ALJDEC decisions subject to certification as final

16F-DI-199-REL-res · Department of Real Estate · 2016-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson license of:

Jose R. Rivera, holder of license number SA624430000

Respondent.

No. 16F-DI-199-REL-res

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 18, 2016 held open until November 1, 2016

APPEARANCES: Jose Rivera, Respondent; Ryan Krench, Attorney for the Department of Real Estate; Jim Ledwith, witness; Shane Foster and Lynette Evans, observers

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

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Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Commissioner of the Arizona Department of Real Estate.

FINDINGS OF FACT

The Arizona Department of Real Estate (“Department”) issued Real Estate Salesperson’s License No. SA624430000 to Jose Rivera (“Respondent”). That license expired on September 30, 2016, and was active as of the time of the hearing.

On or about October 23, 2015 Respondent was found guilty of 10 counts of Conspiracy to Commit Mail Fraud, a Class C felony. Respondent received 13 months in prison, fines, restitution, and supervised probation upon release.

On March 17, 2016, the Department issued Respondent an Order of Summary Suspension and Notice of Opportunity for Hearing. The notice informed Respondent that his license was suspended and set a hearing in the matter at the Arizona Office of Administrative Hearings, an independent State hearings agency.

At the hearing, the Department offered evidence establishing that Respondent had been convicted of the above-noted felony. Respondent appeared at the hearing and asked that he be permitted to submit his attorney’s legal argument submitted in the criminal case. It offered Respondent’s legal basis for finding that he did not have the intent required to support a conviction. The Department did not dispute the entry of the brief as an exhibit but maintained that Respondent was, nevertheless, convicted and the Department’s actions were, therefore, supported by the applicable law. Respondent does not dispute that he has been convicted of a felony in a court of competent jurisdiction.

CONCLUSIONS OF LAW

1. This matter is within the jurisdiction of the Commissioner of the Arizona Department of Real Estate pursuant to A.R.S. § 32-2153(A). The hearing was conducted through the Arizona Office of Administrative Hearings, an independent State agency, pursuant to A.R.S. § 41-1092.07.

A.R.S. § 32-2153 provides, in relevant part, as follows:

32-2153. Grounds for denial, suspension or revocation of licenses; letters of concern; provisional license; retention of jurisdiction by commissioner; definitions

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B. The commissioner may suspend or revoke a license, deny the issuance of a license, issue a letter of concern to a licensee, issue a provisional license or deny the renewal or the right of renewal of a license issued under this chapter when it appears that the holder or applicant has:

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2. Been convicted in a court of competent jurisdiction in this or any other state of a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense.

2. The evidence of record established that Respondent violated A.R.S. § 32-2153(B)(2) by being convicted of a felony in a court of competent jurisdiction. Therefore, A.R.S. § 32-2153 authorized the Department to summarily suspend Respondent’s license and further authorizes it to revoke Respondent’s license.

RECOMMENDED ORDER

It is ordered that the Department’s summary suspension of Respondent’s license is sustained and that License No. SA624430000 shall be revoked on the effective date of the Order in this matter.

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 shall be five days from the date of the certification.

Done this day, November 14, 2016.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate