ALJDEC decisions subject to certification as final
18F-DI-101-REL · Department of Real Estate · 2017-12-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Original Application for Real Estate Salesperson License of:
ALBERT IFFLANDER JR., holder of license number SA672631000 (Candidate),
Petitioner.
No. 18F-DI-101-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: December 8, 2017
APPEARANCES: Petitioner Albert Ifflander Jr. appeared on his own behalf. The Arizona Department of Real Estate was represented by Assistant Attorney General Ryan Krench.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
On or about September 21, 2017, Petitioner Albert Ifflander Jr. submitted to the Arizona Department of Real Estate (Department) a Salesperson Application Form to be licensed as a real estate salesperson, in which Petitioner answered “yes” to the following question:
Has the Applicant . . . .
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, the conviction was dismissed or expunged, or has been pardoned?
Petitioner also submitted a disclosure statement to the Department identifying several arrests and convictions. In the statement, Petitioner identified the relevant dates of his charges as September 26, 2006, November 6, 2008, and August 20, 2009.
According to the court records obtained and presented by the Department, Petitioner’s criminal history as it relates to the instant matter consisted of the following:
On or about September 23, 2006, Petitioner was charged with possession of marijuana, a class 6 felony; possession of drug paraphernalia, a class 6 felony; and possession of marijuana for sale, a class 4 felony. On or about January 9, 2007, Petitioner entered a plea of guilty to Solicitation to Possess Marijuana for Sale, a class 6 undesignated felony, in Maricopa County Superior Court, Case No. CR2006-159291. Petitioner was sentenced to three months in the county jail, placed on probation for three years, and ordered to complete 100 hours of community service, not to drink alcoholic beverages, and to pay fines and fees. Petitioner was 19 years old at the time. On or about July 22, 2008, Petitioner’s probation was revoked, Petitioner was sentenced to one year incarceration, and the felony was reclassified from an undesignated class 6 felony to a class 6 felony.
On or about April 19, 2008, Petitioner was charged with driving under the influence. On or about December 23, 2009, Petitioner entered a plea of guilty to Endangerment, a class 6 designated felony, and Driving or Actual Physical Control Under the Extreme Influence of Intoxicating Liquor (to wit: BAC over 0.02), a class 1 misdemeanor, in Pinal County Superior Court, Case No. CR200901408. Petitioner was sentenced to one year and six months incarceration, respectively, to run concurrently, and ordered to pay fines and fees.
On or about June 8, 2008, Petitioner was charged with driving under the influence. On or about January 12, 2010, Petitioner entered a plea of guilty to Aggravated Diving or Actual Physical Control While Under the Influence of Intoxicating Liquor or Drugs, a class 4 felony, in Maricopa County Superior Court, Case No. CR2008-169141. Petitioner was sentenced to 2.5 years’ incarceration and ordered to pay fines and fees.
On or about September 29, 2017, 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, based in part on his 2006 class 6 felony conviction for Solicitation to Possess Marijuana for Sale, his 2010 class 4 felony conviction for Aggravated DUI, and his 2009 class 6 felony conviction for Endangerment and misdemeanor conviction for Extreme DUI. The Department informed Petitioner that his conduct had violated A.R.S. §§ 32-2153(B)(2) and (B)(7). Therefore, the Department notified Petitioner that it intended to deny his license application.
On or about October 10, 2017, Petitioner requested an appeal.
At hearing, Petitioner acknowledged he had an alcohol problem and had made mistakes in his past. Petitioner stated he had been sober since 2011 and was an active participant in Alcoholics Anonymous (AA). Petitioner stated that during his incarceration, he had attended drug and alcohol treatment and AA. Petitioner admitted that after his release, he used alcohol for approximately six months to see if he was really an addict. Upon realizing he had an issue with alcohol, Petitioner decided he was better off not drinking and started going back to AA. Petitioner identified January 4, 2017, as his sobriety date because that was when he became fully involved with AA. Petitioner argued that none of his crimes should be considered red flags to the Department as they did not involve burglary or theft of any kind. Petitioner submitted letters of reference from people in the community who know him.
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.
. . . .
9. Violated the terms of any criminal or administrative order, decree or sentence.
The uncontested evidence established that Petitioner was convicted of multiple felonies in violation of A.R.S. § 32-2153(B)(2).
Petitioner engaged in a consistent pattern of criminal activity from 2006 to 2008 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 uncontested evidence established that Petitioner violated the terms of his probation such that it was revoked in violation of A.R.S. § 32-2153(B)(9).
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.
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, December 27, 2017
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate