ALJDEC decisions subject to certification as final

18F-DI-011-REL · Department of Real Estate · 2017-12-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Application for Real Estate Salesperson's License of:

SWAILEM, TAMER, holder of license number SA558501000 (Candidate),

Petitioner

No. 18F-DI-011-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 27, 2017

APPEARANCES: Tamer Swailem on his own behalf; Ryan Krench, Esq. for the Department of Real Estate

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

_____________________________________________________________________

FINDINGS OF FACT

On September 7, 2017, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing setting the above-captioned matter for hearing on October 13, 2017 at the Office of Administrative Hearings in Phoenix, Arizona. The matter was continued and the hearing was conducted on November 27, 2017.

The Notice of Hearing provided that the hearing was being held to determine whether grounds exist to deny Petitioner Tamer Swailem’s application for a real estate salesperson’s license.

Through the Notice of Hearing, the Department alleges that Mr. Swailem has violated Ariz. Rev. Stat. sections 32-2153(B)(2) and (B)(5).

The Department presented the testimony of investigator Jim Ledwith. Mr. Swailem appeared and testified on his own behalf.

On July 13, 2017, the Department received Mr. Swailem’s application for a salesperson’s license.

With his application, Mr. Swailem disclosed that on November 14, 2003, he pleaded guilty to Conspiracy to Commit Interstate Transportation and Receipt of Stolen Property and to Conspiracy to Commit Money Laundering, both of which are felonies.

On November 27, 2006, Mr. Swailem was sentenced to “time served” of 111 days and placed on supervised release for two years. Mr. Swailem was released from probation effective April 5, 2008, which was about seven months early.

Mr. Swailem testified to the effect that there were a large number of people in several states involved in the crimes. Mr. Swailem cooperated with the federal authorities, which is in part why he received a light sentence.

On October 7, 2016, Mr. Swailem received a good-cause exception for the issuance of a Level I fingerprint clearance card.

In a letter dated July 18, 2017, the Department informed Mr. Swailem that his application was denied based his felony convictions. The Department informed Mr. Swailem that his conduct was in violation of Ariz. Rev. Stat. sections 32-2153(B)(2) and (B)(10).

For about a year to a year and a half, beginning 2001, Mr. Swailem worked in a warehouse for a friend’s business. During that time the warehouse was receiving stolen goods and, in one instance, Mr. Swailem drove from Arizona to California and picked up stolen goods.

Although Mr. Swailem initially was not aware that he was involved in illegal activity, he did not quit his job immediately on learning of that fact. Mr. Swailem explained that his choice to continue working for the friend was based on “stupidity”, his need to work to support a family, and his rationalization that what the owner was doing was really none of his business. Mr. Swailem testified that when a better opportunity did come along, he quit.

Mr. Swailem was licensed by the Department from January 31, 2005 to January 31, 2007 when his license lapsed or expired. Mr. Swailem did not report his conviction to the Department because he was not aware that he was required to do so. It was while attending Real Estate school to prepare for this application that he learned that he had been required to report the conviction.

Mr. Swailem let his license expire in 2007 because he thought that he was not eligible to hold a license based on his conviction. After he learned that the criminal conviction was not an automatic bar, he began to work toward the current application.

Since his arrest and conviction, Mr. Swailem and his father operated a restaurant for about five years, he lived in Dubai and Egypt for about four years; he returned to the United States in 2016 and has been working for an investment company owned by his father and friends.

In the fifteen years or so since the events that led to his arrest and conviction, Mr. Swailem has had no criminal involvement and he testified that he has been productive member of society.

During the time Mr. Swailem was licensed, he engaged in only two or three transactions, all of which involved his family or friends. If granted a license, Mr. Swailem’s primary objective is to work with the investment company he now works for “flipping” houses.

Mr. Swailem acknowledges that he made a mistake through his involvement in criminal activity, but he asserts that he was punished for that activity through his jail time and probation. He also testified to the effect that his sentence and early release from probation, and that he had been allowed to leave the country, were signs that the judge, prosecutor and probation authorities did not believe he was of bad character.

CONCLUSIONS OF LAW

Mr. Swailem bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(1).

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).

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).

The preponderance of the evidence shows that Mr. Swailem has been convicted of two felonies. Consequently, the Department’s Commissioner has authority to deny Mr. Swailem’s application or to issue a provisional license. Ariz. Rev. Stat. sections 32-2153(B)(2) and (B)(5).

Considering the facts and circumstances of this matter, particularly the length of time since Mr. Swailem committed his crimes, the length of time since he completed his probation, and that but for these convictions, he has been law abiding, Mr. Swailem has demonstrated that his application should be granted.

RECOMMENDED ORDER

IT IS ORDERED that Tamer Swailem’s appeal is sustained and that his application for a real estate salesperson’s license is granted.

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, December 15, 2017

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate