ALJDEC decisions subject to certification as final

12F-DI-252-REL · Department of Real Estate · 2013-05-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2013 APPEARANCES: No one appeared for Carlos G. Luna; Assistant Attorney General Lynette Evans appeared for the Department of Real Estate ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On March 19, 2013, the Arizona Department of Real Estate issued a “Notice of Hearing & Complaint” setting the above-captioned matter for hearing at 1:00 p.m. May 9, 2013, at the Office of Administrative Hearings in Phoenix, Arizona. 2. In the Complaint, the Department alleged that Respondent Carlos G. Luna violated A.R.S. §§ 32-2153 (A)(3), (B)(2) and (B)(10), and A.A.C. R4-28-301(F) and R4-28-303(D). 3. No representative for Mr. Luna appeared by 1:20 p.m. and the hearing was convened in his absence at that time. The Department presented the testimony of Robin King, its Investigation, Auditing, and Developmental Services Manager. 4. On January 29, 2007, Mr. Luna and the Department entered a Consent Order under which Mr. Luna was granted a provisional salesperson’s License (Number SA578254000). 5. On January 16, 2009, Mr. Luna’s License was renewed. As of that date, the License was on inactive status. 6. On December 17, 2010, Mr. Luna was convicted of Negligent Homicide, a Class 4 Felony, in violation of A.R.S. § 13-1102. Mr. Luna was sentenced to 2.5 years in prison, with credit for 340 days served. 7. On December 19, 2011, Mr. Luna was released from prison and placed on supervised probation. 8. Mr. Luna did not provide the Department with timely notification of his felony conviction. 9. On February 28, 2012, the Department issued an “Order of Summary Suspension and Notice of Opportunity for Hearing” suspending Mr. Luna’s License as of that date. 10. Mr. Luna did not request a hearing related to the Summary Suspension Order. 11. Mr. Luna’s License lapsed on January 31, 2013. 12. The Department requested that Mr. Luna’s License be revoked and that a $2,000.00 civil penalty be imposed on Mr. Luna for the alleged violations of A.R.S. §§ 32-2153(B)(2) and (B)(10). The Department did not request a civil penalty for Mr. Luna’s alleged violations of A.R.S. § 32-2153(A)(3), A.A.C. R4-28- 301(F) and R4-28-303(D). CONCLUSIONS OF LAW 1. The Department bears the burden of persuasion. A.R.S. § 41- 1092.07(G). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.A.C. R2-19-119. 3. A preponderance of the evidence is “[e]vidence 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). 4. The Department’s Commissioner has authority to impose discipline on a license that has lapsed by operation of law. A.R.S. § 32- 2153(E). 5. “A person commits negligent homicide if with criminal negligence the person causes the death of another person, including an unborn child.” A.R.S. § 13-1102. 6. “‘Criminal negligence’ means … that a person fails to perceive a substantial and unjustifiable risk …. of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.” A.R.S. § 13-105(10)(d). 7. Mr. Luna was convicted of Negligent Homicide, a felony. Consequently he has violated A.R.S. § 32-2153(B)(2). 8. Based on Mr. Luna’s conviction for Negligent Homicide, the Department alleges that Mr. Luna violated a state law that involves violence against another person, which is a violation of A.R.S. § 32-2153(B)(10). The Department presented no substantial evidence to show that Mr. Luna committed a crime of violence and has not demonstrated that Mr. Luna violated A.R.S. § 32-2153(B)(10). 9. Mr. Luna did not provide the Department with timely notification of his felony conviction. Consequently he has violated A.A.C. R4- 28-301(F) and R4-28-303(D). 10. The Department presented no substantial evidence that the acts underlying Mr. Luna’s felony conviction occurred in the “performance of or attempt to perform” acts authorized under the applicable real estate law. Consequently, the Department has not demonstrated that Mr. Luna violated A.R.S. § 32-2153(A)(3). 11. Based on Mr. Luna’s violations of A.R.S. § 32-2153(B)(2), A.A.C. R4-28-301(F), and R4-28-303(D), the Commissioner has authority to revoke Mr. Luna’s License and to impose a civil penalty of up to $1,000.00 per violation. A.R.S. §§ 32-2153(B); 32-2160.01. 12. Considering the facts and circumstances of this matter, it is appropriate for the Commissioner to revoke Mr. Luna’s License. However, the Department did not prove that Mr. Luna violated A.R.S. § 32-2153(B)(10) and it did not demonstrate that a civil penalty of $1,000.00 was appropriate for Mr. Luna’s violation of A.R.S. § 32-2153(B)(2). ORDER IT IS ORDERED that Carlos G. Luna’s License No. SA578254000 is revoked. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order is five days after the date of that certification. Done this day, May 22, 2013.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate -----------------------

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