ALJDEC decisions subject to certification as final

07F-6823-BOA · Board of Appraisal · 2007-12-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 27, 2007 APPEARANCES: Efrain E. Orozco on his own behalf; Assistant Attorney General Mary Delaat-Willams for the Arizona Board of Appraisal ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ 1. On June 20, 2007, Efrain E. Orozco, (“Mr. Orozco”) submitted to the Arizona Board of Appraisal (“Board”) an application for a Residential Real Estate Appraiser license (“Application"). 2. Mr. Orozco answered “No” to Question 11 of the Application, which asked: “Have you ever been charged with, convicted of or pled nolo contendere (no contest) to a criminal offense, other than a minor traffic violation, in this or in any other jurisdiction (i.e., locality)? You must answer “YES” even if you received a pardon, the conviction was set aside, the records were expunged, your civil rights were restored, and whether or not a sentence was imposed or suspended.” 3. Mr. Orozco wrote as an explanation to his response to Question 11 of the Application that it was “So Long Ago, unable to provide docs At the Time of Application.” 4. Mr. Orozco signed the Application certifying under penalty of perjury under the laws of the State of Arizona that “the foregoing answers and statements given in this application are true and correct.” 5. Mr. Orozco testified that subsequent to the submission of the Application to the Board, a staff person employed by the Board contacted him to obtain clarification in writing as to Mr. Orozco’s response to question 11 on the Application. 6. As a result of such contact, Mr. Orozco submitted a letter to the Board dated August 2, 2007 (Exhibit 2) wherein Mr. Orozco indicated that he had searched the State of Florida criminal records and found no record of previous charges against him. Mr. Orozco disclosed in that letter that in 1997 or 1998 he was cited for driving with a suspended license, which is a misdemeanor. He further stated that he is “not aware of any other citations on my record and I know for fact there are no outstanding charges against me.” Mr. Orozco wrote that the acts were indiscretions of his youth and not felonious activities and asserted he has changed his life around. 7. The evidence of record established that on February 8, 2001, in the Circuit and County out of the Eleventh Judicial District of Miami-Dade County, in Case Number M00037472, Mr. Orozco was convicted of the crime of petty larceny, theft, a misdemeanor. The conviction was established by a certified document issued by the Clerk of the Circuit and County Courts In and For Miami-Dade County (Exhibit 4) showing that the date of the arrest/citation was June 24, 2000 and disposition date was February 8, 2001. The actual court documents are no longer available because the court’s retention period for misdemeanor records is five years. At hearing, Mr. Orozco admitted to having been convicted of petty larceny, theft, in the state of Florida. 8. Deborah G. Pearson (“Ms. Pearson”), the Executive Director of the Board, testified: a. The Board’s application review committee reviewed the Application and forwarded the Application to the Board with a recommendation that it be denied on the basis of Mr. Orozco’s failure to disclose his criminal history. Notice of the meeting when the committee reviewed the Application and reached the denial recommendation was provided to Mr. Orozco but he did not attend that meeting. b. Subsequent to the Committee denial recommendation, the Board met and discussed the basis for the application review committee’s recommendation to deny the Application. After the discussion, the Board voted to deny the Application. c. Mr. Orozco was notified of the August 16, 2007 Board decision to deny the Application based on his failure to meet the minimum criteria for licensure set forth in A.R.S. §§ 36-3620(A), 32- 3631(A)(1) and 32-3631(A)(8). d. After issuance of the denial letter, Mr. Orozco appealed the Board’s determination regarding the Application (See Exhibit 3), resulting in the instant hearing being set before the Office of Administrative Hearings. 9. Mr. Orozco testified that he did not disclose to the Board the above- mentioned conviction for petty larceny because he was unable to obtain documents regarding that conviction and did not remember it at the time he submitted the Application. 10. During cross-examination, Mr. Orozco acknowledged that he had other misdemeanor convictions in the State of Florida that he did not disclose to the Board either in the Application or in his subsequent explanation letter to the Board. He testified as to the nature of the convictions and did not explain why he recalled the convictions during the hearing but did not disclose them to the Board other than to state that he was not able to obtain either police or court documents pertaining to the misdemeanor convictions. 11. Mr. Orozco testified that he search the records of the State of Florida on-line for such documents and also called the police department in the location where he was convicted of driving while on a suspended license but was not successful in obtaining any documents. He learned that Florida’s retention period for misdemeanor convictions is five years and the convictions occurred more than five years ago. 12. Mr. Orozco attempted to explain why he did not disclose the petty larceny conviction to the Board by stating that when he had switched sunglasses in a store on his way out, he had been stopped and issued a citation. 13. Mr. Orozco testified that all of his convictions were misdemeanor convictions and he did not spend one day in jail. 14. Mr. Orozco attempted to explain that he was a different person at the time when the convictions occurred, that the period of his life when the convictions and acts underlying the convictions occurred is hazy to him and he can not recall detailed information regarding the convictions. Yet, Mr. Orozco was able to recollect and disclose to the Board during the application process his conviction for driving on a suspended license in either 1997 or 1998 despite not having any documentation regarding that conviction. 15. The Administrative Law Judge finds that Mr. Orozco has a history of misdemeanor convictions that were not disclosed to the Board during the application process and that Mr. Orozco’s explanation as to his failure to disclose such information to the Board is not convincing. It appears to the Administrative Law Judge that Mr. Orozco may have believed that because court documents did not exist pertaining to those convictions that the Board would not learn of them. 16. Mr. Orozco’s ability to remember at hearing misdemeanor convictions that were not disclosed to the Board shows that he was not truthful to the Board when he completed and submitted the Application. 17. Ms. Pearson testified that despite not having court documents relating to Mr. Orozco’s misdemeanor convictions that were addressed at hearing, the Board, through its criminal history background search, learned of such criminal history and considered the misdemeanor convictions and Mr. Orozco’s non-disclosure in reaching the determination to deny the Application. 18. Mr. Orozco testified that the acts underlying the misdemeanor convictions were made when he was younger and immature. He testified that he moved away from Florida and changed his life around. Mr. Orozco represented that he is not the same person he was when he committed the criminal activities underlying the convictions. 19. Mr. Orozco’s wife also testified that Mr. Orozco has changed and turned his life around. 20. Mr. Orozco submitted two letters of character by two licensed appraisers with whom he has trained as an intern. One of the appraisers, Jerad Hunsaker (“Mr. Hunsaker”), contacted Mr. Orozco and asked him to move from Las Vegas Nevada to Phoenix to open an appraisal office. 21. In Mr. Hunsaker’s letter (Exhibit A), he stated that Mr. Orozco’s persistence and desire in becoming an appraiser is evidence of his good character. He believes Mr. Orozco to be a hard working and honest person. 22. In the other letter of character (Exhibit B), Christopher Uber stated that Mr. Orozco has grown since he met him and become one of the most ethical and responsible persons he knows. 23. Other than his testimony and that of his wife, Mr. Orozco did not present any character witnesses to testify at the hearing. CONCLUSIONS OF LAW 1. A.R.S. § 32-3620 (A) provides that “[t]he board may deny the issuance of a license or certificate as a state licensed or state certified appraiser to an applicant who has been convicted of a felony or on any of the grounds prescribed in this chapter.”

2. A.R.S. § 32-3631(A) provides:

The rights of an applicant or holder under a license or certificate as a state licensed or state certified appraiser may be revoked or suspended or the holder of the license or certificate may otherwise be disciplined in accordance with this chapter on any of the grounds set forth in this section. The board may investigate the actions of a state licensed or state certified appraiser and may revoke or suspend the rights of a license or certificate holder or otherwise discipline a state licensed or state certified appraiser for any of the following acts or omissions: * * * 1. Procuring or attempting to procure a license or certificate pursuant to this chapter by knowingly making a false statement, submitting false information, refusing to provide complete information in response to a question in an application for a license or certificate or committing any form of fraud or misrepresentation. * * * 8. Wilfully disregarding or violating any of the provisions of this chapter or the rules of the board for the administration and enforcement of this chapter.

3. Mr. Orozco has the burden of proving by a preponderance of the evidence that the denial of the application should be reversed. See A.R.S. § 41-1092.07(G)(1); and A.A.C. R2-19-119. 4. 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. The weight of the evidence of record established that Mr. Orozco was convicted of petty larceny, theft, and has had other misdemeanor convictions that he willfully did not disclose to the Board during the application process. 6. The Board’s application for licensure requires applicants to be truthful and honest in responding to the questions on the application. 7. The above-mentioned letters of character are given little weight because the authors of the letters were not present to be questioned by the Board’s counsel or by the Administrative Law Judge and could not be observed by the Judge. 8. The weight of the evidence of record established that pursuant to A.R.S. §§ 32-3620(A), and 32-3631(A)(1) and (8), grounds exist for the Board to deny the Application. 9. Mr. Orozco failed to meet his burden of proving by a preponderance of the evidence that he is qualified to hold a real estate appraiser license or that the Board’s determination to deny the Application should be reversed. ORDER Based on the above, the Board’s denial of the Application is affirmed. Done this day, December 5, 2007.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Board of Appraisal Deborah G. Pearson, Executive Director 1400 West Washington, Suite 360 Phoenix, AZ 85007

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

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