ALJDEC

99F-O989157S-BFS · Department of Building and Fire Safety · 1999-06-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 30, 1999. APPEARANCES: COMPLAINANT: Assistant Attorney General Victoria Mangiapane represented the Department of Building and Fire Safety, Office of Administration. RESPONDENT: Earlena Lawrence did not appear, nor did anyone on her behalf.

ADMINISTRATIVE LAW JUDGE: Anthony Halas _____________________________________________________________________ Hearing was convened as scheduled on June 30, 1999, at 1:30 p.m. to determine if there were grounds for disciplinary action against Respondent Earlena Lawrence by the Department of Building and Fire Safety (Department). Based on the testimony and evidence presented, and administrative notice of certain matters of record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made to the Director of the Department: // // // //

FINDINGS OF FACT

1. On the basis of the timely answer filed by Respondent Earlena Lawrence (Lawrence) to the CITATION AND COMPLAINT issued in Case 98-9/157S on April 22, 1999, hearing was duly-scheduled and convened on June 30, 1999, at 1:30 p.m., before the undersigned administrative law judge of the Office of Administrative Hearings. 2. Respondent Lawrence did not appear at the hearing, nor did anyone on her behalf, nor was any information received to constitute good cause for her absence, although the record was held open until 2:30 p.m. 3. At hearing, and through counsel, the Department provided the testimony of its investigator and auditor, Carla Anderson (Anderson), and offered seven exhibits, all of which were marked and admitted. 4. The Department offered Exhibit 1 to verify Respondent’s receipt of the Notice of Hearing, and it is found that Lawrence was provided and received actual notice of this proceeding, such that her due process right to receive notice and be provided the opportunity to be heard has been met and satisfied. 5. Respondent currently holds Sales License S07275 (Exhibit 2) issued by the Department on June 9, 1994; said sales license is currently in the status of “non-renew” given her failure to meet the administrative requirements for payment of the renewal fee on or before the due date of June 9, 1999. On the basis of Anderson’s testimony, and A.R.S. § 41-2177, it is found that such status may continue for up to one year, during which time the license renewal may be effectuated simply by the payment of the renewal fee. 6. As President and Qualifying Party for Golden East Home Sales, Inc., Respondent also holds Dealer’s License 6684, Class D-12, which license was suspended April 8, 1999 by Orders of the Director of the Department in Case Nos. 98-9/132 and 98-9/018 (Exhibits 4 and 5), and on April 21, 1999 by Order of the Director in Case No. 98-9/009 (Exhibit 3). 7. Those suspensions of Respondent’s Dealer’s License were ordered by the Director for violations occurring under the authority of that license, and duly charged and proven, of A.R.S. §§ 41-2180.A, .I, and .L, arising from misuse of earnest monies deposited with, or in the control of Respondent, by buyers of manufactured housing. 8. Those suspensions were conditioned upon Respondent’s restitution to the buyer or reimbursement of Recovery Fund monies paid out to those buyers for the loss of their earnest money deposits, but based on the uncontroverted evidence and testimony of record through the date of the hearing in this matter, it is found that no such restitution or reimbursement has been made. 9. The Department now seeks revocation of Respondent Lawrence’s Sales License No. S07275 for a lack of good character and reputation, pursuant to A.R.S. § 41-2175.E. The Department alleges that Respondent’s acts in violation of A.R.S. § 41-2180.A,.I, and .L establish grounds for such revocation in light of A.R.S. § 41-2186.A.8, in that the violations of A.R.S. § 41-2180.A and suspension of Respondent’s Dealer’s License demonstrate the fact of a lack of good character and reputation, with revocation of the Sales License the necessary means of protecting the public interest from the likelihood that Respondent would continue to commit similar such violations in further demonstration of a lack of good character and reputation. 10. Although issued subsequent to the CITATION AND COMPLAINT at issue herein, and therefore not identified in the specific violations cited therein, the Department also requested that for purposes of aggravating circumstances, administrative notice be taken of certain other Orders made by the Director: to wit; Case Nos. 98-9/013, issued May 10, 1999 (Exhibit 6) and 98-9/014, also issued May 10, 1999 (Exhibit 7), each of which suspended Respondent’s Dealer’s License conditioned upon her reimbursement of monies paid out pursuant to Recovery Fund claims, which reimbursement the record demonstrates has not been made. 11. On the basis of the evidence presented, the undersigned finds that the actions of Respondent Earlena Lawrence in misusing earnest monies resulting in violations of A.R.S. §§ 41-2180.A, .I, and .L, and without restitution or reimbursement of those monies, demonstrates a lack of the good character and reputation required by A.R.S. § 41-2175.E, the subsequent discovery of which fact would have been grounds to deny the issuance or renewal of the license pursuant to A.R.S. § 41 2186.8, and of sufficient degree to warrant revocation of Respondent’s sales license No. S07275.

CONCLUSIONS OF LAW

1. In this matter the Department of Building and Fire Safety, as Complainant, has the burden of proof, and the standard required of that 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”, Udall, Arizona Law of Evidence, §5 (1960), or, “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, at 1182, (6th ed. 1990). 2. Despite appropriate notice, Respondent Earlena Lawrence failed to appear and present any evidence. 3. The undersigned finds and concludes that the preponderance of the evidence demonstrates that Respondent has violated A.R.S. § 41-2186.8, as set forth above, and that sufficient grounds do exist to revoke Respondent’s Sales License No. S07275. // // // // RECOMMENDED DECISION

Based upon the foregoing, IT IS RECOMMENDED that, commencing on the effective date of the Director’s Order to be entered in this matter, that Respondent’s Sales License No, S07275 be revoked. Done this day, July 1, 1999.

______________________________________ Anthony Halas Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Department of Building & Fire Safety N. Eric Borg, Director E. Virginia, Suite 100 Phoenix, AZ 85004 ATTN: Michelle M. Castaneda

By ___________________________

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