ALJDEC

99A-H1982-REL · Department of Real Estate · 1999-06-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 22, 1999; 9:15 A.M.; Phoenix, Arizona APPEARANCES: Respondent: No Appearance Arizona Department of Real Estate: Moira A. McCarthy, Esq., Assistant Attorney General ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr.

This is a disciplinary proceeding commenced by the Arizona Department of Real Estate (“Department”). 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 PROCEDURAL HISTORY 1. On April 29, 1999, pursuant to Arizona Revised Statutes (“A.R.S.”) § 32-2157, the Department issued a Notice of Hearing and Complaint setting a hearing on June 22, 1999. Pursuant to A.R.S. ' 41-1092.01, the hearing was assigned to the Office of Administrative Hearings. 2. The Department sent by certified mail return receipt requested a copy of the Notice of Hearing and Complaint to Respondent Mr. Jesus W. Briones, Jr. (“Briones”) at his last known address according to the Department’s records, namely, 1006 North Grande Avenue, Tucson, Arizona 85745. Mr. Briones has not provided the Department with any other address. Delivery of the letter was accepted on April 30, 1999, but subsequently on May 4, 1999, the Department was informed that receipt of the letter had been acknowledged in error by the landlord, who informed the Department that Mr. Briones “is no longer renting space in our office and he left us no forwarding address nor do we know where he is.” Department’s Exhibit A. 3. On May 6, 1999, the Administrative Law Judge wrote a letter to Mr. Briones at the above address. The letter was returned as “Refused.” 4. The Complaint alleged grounds existed for the suspension, revocation, denial of renewal, or denial of right to renew of Mr. Briones’ broker’s license pursuant to A.R.S. §§ 32-2153(A)(1), -(A)(3), -(A)(9), -(A)(15), -(A)(18), and -(A)(22), and further, that grounds existed for the imposition of a civil penalty of $1,000.00 for each violation pursuant to A.R.S. § 32-2160.01. 5. On June 22, 1999, a hearing was held. Neither Mr. Briones nor a legal representative appeared at the hearing. The commencement of the hearing was delayed fifteen minutes to give Mr. Briones additional time to travel. Neither the Department nor the Office of Administrative Hearings received any correspondence or telephone calls, prior to the hearing, from Mr. Briones regarding his appearance at the hearing. At the hearing, the Department presented the testimony of Mrs. Anita M. Pennick, the Investigator assigned to this case, and submitted nine exhibits. COUNTS ONE, TWO AND THREE OF THE COMPLAINT 6. Mr. Briones has held an active real estate broker’s license from July 3, 1991, to April 3, 1999, when the license was canceled for change or abandonment of a business location without notice. Department’s Exhibit C states April 3, “1998,” but the correct year is “1999.” The license will expire on July 31, 1999. 7. Paragraphs No. 1 (General Statement) and No. 2 through 11, inclusive (Count One), of the Department’s Complaint are adopted and are incorporated by reference. Department’s Exhibits D and E. 8. Paragraphs No. 12 through 20, inclusive (Count Two), of the Department’s Complaint are adopted and are incorporated by reference. Department’s Exhibits F and G. 9. Paragraphs No. 21 through 26, inclusive (Count Three), of the Department’s Complaint are adopted and are incorporated by reference. Mrs. Pennick conducted the office inspection, and she found very few records in Mr. Briones’ office. Most of the records she found consisted of Mr. Briones’ real estate license and some license records of Mr. Rafael G. Rosales, a former salesperson working for Mr. Briones. Department’s Exhibit H. 10. On April 13, 1999, the Pima County Justice Court issued an arrest warrant for Mr. Briones, as a felony criminal complaint had been issued that date charging Mr. Briones with fraudulent schemes and artifices and theft by control or conversion. CONCLUSIONS OF LAW APPLICABLE LAW The provisions of A.R.S. § 32-2153 applicable to this case are: “A. 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 license issued under the provisions of this chapter if it appears that the holder…within five years immediately preceding, in the performance of or attempt to perform any acts authorized by the license or by this chapter, has:

1. Pursued a course of misrepresentation or made false promises, either directly or through others, whether acting in the role of a licensee or a principal in a transaction. *** 3. Disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner. *** 9. Failed, within a reasonable time, to account for or to remit any monies, to surrender to the rightful owner any documents or other valuable property coming into the licensee's possession which belong to others, or to issue an appraisal report on real property or cemetery property in which the licensee has an interest, unless the nature and extent of the interest are fully disclosed in the report. *** 15. Failed to keep an escrow or trust account or other record of funds deposited with the licensee relating to a real estate transaction. *** 18. Failed to maintain a complete record of each transaction which comes within the provisions of this chapter. *** 22. Demonstrated negligence in performing any act for which a license is required.”

A.R.S. § 32-2160.01(A) states in pertinent part:

“Any broker…who is subject to the jurisdiction of the department and who has violated any provision of this chapter or any rule or order adopted or issued by the commissioner…may be assessed a civil penalty by the commissioner, after a hearing, in an amount not to exceed one thousand dollars for each infraction.”

CONCLUSIONS OF LAW 1. The Commissioner has authority to enter an appropriate order in this matter. A.R.S. §§ 32-2107 and 32-2153. 2. Mr. Briones was notified of the hearing scheduled on June 22, 1999. 3. Being the party seeking a disciplinary sanction, the Department has the burden of proof in this proceeding. 4. The standard of proof on all issues is a preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996), review denied (1997); Troutman v. Valley Nat. Bank of Arizona, 170 Ariz. 513, 826 P.2d 810 (App. 1992). 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). 5. All of the acts involving Mr. Briones occurred within the past five years. 6. As Mr. Briones holds a real estate broker’s license, he is subject to the disciplinary jurisdiction of the Department. 7. The preponderance of the evidence shows that Mr. Briones has violated A.R.S. §§ 32-2153 (A)(1), -(A)(3), -(A)(9), -(A)(15), -(A)(18), and -(A)(22) as described in the Department’s Complaint. 8. The evidentiary record supports the revocation of Mr. Briones’ real estate broker’s license. Revocation is a severe sanction which must be carefully considered before being imposed. The record presented in this case supports this disciplinary sanction. A.R.S. § 32-2153. The acts and omissions of Mr. Briones show lack of truthfulness and dishonesty and constitute substantial breaches of his fiduciary duties as a real estate broker to clients. 9. Grounds exist for the assessment of a civil penalty in the amount of $4,000.00, for the violations contained in Counts I , II and III of the Department’s Complaint. A.R.S. § 32-2160.01(A). RECOMMENDED ORDER It is recommended that the Commissioner revoke Mr. Briones’ real estate broker’s license and assess Mr. Briones a civil penalty in the amount of $4,000.00. SUBMITTED this 22d day of June, 1999.

George A. Schade, Jr. Administrative Law Judge

The original Recommended Decision and Order of the Administrative Law Judge was mailed on June 23, 1999, 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. -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826