ALJDEC

98A-H1960-REL · Department of Real Estate · 1998-08-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On August 26, 1998, at 9:00 a.m., a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-2153(A). Assistant Attorney General Michael Denious represented the Arizona Department of Real Estate (the “Department”). The Respondent failed to appear. The record was kept open until approximately 10:00 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. The Department issued Natalie J. Hamlin (the “Respondent”) an original real estate broker’s license on June 11, 1993. See State’s Exhibit A. This license will expire on June 30, 1999. Id. However, Assistant Attorney General Michael Denious advised this tribunal that the Respondent’s license was canceled because the Respondent failed to update the Department on a change of business address.

2. On or about April 3, 1997, the Department received a complaint from Attorney George H. McKay (“McKay”) of Community Legal Services. See State’s Exhibit B. Attorney McKay filed the complaint on behalf of Shelly Cooper (“Cooper”). Id.

3. The Respondent acted as Cooper’s real estate agent for Cooper’s purchase of real property and a mobile home located in the Cordes Lakes Subdivision, Yavapai County, Arizona. See State’s Exhibit B.

4. The Respondent failed to provide Cooper with a copy of the purchase contract or other documentation relating to Cooper’s purchase of the real property and mobile home. See State’s Exhibit B.

5. McKay and Cooper have made repeated attempts to obtain the aforementioned documents from the Respondent. See State’s Exhibit B. The Respondent refused to release them. Id.

6. On or about April 9, 1997, the Department sent the Respondent a copy of McKay’s complaint. See State’s Exhibit C. The Department also requested a response (supported by documentation) to the allegations. Id. The Respondent failed to respond.

7. On or about May 14, 1997, the Department sent the Respondent a second letter requesting the documents and a notarized statement by May 27, 1997. See State’s Exhibit D. The second letter was sent by certified mail (return receipt requested). See State’s Exhibit E. The Respondent signed the receipt on May 21, 1997. Id. However, the Respondent failed to respond to the Department’s requests.

8. On or about August 3, 1997, the Department issued a subpoena duces tecum to the Respondent requiring her to produce all documents pertaining to the Cooper transaction by August 15, 1997. See State’s Exhibit F. This subpoena duces tecum was personally served on the Respondent. See State’s Exhibit G. The Respondent failed to comply.

9. On or about January 8, 1998, the Department applied to the Maricopa County Superior Court for an order enforcing the aforementioned subpoena.

10. The Superior Court issued an order requiring the Respondent to appear and show cause for her failure to comply with the subpoena. See State’s Exhibit H. The Respondent failed to appear. See State’s Exhibit I. The Superior Court ordered that a civil arrest warrant be issued for the Respondent’s arrest. Id.

11. The Respondent failed to appear for the disciplinary hearing scheduled on August 26, 1998, at 9:00 a.m. at the Office of Administrative Hearings located at 1700 West Washington Street, Suite 602, Phoenix, Arizona. The Notice of Hearing correctly states the date, time and place of this hearing. The Notice of Hearing was sent by certified mail to the Respondent at 210 Mountainaire, Yarnell, Arizona 85362 (as stated in the Notice of Hearing received by the Office of Administrative Hearings). The undersigned Administrative Law Judge finds that the Respondent was properly noticed for this disciplinary hearing.

12. Assistant Attorney General Michael Denious requested that the Respondent’s real estate broker’s license be revoked and that the Respondent be fined $2,000.00.

13. The undersigned Administrative Law Judge finds that the Respondent failed to deliver legible copies of the documents pertaining to Cooper’s purchase of the real property and mobile home located at the Cordes Lakes Subdivision in Yavapai County, Arizona. The undersigned Administrative Law Judge further finds that the Respondent failed upon demand to produce the aforementioned documents for inspection by the Commissioner or the Commissioner’s representative.

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 Department has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It "is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990).

3. The Respondent has failed to appear and present evidence supporting her position.

4. 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).

5. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has violated Arizona Administrative Code R4-28-802(A) as set forth in Findings of Fact #13.

6. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has violated Arizona Administrative Code R4-28-1101(C) as set forth in Findings of Fact #13.

7. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has violated A.R.S. §32- 2153(A)(17) as set forth in Findings of Fact #13.

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

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 four (4) violations pursuant to A.R.S. §§32-2153(A)(3), (A)(17), A.A.C. R4-28-802(A) and A.A.C. R4-28-1101(C). Therefore, the civil penalty may not exceed $4,000.00 pursuant to A.R.S. §32-2160.01(A).

RECOMMENDED DECISION

In view of the foregoing, the undersigned Administrative Law Judge recommends that the Respondent’s real estate broker’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, August 31, 1998.

_________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 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