ALJDEC decisions subject to certification as final

16F-DI-232-REL · Department of Real Estate · 2016-06-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 13, 2016 APPEARANCES: Lamar Guerra on his own behalf; Ryan Krench, Esq. for the Department of Real Estate ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On May 6, 2016, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing and Complaint setting the above-captioned matter for hearing on June 13, 2016, at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing provided that hearing was being held to determine whether grounds exist to affirm the Department’s decision to deny Petitioner Lamar Guerra’s application for a real estate sales person’s license. 3. Through the Notice of Hearing, the Department alleges that Mr. Guerra has violated Ariz. Rev. Stat. sections 32-2153(B)(2) and (B)(7). 4. The Department presented the testimony of investigator Linda Bevins. Mr. Guerra appeared and testified on his own behalf. 5. On March 18, 2016, the Department received Mr. Guerra’s application for a salesperson’s license. 6. In his application, Mr. Guerra disclosed that in 2000, he had been convicted possession of marijuana, a misdemeanor. 7. In his application, Mr. Guerra also disclosed that on January 6, 2016, he had pleaded guilty to two counts of attempted voyeurism, class 6 undesignated felonies. 8. In a letter dated April 6, 2016, the Department informed Mr. Guerra that his application was denied based in part on his guilty plea to the attempted voyeurism charges and the 2000 misdemeanor conviction. The Department informed Mr. Guerra that his conduct was in violation of Ariz. Rev. Stat. sections 32- 2153(A)(3), (B)(2), and (B)(7). 9. On May 24, 2016, Mr. Guerra was found guilty of the two counts of attempted voyeurism and sentenced to ten years of probation. At the hearing, the Department took the position that based on Ariz. Rev. Stat. section 32-2124(M) this sentence precludes the Department from issuing a license to Mr. Guerra. 10. Mr. Guerra’s attempted voyeurism convictions were the result of two instances in which Mr. Guerra attempted to take photographs up the skirts of females in a Walmart store. 11. At the hearing, Mr. Guerra provided medical documentation showing that he suffered from a pituitary adenoma for which he had been taking Cabergoline. 12. Cabergoline is a dopamine agonist. Mr. Guerra also presented, and had admitted into evidence, medical literature showing that this class of drug can cause behavioral changes, including those of a sexual nature. Mr. Guerra acknowledged that this information had been provided to the superior court in his attempted voyeurism criminal matter. 13. In addition, Mr. Guerra had admitted into evidence a Psychological and Psychosexual Evaluation conducted on February 19, 2016 by Richard I. Lanyon, Ph.D. The evaluation was requested by Mr. Guerra’s attorney in the criminal voyeurism matter. 14. Dr. Lanyon’s conclusions include a finding that medical literature shows that side effects of Cabergoline can be hypersexuality and obsessive/compulsive behaviors and that Mr. Guerra’s behavior in the Walmart store “can probably be explained in this manner.” CONCLUSIONS OF LAW 1. Mr. Guerra bears the burden of persuasion. Ariz. Rev. Stat. § 41- 1092.07(G)(1). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19- 119(A). 3. A preponderance of the evidence is: The greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other. Black’s Law Dictionary 1373 (10th ed. 2014).

4. The preponderance of the evidence shows that Mr. Guerra has been convicted of two counts of attempted voyeurism, which are felonies. Consequently, the Department’s Commissioner has authority to deny Mr. Guerra’s application. Ariz. Rev. Stat. section 32-2153(B)(2). 5. The Department found that Mr. Guerra’s attempted voyeurism and convictions show that he is not a person of good character within the meaning of Ariz. Rev. Stat. section 32-2153(B)(7). 6. Although Mr. Guerra presented evidence showing that Cabergoline can cause hypersexuality and obsessive/compulsive behaviors, and that it may have been a cause of his attempted voyeurism, Mr. Guerra did not present any affirmative evidence to show that he is a person of good character.[1] Consequently, he has not met his burden of proof on this issue and the Department’s Commissioner has authority to deny his application based on of Ariz. Rev. Stat. section 32-2153(B)(7). 7. Because Mr. Guerra is on probation for his felony convictions, the Department is precluded from issuing a license to Mr. Guerra. Ariz. Rev. Stat. § 32-2124(M). 8. Mr. Guerra has not met the burden of proof to show that the decision to deny his application should be reversed. ORDER IT IS ORDERED that Lamar Guerra’s appeal is dismissed. 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, June 30, 2016.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] Dr. Lanyon’s Evaluation report shows that Mr. Guerra may have been taking photographs up women’s skirts on more than the two occasions for which he was convicted.

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