ALJDEC decisions subject to certification as final

18F-DI-120-REL · Department of Real Estate · 2018-01-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Original Application for Real Estate Salesperson License of:

MATTHEW RIVER ROBBINS-PRETEL, holder of license number SA670503000 (Candidate),

Petitioner.

No. 18F-DI-120-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 19, 2017

APPEARANCES: Petitioner Matthew River Robbins-Pretel 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 October 11, 2017, Petitioner Matthew River Robbins-Pretel 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 March 2, 2013, August 30, 2014, May 28, 2016, and December 23, 2016.

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 March 2, 2013, Petitioner was cited for Possession of Drug Paraphernalia, a misdemeanor, by the Tempe Police Department, case number 13-008333-2. On September 2, 2014, the Tempe Municipal Court ordered that Petitioner participate in the Adult Diversion Program. On April 20, 2015, Petitioner’s charge was dismissed.

On or about October 21, 2014, Petitioner entered a plea of guilty to and was convicted on a charge of Minor in Consumption, a misdemeanor, Tempe Municipal Court, case number 14-034802-2. Petitioner was ordered to pay fines.

On or about May 28, 2016, Petitioner entered a plea of guilty to and was convicted on a charge of Disorderly Conduct, a misdemeanor, Tempe Municipal Court, case number 16-022154-2. Petitioner was ordered to pay fines.

On or about March 16, 2017, Petitioner was convicted of Aggravated Trespassing, a misdemeanor, Superior Court of California, County of Solano, case number VCR228294. Petitioner was sentenced to three years of summary probation, fees, and community service.

On or about October 18, 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 misdemeanor convictions detailed above. The Department informed Petitioner that his conduct had violated A.R.S. §§ 32-2153(B)(7). Therefore, the Department notified Petitioner that it intended to deny his license application.

On or about October 25, 2017, Petitioner requested an appeal.

At hearing, Petitioner acknowledged he had an alcohol problem going back to when he was 18 and woke up in the hospital suffering from alcohol poisoning. Petitioner reported that in 2014, he stopped drinking for a period of three to four months. Petitioner stated that between his Disorderly Conduct incident and the Aggravated Trespassing incident, he was having about one drink a week thinking he could handle it on his own without treatment. As to the Aggravated Trespassing charge, Petitioner stated he had returned to California in December 2016 and was hanging out with friends, drank to the point he blacked out, and was dropped off by his friends at his mother’s old house because they did not know she had moved. Petitioner tried to get into the house and was angry that other people were in his house. Petitioner stated that he attended a three-month outpatient program in Scottsdale after he returned to Arizona, and has returned occasionally for meditation classes. Petitioner admitted that after completing the outpatient program and shortly after his conviction for Aggravated Trespassing, Petitioner had half a beer in April 2017 that he attributed to his inability to say no to peer pressure. Petitioner testified he did not attend Alcoholics Anonymous and did not have a sponsor. Petitioner stated he does not hang out with the same friends anymore. Petitioner admitted that he was concerned about his upcoming trip to California because he had not seen those friends since the incident almost exactly one year prior.

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:

. . . .

7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character.

Petitioner engaged in a consistent pattern of criminal activity from 2013 to 2016 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 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, January 8, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate