ALJDEC decisions subject to certification as final

17F-DI-222-REL · Department of Real Estate · 2017-08-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson License of:

REYNOLDS, JAMES, holder of license number SA552820000,

Respondent.

No. 17F-DI-222-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 8, 2017

APPEARANCES: Respondent James Reynolds (“Reynolds” or “Respondent”) appeared and represented himself. Assistant Attorney General Lynette Evans appeared on behalf of the Arizona Department of Real Estate (“Department”).

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

FINDINGS OF FACT

On or about August 11, 2004, the Arizona Department of Real Estate (“Department”) issued to Reynolds a real estate salesperson's license, SA552820000. That license is currently suspended and will expire on August 31, 2018.

On January 17, 2017, in Maricopa County Superior Court, Reynolds was convicted of Aggravated Assault, a Class 6 Undesignated Felony and a domestic violence offense, case number CR2016-151605. Reynolds was sentenced to two and a half (2.5) years of probation and community restitution.

On January 27, 2017, Reynolds timely disclosed to the Department his aggravated assault felony conviction and multi-years of probation.

On April 3, 2017, the Department issued to Reynolds an Order of Summary Suspension and Notice of Opportunity for Hearing. The Department exercised this authority under A.R.S. §§ 32-2153 and 32-2157; A.R.S. § 41-1092.1(l)(B). (See Exhibit 6 - Department's Summary Suspension Order).

On May 5, 2017, Reynolds filed an appeal of the Summary Suspension. (See Exhibit 7).

At the hearing, the Department presented its case through the testimony of Wayne Jackson, its Senior Investigator, and submitted six exhibits.

Respondent testified on his own behalf and offered several written letters of character references from both clients and the brokers for whom he worked at Homesmart, proof of his honorable discharge from the army after ten-and-a-half years of service and the testimony, of his longtime friend and one-time business partner, Marvin Green.

Respondent testified and attempted to shed light on the circumstances that led to him accepting a plea agreement. He explained that he had been in a tumultuous romantic relationship with Michael Aponte that led to fights over Mr. Aponte’s untruthfulness. Respondent noted he had broken off the relationship after one such fight and then ultimately taken Mr. Aponte back into his life and apartment. On the evening giving rise to the charges at issue, Respondent noted he had left the apartment but forgotten his mobile phone. When he returned to retrieve it, Aponte allegedly punched him, forcing Respondent to push him away defensively. Respondent denied choking Aponte and said he never saw any injuries Aponte claimed to have suffered. Respondent indicated he left the apartment and only returned when Aponte’s mother assured him Aponte was gone. Upon his return, Respondent realized he had been “set up” by Aponte and his mother inasmuch as police were waiting to arrest him. Respondent stated he wanted to fight the charges and offer evidence that he too was a victim, but this evidence was ignored and his attorney advised him that because he was not the first to go to the police, he was risking his freedom for 3 to 5 years. Respondent acknowledged that he accepted the plea agreement and admitted to the facts giving rise to the charge. Later, he attempted to withdraw the plea but it was too late.

Since then Respondent claims he has been the target of unrelenting harassment by both Aponte and his mother, including damaging his vehicle, hacking into his accounts and defaming him on social media. Respondent has attempted to engage the police to stop some of these acts, but as of yet no charges have been filed.

Marvin Green testified that he has known Respondent for twenty years as a friend and business partner. Green indicated he was a real estate broker who brought Respondent in initially as an assistant, but after Respondent performed so well, they became partners. Green commented that clients loved Respondent and often told Green how well Respondent took care of them. Green believed that Respondent represented the practice of real estate well and that depriving him of a real estate salesperson’s license would be a real loss to the people of Arizona.

Green also said he took Respondent in after his release from jail and had witnessed firsthand the harassment Respondent has been subjected to by Aponte and his mother. Green commented that Respondent has not been treated well in this whole set of events and that he deserves better. He indicated that Respondent is not violent and is kind, mild-mannered and even tempered.

The Administrative Law Judge has reviewed the character reference letters submitted by Reynolds all of which attest that Respondent is a man of kind and decent character, who cares for his real estate clients. It is clear that the Homesmart brokers would rehire Respondent of he were permitted to keep his real estate license.

Perhaps in light of this character evidence, the Department agreed not to pursue an alleged violation of A.R.S. § 32-2153(B)(7). The Department argued however that Respondent’s conviction of a violent felony constitutes a violation of both A.R.S. §§ 32-2153(B)(2) and (B)(10), which by themselves support summarily suspending and revoking Respondent’s real estate salesperson’s license.

CONCLUSIONS OF LAW

The Commissioner has jurisdiction over Respondent and the subject matter in this case.

Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Department has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119(A).

With regard to the summary suspension, A.R.S. § 32-2157(C) provides:

The department may issue a summary suspension when the department receives notice that a person licensed pursuant to this chapter has been convicted of a felony offense and is currently incarcerated for the conviction, paroled or under the supervision of a parole or community supervision officer or is on probation as a result of the conviction. This subsection does not limit the commissioner's authority to seek revocation of a license or other disciplinary action pursuant to this chapter.

The evidence of record established that Respondent was convicted in a court of competent jurisdiction of Aggravated Assault, a Class 6 Undesignated Felony, within the meaning of A.R.S. § 32-2153(B)(2). Respondent is currently on probation for that conviction. As such, the imposition of a summary suspension was warranted and the Department has grounds to exercise its discretion to revoke Respondent’s license.

Similarly, the evidence established that the above conviction involved violence against a person in violation of A.R.S. § 32-2153(B)(10).

Notwithstanding the above, A.R.S. § 32-2153(B) expressly allows the Department to issue a provisional license to a license holder convicted of a felony.

Respondent requested that because revocation is discretionary, the Tribunal consider the factual circumstances giving rise to the plea, that he is not a violent person, and has always acted appropriately when transacting real estate.

Upon review of all the evidence, the Tribunal finds that it was appropriate to summarily suspend and is appropriate to revoke Respondent’s real estate salesperson’s license under the present circumstances. Respondent admittedly repeatedly fought with his boyfriend resulting in injury to them both and giving rise to the felony conviction. He remains on probation and, by his own admission, his personal life remains tumultuous. The Department’s concerns that Respondent is not in a position to hold a real estate salesperson’s license at this time is valid.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that Respondent’s real estate salesperson's license, SA552820000 be revoked on the effective date of the Order entered 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 will be 40 days from the date of that certification.

Done this day, August 11, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate