ALJDEC decisions subject to certification as final

04F-LI-184-REL · Department of Real Estate · 2005-06-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 25, 2005. APPEARANCES: Petitioner Jeffrey Abdin appeared on his own behalf (by telephone.) Assistant Attorney General Randy Delgado II appeared on behalf of the Arizona Department of Real Estate. ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________

Jeffrey Abdin appealed the Arizona Department of Real Estate’s decision to deny his application to renew his real estate salesperson’s license. Based on the evidence of record, the Administrative Law Judge (“ALJ”) makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT 1. On June 1, 1977, the Arizona Department of Real Estate (the “Department”) issued a real estate salesperson’s license to Petitioner Jeffrey Abdin (“Mr. Abdin”). State’s Exhibit K. 2. On November 19, 2004, Department received Mr. Abdin’s renewal application for real estate salesperson’s license from Mr. Abdin. State’s Exhibit G. 3. In a letter dated March 24, 2005, the Department notified Mr. Abdin of its intent to deny the renewal application because he did not meet the qualifications for

licensure as set forth in A.R.S. §§ 32-2123 and 32-2153. The Department stated, without limitation, that its denial determination was based on convictions for two counts of misdemeanor DUI (August 2, 2001 and August 3, 2001), the second of which Mr. Abdin did not disclose on his renewal application filed June 27, 2003. State’s Exhibit I. 4. On March 28, 2005, Mr. Abdin appealed the Department‘s decision. 5. On May 5, 2005, the Department issued an Amended Notice of Hearing, pursuant to which the Department alleged: (1) Mr. Abdin violated the provisions of Title 32, Chapter 20 of the Arizona Revised Statutes, and the Commissioner’s Rules in violation of A.R.S. § 32-2153(A)(3); (2) Mr. Abdin filed false and misleading applications in violations A.R.S. § 32- 2153(B)(1); (3) Mr. Abdin had been convicted of Aggravated DUI and Aggravated Assault (both felonies) and multiple counts of DUI, a crime of moral turpitude, in violation of A.R.S. § 32- 2153(B)(2); (4) Mr. Abdin’s actions and convictions demonstrated that he is not a person of good character, in violation of A.R.S. § 32-2153(B)(7); and (5) Mr. Abdin violated an Arizona law involving violence against another person, a violation of A.R.S. § 32-2153(B)(10). The Department alleged, based on the foregoing, that grounds existed to deny Mr. Abdin’s application, and to impose civil penalties against Mr. Abdin. 6. In accordance with the aforementioned Notice of Hearing, the Administrative Law Judge convened the hearing in this matter on May 25, 2005 at 1:30 p.m. Mr. Abdin’s Convictions 7. The Department submitted into evidence documents showing that on July 24, 2001, Mr. Abdin was convicted of Aggravated DUI – Minor Present in Vehicle a class 6 undesignated felony; and Possession of Drug Paraphernalia a class 1 misdemeanor. These convictions were for an arrest that occurred on April 9, 2000. Mr. Abdin was placed on 2 years probation and ordered to serve 10 days in jail, of which 9 were to be suspended. State’s Exhibit C. 8. The Department submitted into evidence documents showing that on August 2, 2001, Mr. Abdin pled guilty to DUI and DUI with A.C. of .10 or higher. These

convictions were for an arrest that occurred on April 6, 2000. Mr. Abdin was sentenced to 10 days in jail (with 9 suspended) and fined $633.00. State’s Exhibit D(1)(b). 9. The Department submitted into evidence documents showing that on August 3, 2001, Mr. Abdin was convicted of DUI and DUI over 0.10. These convictions were for an arrest that occurred on October 6, 2000. Mr. Abdin was fined $250.00 and sentenced to 10 days in jail (with 9 days suspended for completion of alcohol screening.) State’s Exhibit E(5). 10. The Department submitted into evidence documents showing that on November 29, 2004, Mr. Abdin was convicted of Aggravated DUI, a class 4 felony, and Aggravated Assault, a class 5 felony. These convictions were for an arrest that occurred on September 27, 2002. Mr. Abdin was fined $900.00 and sentenced to seven months in jail for the Aggravated DUI and two months in jail for the Aggravated Assault. State’s Exhibit H. Failure to Disclose and Provide the Required Documents 11. On June 21, 2001 Mr. Abdin submitted a renewal application on which he checked “No” in response to the question have you been convicted of a felony or misdemeanor since the issuance of your current or most recent license. State’s Exhibit A. 12. On August 2, 2001, the Department received a letter from Mr. Abdin in which he stated he had been convicted of DUI on approximately July 24, 2001. State’s Exhibit B. 13. On August 21, 2001, the Department sent Mr. Abdin a letter notifying him that he was required to provide certain documents, including certified copies of the police report and file information from the court, to complete his disclosure related to the July 24, 2001 conviction. State’s Exhibit B(2). 14. On January 16, 2002, the Department sent Mr. Abdin a follow up letter stating that it had not received the information required to complete his disclosure related to the July 24, 2001 conviction. State’s Exhibit B(1). 15. At the hearing, Mr. Henry Soza, a senior investigator with the Department, testified that he had reviewed the Department’s file pertaining to Mr. Abdin and that file

did not have copies of the documents that Mr. Abdin was required to send to the Department to complete his August 2, 2001 disclosure of the July 24, 2001 conviction for DUI. False and Misleading Application 16. On June 27, 2003, the Department received an application for renewal of real estate salesperson’s license from Mr. Abdin. On the June 27, 2003 renewal application Mr. Abdin checked “Yes” in response to the question have you been convicted of misdemeanor DUI since the issuance of your current or most recent license. State’s Exhibit F. 17. On the June 27, 2003 renewal application Mr. Abdin checked “No” in response to the question have you been convicted of a felony since the issuance of your current or most recent license. State’s Exhibit F. 18. Mr. Soza testified that the July 24, 2001 conviction for Aggravated DUI – Minor Present in Vehicle was a class 6 undesignated felony. That felony was not reclassified as a misdemeanor until October 1, 2003. Therefore, Mr. Abdin’s June 27, 2003 renewal application was incorrect because there had been a felony conviction since the issuance of Mr. Abdin’s most recent license. MR. ABDIN’S TESTIMONY 19. Mr. Abdin appeared telephonically at the hearing because he is currently serving a seven month sentence imposed for the November 29, 2004 conviction of Aggravated DUI, a class 4 felony. 20. Mr. Abdin testified that he would be released on June 15, 2005, at which time he will be on probation for four years. He stated that the court supervised probation would be a benefit to the Department as it would provide assurance that someone was monitoring him. 21. Mr. Abdin testified that he had not actually assaulted anyone and his assault conviction was part of a plea bargain that led to the November 29, 2004 conviction. 22. Mr. Abdin testified that he is down, but grateful to be in jail because he has found a higher power and education has led him to understand the damage that his

actions have caused himself. He has been involved in 500 hours of rehabilitation programming. Mr. Abdin testified that he admits that he needed help before he went to jail and will continue to need help after he is released. 23. Mr. Abdin testified that he is willing to do whatever the Department requires to maintain his license, which he needs to support his children. He felt that to deny him that license would constitute a second punishment on top of the jail time. 24. Mr. Abdin testified that he never sold real estate while under the influence of alcohol. 25. Mr. Abdin testified that on October 1, 2003, the July 24, 2001 conviction for Aggravated DUI – Minor Present in Vehicle was reclassified from a class 6 undesignated felony to a misdemeanor. 26. The ALJ was unable to view Mr. Abdin’s demeanor at hearing because he appeared by telephone. Having listened to his testimony, the ALJ finds that Mr. Abdin recognizes that he was in denial about his drinking problem prior to being incarcerated for the November 2004 conviction. However, the ALJ finds that Mr. Abdin has tended to minimize some of his actions. For example, Mr. Abdin did not accept responsibility for his assault conviction. 27. The ALJ is unable to make any finding that Mr. Abdin is, at present, a person of sufficiently good character to warrant the granting the renewal of his real estate salesperson’s license.

CONCLUSIONS OF LAW 1. In this proceeding, the Department bears the burden to prove by a preponderance of the evidence that its denial of his renewal application for a real estate salesperson’s license was justified. See A.R.S. § 41-1092.07(G) and Arizona Administrative Code R2-19-119. 2. 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). 3. Mr. Abdin is currently incarcerated for a felony conviction and he will be on probation for four years when he is released. The Department shall not renew the

license of a person who has been convicted of a felony offence and is incarcerated or on probation for that offence. See A.R.S. § 32-2130(E). Therefore, the Department has shown by a preponderance of evidence that good cause exists for its denial of Mr. Abdin’s renewal application. 4. The evidence demonstrated that Mr. Abdin was convicted on four separate occasions for DUI and/or Aggravated DUI, which are crimes of moral turpitude under the decision of the Arizona Supreme Court in Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966). Thus, Mr. Abdin has violated A.R.S. § 32-2153(B)(2). 5. The Administrative Law Judge further concludes that Mr. Abdin’s multiple convictions, and the conduct underlying those convictions, are substantial and persuasive evidence that Mr. Abdin is currently not a person of good character, in violation of A.R.S. § 32- 2153(B)(7). 6. The preponderance of evidence also shows that Mr. Abdin did violate an Arizona law involving violence against another person, because he has been convicted of Aggravated Assault, which is a violation of A.R.S. § 32-2153(B)(10). 7. The preponderance of evidence shows that Mr. Abdin’s June 27, 2003 renewal application was incorrect because he checked “No” in response to the question about whether he had been convicted of a felony, in disregard of the July 24, 2001 conviction for Aggravated DUI – Minor Present in Vehicle, which was a class 6 undesignated felony. Therefore, Mr. Abdin filed a false and misleading application in violation A.R.S. § 32-2153(B)(1). 8. The evidence also shows that Mr. Abdin did not provide all the required documents the Department requested related to his August 2, 2001 conviction, which is a violation of A.A.C. R4-28-301. Therefore, Mr. Abdin has violated A.R.S. § 32-2153(A)(3). 9. Based on the foregoing, proper grounds exist for the Department to deny Mr. Abdin’s application for a real estate salesperson’s license. 10. The Administrative Law Judge has considered Mr. Abdin’s arguments, but concludes that Mr. Abdin failed to present any substantial or persuasive evidence that the Department’s decision to deny his application for a real estate salesperson’s license

should be reversed. Although Mr. Abdin urged that while he had been incarcerated he has learned and grown, he offered no evidence other than his own testimony to support that assertion. In the absence of such evidence, and in view of both the recent and the serial nature of Mr. Abdin’s convictions, the Administrative Law Judge concludes that Mr. Abdin has not demonstrated that he meets the meet the qualifications for licensure as set forth in A.R.S. §§ 32-2123 and 32-2153. 11. In view of the foregoing, and in light of Mr. Abdin’s demonstrated violations of A.R.S. § 32-2153, the Administrative Law Judge concludes that the Department’s decision to deny Mr. Abdin’s application for a real estate salesperson’s license should be affirmed. RECOMMENDED ORDER The Administrative Law Judge recommends that the Department’s decision to deny Mr. Abdin’s November 19, 2004 application for a real estate salesperson’s license be affirmed.

Done this day, June 13, 2005. ______________________________________ Thomas Shedden Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2005, to:

Elaine Richardson, Commissioner Department of Real Estate 2910 North 44th Street, Suite 100 Phoenix, AZ 85018

By ___________________________

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