ALJDEC decisions subject to certification as final

17F-DI-219-REL · Department of Real Estate · 2017-06-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson License of:

ABRAHAM M OLIVAS, holder of license number SA624448000,

Petitioner.

No. 17F-DI-219-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 24, 2017

APPEARANCES: Abraham Olivas, Petitioner; Ryan Krench, Attorney for the Department of Real Estate; Robin King, witness

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

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 Director of the Department of Real Estate.

FINDINGS OF FACT

Petitioner held a real estate salesperson’s license with the Arizona Department of Real Estate (“Department”) from October 24, 2007 to October 6, 2014, when his license was revoked. On March 23, 2017, Petitioner applied for a new real estate salesperson license in which he disclosed two criminal convictions from February 21, 2014. Unfortunately, Petitioner did not disclose a conviction for extreme DUI, a Class 1 misdemeanor, from September 13, 2010 in the application. Petitioner also failed to disclose this conviction when it occurred as he was required to do within 10 days under his license at that time.

On March 28, 2017, the Department issued an Intent to Deny Application, which Petitioner appealed.

The matter was set for hearing at the Arizona Office of Administrative Hearings, an independent State hearings agency.

At the hearing, Petitioner stated that he did not disclose the 2010 conviction in the current application because he thought that it had been put to rest when his license was revoked in 2014 after the other convictions. However, if this was the reason he did not disclose the 2010 conviction in 2017, it is unclear why he reported the 2014 convictions in 2017, since they were allegedly put to rest in 2014 as well.

Petitioner also stated during the hearing that he did disclose the 2010 conviction verbally in 2014 when he was going through the license revocation process. This is tantamount to an admission by Petitioner that he failed to disclose it in 2010 when he was required to do so.

CONCLUSIONS OF LAW

This hearing was conducted in accordance with Arizona Revised Statutes (“A.R.S.”) § 41-1092.01 et seq. Petitioner has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See Arizona Administrative Code (“A.A.C.”) R2-19-119.

A.R.S. § 32-2153(B)(1) authorizes the Department to deny the application of anyone filing an application that is false or misleading. It is undisputed that Petitioner failed to disclose his 2010 conviction in his current application and that he did not disclose it in writing at the time of his conviction. Petitioner’s reason for failing to disclose the conviction did not carry with it any indicia of credibility because Petitioner’s excuse was inconsistent with his disclosure of the 2014 convictions in that, as he claimed at hearing, he allegedly thought that all of his convictions were dealt with when his license was revoked. Therefore, the greater weight of the evidence established that the application was false and misleading.

A.R.S. § 32-2153(B)(2) authorizes the Department to deny the application of anyone convicted of a felony. It is undisputed that Petitioner was convicted of two felonies in 2014 for which his license was revoked. Therefore, the Department was authorized to deny the license on this ground.

A.R.S. § 32-2153(B)(7) authorizes the Department to deny the application of anyone not shown to be a person of honesty, truthfulness, and good character. Pursuant to A.A.C. R4-28-301(F) and 303(D), Petitioner was required to disclose his 2010 conviction to the Department in writing within 10 days of its occurrence. It was undisputed at hearing that he did not make a proper disclosure of the 2010 conviction in writing in 2010 or in 2014, and that he did not disclose it in his 2017 application. Such actions do not support Petitioner’s argument that he is a person of honesty, truthfulness, and good character.

Considering the above factors, the greater weight of the evidence does not support Petitioner’s appeal. The Department acted within its authority and on good grounds to deny Petitioner’s application. Therefore, it must be recommended that this appeal by Petitioner be denied.

RECOMMENDED DECISION

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that this appeal be denied. The Department’s Notice of Intent to Deny Application dated March 28, 2017 should be sustained.

Done this day, June 5, 2017.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate