyon City Fire Department of such property. See State’s Exhibit C.

5. On or about February 25, 1997, the Respondent entered into a Plea Agreement in which she plead guilty to Theft, a class 6 felony.

6. On or about April 7, 1997, the Court entered a Judgment finding the Respondent guilty of THEFT, a Class 6 undesignated FELONY, in violation of A.R.S. §§13-1801, 13-1802, 13-701, 13-702 and 13-801. The Court suspended imposition of the sentence and placed the Respondent on three years supervised probation commencing April 7, 1997. See State’s Exhibit E.

7. The Court ordered the Respondent to:

a) be incarcerated in the Yavapai County Jail for a period of 60 days; b) pay restitution for the victim’s economic loss through the Clerk of the Superior Court of Yavapai County in the total amount of $6,941.83 on or before April 7, 1997, or in regular monthly payments of $100.00 commencing May 1, 1997; c) Pay a monthly probation services fee to the Clerk of the Superior Court of Yavapai County at the rate of $40.00 commencing May 1, 1997; d) complete 120 hours of community service work; and e) attend counseling at the direction of the Adult Probation Officer. See State’s Exhibits E & F.

8. The Respondent will remain on supervised probation until April, 2000. See State’s Exhibit F.

9. On February 9, 1998, a Notice of Hearing and Complaint was filed against the Respondent. The Notice of Hearing and Complaint was sent by certified mail to the Respondent's last known address at P.O. Box 712, 33201 Hawasi Trail, Black Canyon City, AZ 85324. See March 11, 1998 Affidavit of Bonnie Hollon, the Department’s Administrative Actions Legal Secretary. The Respondent failed to file an Answer.

10. The Notice of Hearing and Complaint correctly states the date, time and location for the hearing scheduled on March 20, 1998 at the Office of Administrative Hearings. The Respondent has failed to appear and present any evidence on her own behalf.

11. Assistant Attorney General Moira McCarthy requested that the Respondent’s License be revoked and that the Respondent be assessed a $2,000.00 civil penalty.

CONCLUSIONS OF LAW

1. The Department has jurisdiction over the Respondent and the subject matter of this case pursuant to A.R.S. §32-2108, et seq.

2. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent violated provisions of Title 32, Chapter 20 of the Arizona Revised Statutes within the meaning of A.R.S. §32- 2153(A)(3).

3. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has been convicted of a crime of Theft, a class 6 Felony, within the meaning of A.R.S. §32-2153(B)(2).

4. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent engaged in substantial misrepresentations within the meaning of A.R.S. §32-2153(A)(1) and (B)(3).

5. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent was found guilty of conduct which constitutes fraud or dishonest dealings within the meaning of A.R.S. §32- 2153(B)(5).

6. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has not shown that she is a person of honesty, truthfulness and good character within the meaning of A.R.S. §32-2153(B)(7).

7. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has violated state laws, regulations and rules involving theft, substantial misrepresentations and dishonest dealings within the meaning of A.R.S. §32-2153(B)(10).

8. Based upon the foregoing, the undersigned Administrative Law Judge finds that the Respondent's real estate salesperson's license should be revoked pursuant to provisions of A.R.S. §32-2153(A) and (B).

9. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that grounds exist to impose a civil penalty against the Respondent not to exceed $1,000.00 per violation of Title 32, Chapter of the Arizona Revised Statutes.

10. The undersigned Administrative Law Judge finds that the Respondent has committed six (6) violations pursuant to A.R.S. §§32-2153(A)(3), (B)(2), (B)(3), (B)(5), (B)(7) and (B)(10). Therefore, the civil penalty may not exceed $6,000.00 pursuant to A.R.S. §32-2160.01(A). The undersigned Administrative Law Judge adopts the Assistant Attorney General’s recommendation to impose a $2,000.00 civil penalty against the Respondent.

RECOMMENDED DECISION

In view of the foregoing, the undersigned Administrative Law Judge recommends that the Respondent’s real estate salesperson’s license be revoked and that the Respondent be assessed a $2,000.00 civil penalty. The civil penalty shall be paid by money order or cashier’s check made payable to the Arizona Department of Real Estate and is due on or before the date that this Order becomes final.

Done this day, March 25, 1998.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

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

By ___________________________ -----------------------

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