ALJDEC decisions subject to certification as final

18F-DI-022-REL · Department of Real Estate · 2017-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson License of:

KIEFFER, JOSH, holder of license number SA656511000,

Respondent.

No. 18F-DI-022-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 11, 2017

APPEARANCES: Assistant Attorney General Ryan Krench appeared on behalf of the Arizona Department of Real Estate. Respondent Josh Kieffer did not appear.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On August 30, 2017, the Arizona Department of Real Estate issued a “Notice of Hearing & Complaint” setting the above-captioned matter for hearing at

1:00 p.m. on October 11, 2017, at the Office of Administrative Hearings in Phoenix, Arizona.

In the Complaint, the Department alleged that Respondent Josh Kieffer (“Mr. Kieffer”) violated A.R.S. §§ 32-2153(A)(3),(B)(7),(B)(9); A.A.C. R4-28-301(A)(1)(a) (A)(2),(F); R4-28-303(D); and A.A.C. R4-28-301(A)(2).

No representative for Mr. Kieffer appeared by 1:20 p.m. and the hearing was convened in his absence at that time. The Department presented the testimony of its Investigator, Linda Bevins, and submitted exhibits 1 through 7, and 10 through 22.

On or about January 13, 2015, Mr. Kieffer filed an application for an original real estate salesperson license. Mr. Kieffer submitted a letter with his application stating that he was arrested in March 2012 for possession of drug paraphernalia and was convicted that same month in Yavapai Superior Court.

On June 16, 2015, the Department issued real estate salesperson license SA656511000 to Josh Kieffer. The license expires on June 30, 2017.

On the application, Mr. Kieffer answered “yes” to questions 1, 12 and 13 on the Disciplinary Actions Disclosure form. The questions on the form asked if the applicant:

1. Had a professional or occupational license or registration of ANY kind denied, suspended, restricted or revoked: (Driver’s License/CDL not included).

12. Been convicted and/or entered into a plea agreement and/or a plea of NOLO CONTENDRE (no contest) to ANY felony in Arizona and/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 and/or entered into a plea agreement and/or a plea of NOLO CONTENDRE (no contest) to ANY misdemeanor in Arizona and/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?

CONVICTIONS – DUI AND/OR RECKLESS DRIVING, EITHER MISDEMEANOR OR FELONY, MUST BE DISCLOSED. Minor traffic citations do not constitute a misdemeanor or felony offense.

Mr. Kieffer provided the Department with a copy of Judgment of Guilt and Partial Sentence, Yavapai County Superior Court, case number P1300CR201200320, along with his application. See Exhibit 4.

Mr. Kieffer was found guilty of Possession of Drug Paraphernalia, a class 6 undesignated felony, and Driving under the Influence, a class 1 misdemeanor.

Mr. Kieffer was sentenced to 12 days in jail, assessed fines and penalties, and placed on supervised probation for 18 months. See id.

The Judgment of Guilt and Partial Sentence filed on October 1, 2012 provides in relevant part, “sentencing for the crime of Possession of a Narcotic Drug has been deferred until completion of DOTP.” See id.

On February 26, 2015, the Department mailed a Deficiency Letter to Mr. Kieffer requesting a disclosure of a deferral of a judgment or sentencing for a misdemeanor or felony.

Mr. Kieffer provided a copy of an Order Amending Order to Discharge Probation to Designate Offense filed on October 23, 2014, in Yavapai County Superior Court, case number P1300CR201200320. See Exhibit 6.

The document shows that the Possession of a Narcotic Drug offense was dismissed and the Possession of Drug Paraphernalia offense was designated a misdemeanor. See id. On March 25, 2014, Mr. Kieffer was discharged from probation. See id.

On September 29, 2015, the Department received a copy of a letter from the Arizona Department of Public Safety (“DPS”) addressed to Mr. Kieffer. The letter states that Mr. Kieffer’s Level One Driving Restricted Fingerprint Clearance Card was suspended because DPS was notified that Mr. Kieffer was arrested for Felony Marijuana Possess/Use and Felony Drug Paraphernalia Posses/Use and Misdemeanor Criminal Damage. See Exhibit 7.

The Department reviewed court records and discovered that on January 15, 2014, Mr. Kieffer was convicted of Underage Consumption of Alcohol, a misdemeanor, in Flagstaff Municipal Court. See Exhibit 10. Mr. Kieffer did not disclose the conviction on his license application.

On or about March 22, 2016, Mr. Kieffer plead guilty to Possession of Marijuana, a class one misdemeanor, and Criminal Damage, a class one misdemeanor in Maricopa County Superior Court, case number CR2015-144358 (“CR2015-14358”). Mr. Kieffer was sentenced to one year of unsupervised probation and ordered to pay restitution, fines and fees. See Exhibit 12.

On January 31, 2017, Mr. Kieffer’s probation for the Criminal Damage offense in CR2015-144358 was extended to five years from March 22, 2017. The reason for the extension was to provide Mr. Kieffer additional time to pay restitution. See Exhibits 13-14.

On or about March 8, 2017, Mr. Kieffer’s probation office for the Possession of Marijuana offense in CR2015-144358 was terminated. Mr. Kieffer’s probation under the Criminal Damage offense under CR2015-144358 was not terminated. See Exhibit 15.

On or about March 8, 2017, the Court issued a Criminal Restitution Order against Mr. Kieffer for unpaid monetary sanctions in CR2015-144358. The Order is enforceable as a civil judgment. However, Mr. Kieffer failed to timely notify the Department of the Order.

On or about August 3, 2017, the Court issued a Petition to Revoke Probation order revoking Kieffer’s probation in CR2015-144358. Mr. Kieffer’s probation office filed a Petition to Revoke Probation alleging that Mr. Kieffer failed to pay his restitution and was also charged with shoplifting and criminal trespass, under Flagstaff Municipal Court case numbers M-3041-CR2017000411 and M-3041-CR2017000412. See Exhibit 17.

CONCLUSIONS OF LAW

The Department bears the burden of persuasion. A.R.S. § 41-1092.07(G).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.A.C. R2-19-119.

A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).

The Department established by a preponderance of the evidence that Mr. Kieffer violated A.R.S. §§ 32-2153(A)(3), B)(7),(B)(9) and A.A.C. R4-28-301(A)(1)(a), (A)(2),(F) and 303(D).

Considering the facts and circumstances of this matter, it is appropriate for the Commissioner to revoke Mr. Kieffer’s License.

ORDER

IT IS ORDERED that Josh Kieffer’s License No. SA6565110000 is revoked.

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, October 30, 2017.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate