ALJDEC decisions subject to certification as final
17F-DI-120-REL · Department of Real Estate · 2017-02-14
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Application for Original Real Estate Salesperson's License of:
JOEY RIVERA, holder of license number SA661198000 (Candidate),
Petitioner.
No. 17F-DI-120-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 9, 2017
APPEARANCES: Petitioner Joey Rivera appeared on his own behalf. The Arizona Department of Real Estate was represented by Assistant Attorney General Lynette Evans.
ADMINISTRATIVE LAW JUDGE: Suzanne Marwil
_____________________________________________________________________
FINDINGS OF FACT
On or about October 31, 2016, the Department of Real Estate (“the Department”) received Petitioner’s application to the Department to be licensed as a real estate salesperson, in which he answered “yes” to the following questions:
Has the Applicant/Is the Applicant:
12. Been convicted or entered into a plea agreement or a plea of NOLO CONTENDERE (no contest) to ANY felony in Arizona or any other state, whether or not the plea or verdict was set aside, judgment or sentencing was deferred, conviction was dismissed or expunged, or has been pardoned?
13.Been convicted or entered into a plea agreement or a plea of NOLO CONTENDERE (no contest) to ANY misdemeanor in Arizona or any other state, whether or not the plea or verdict was set aside, judgment or sentencing was deferred, conviction was dismissed or expunged, or has been pardoned?
Petitioner also submitted a disclosure statement to the Department identifying several arrests and convictions.
A. On June 18, 1998, Petitioner was convicted of Theft, a Class 4 Felony, in Maricopa County Superior Court, case number CR1998-006083 and sentenced to probation.
B. On June 18, 1998, Petitioner was convicted of Solicitation to Sell Narcotic Drugs, a class 4 Felony, in Maricopa County Superior Court, case number CR1998-00153 and sentenced to probation.
C. On May 24, 2010, Petitioner was convicted of Theft by Taking, a misdemeanor, in Cherokee Superior Court, State of Georgia, case number 10CR055 and sentenced to probation.
D. On July 24, 2013, Petitioner was convicted of Possession of Drug Paraphernalia, a Class 6 Undesignated Felony, in Maricopa County Superior Court, case number CR2013-002302 and placed on unsupervised probation.
The Department also reviewed Petitioner’s criminal court record in Maricopa County Superior Court and found that on June 22, 2000, Petitioner pled guilty to Trafficking in Stolen Property, a Class 3 Felony, case number CR1999-007836 for which he was sentenced to probation.
On or about November 3, 2016, the Department sent Petitioner, via certified mail, an Intent to Deny Application for Original Real Estate Salesperson’s License, in which the Department informed Petitioner that, based on his application, it had concluded that he did not meet the qualifications for licensure pursuant to A.R.S. §§ 32-2123, 32-2124, and 32-2153. The Department informed Petitioner that its conclusion was based in part, but not exclusively, “on your 1998 convictions for Theft and Solicitation to Sell Narcotic Drugs, October 11, 2013 conviction for Narcotic Drug Violation, all felonies, and your May 24, 2010 conviction for Theft by Taking, a misdemeanor.” The Department informed Petitioner that his conduct had violated A.R.S. §§ 32-2153(B)(2), (B)(7), and (B)(10). Therefore, the Department notified Petitioner that it intended to deny his license application.
On or about November 7, 2016, Petitioner requested an appeal.
At hearing, Petitioner admitted that he had been convicted of felonies in 1998 while he was addicted to heroin and living on the streets. He said he had been sober from heroin for 12 years and was raising a 15 year old son while working as a personal trainer. Petitioner said that while employed by Gold’s Gym he agreed to let his friends pay him directly for personal training without paying the gym, leading to charges. He explained that he used marijuana at a party in 2013, leading to the most recent charge. Petitioner noted that he could not afford to pay the fine to have the undesignated felony removed from his record.
Petitioner referred to his crimes as victimless and believed the only person he had hurt was himself. He indicated that his past convictions did not reflect who he was and that he wanted a real estate license to better himself.
Petitioner submitted character references (Exhibit C) as well as letters from two licensed brokers who each indicated they were aware of Petitioner’s past conviction and would be willing to serve as his practice monitor under a provisional license. Exhibits A and B. He believed such a provisional license would provide the public with adequate protection and balance his desire to better himself.
The Department acknowledged that Petitioner had made great strides toward healthier living, but it expressed concern over the number, nature and recentness of Petitioner’s convictions. It noted that Petitioner had convictions for theft and would be handling transactions involving large sums of money. It requested that Petitioner’s application for a real estate license be denied.
CONCLUSIONS OF LAW
The Department bears the responsibility to protect the public through its enforcement of licensing statutes. This matter lies within its jurisdiction.
Petitioner bears the burden of proof and must establish that he meets statutory qualifications for a real estate salesperson’s license by a preponderance of the evidence.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he 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.”
A.R.S. § 32-2153 provides in relevant part as follows:
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:
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.
. . . .
7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character.
. . . .
10. Violated any federal or state law, regulation or rule that relates to real estate or securities or that involves forgery, theft, extortion, fraud, substantial misrepresentation, dishonest dealings or violence against another person or failure to deal fairly with any party to a transaction that materially and adversely affected the transaction. This paragraph applies equally to violations of which the licensee was convicted in any lawful federal or state tribunal and to any admissions made in any settlement agreement by the licensee to violations.
The uncontested evidence established that Petitioner was convicted of theft in violation of A.R.S. § 32-2153(B)(2) and (B)(10).
Petitioner engaged in a consistent pattern of criminal activity demonstrating that he is not a not a person of honesty, truthfulness, or good character in violation of A.R.S. § 32-2153(B)(7).
The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. It would not fulfill that statutory mandate by licensing Petitioner as a real estate salesperson at this time even under a provisional license in view of the nature, number and recentness of Petitioner’s convictions.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that the Department affirm its decision to deny Petitioner’s application for a real estate salesperson’s license at this time and dismiss this appeal.
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, February 14, 2017.
/s/ Suzanne Marwil
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate