ALJDEC decisions subject to certification as final

18F-DI-216-REL · Department of Real Estate · 2018-04-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

ABDALLA, ELIAS, holder of license number SA670153000 (Candidate),

Petitioner.

No. 18F-DI-216-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 26, 2018

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

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

_____________________________________________________________________

FINDINGS OF FACT

On March 21, 2018, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing setting the above-captioned matter for hearing on April 26, 2018 at the Office of Administrative Hearings in Phoenix, Arizona.

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

Through the Notice of Hearing, the Department alleges that Mr. Abdalla has violated Ariz. Rev. Stat. sections 32-2153(B)(7) and (B)(9).

The Department presented the testimony of Investigator Jim Ledwith and Daniel Jones, Enforcement and Compliance Division Manager. Mr. Abdalla appeared and testified on his own behalf.

On January 25, 2018, the Department received Mr. Abdalla’s application for a salesperson’s license.

In his application, Mr. Abdalla answered yes to the question asking whether he had ever been convicted of, or pleaded no contest to a felony.

In his application, Mr. Abdalla answered yes to the question asking whether he had ever been convicted of, or pleaded no contest to a misdemeanor.

In April 2010, Mr. Abdalla was arrested and charged by the Commonwealth of Kentucky with trafficking in a controlled substance within 1000 yards of a school. Mr. Abdalla disclosed that he was sentenced to five years of probation and one year in a rehabilitation program. On May 1, 2016, Mr. Abdalla’s pre-trial diversion expired, and the matter was stricken from the active docket.

On December 9, 2014, in Case No. 77161, Mr. Abdalla pleaded guilty to, and was convicted of Theft of property, greater than $50 and less than $500, a misdemeanor, in the County Court of Law, San Patricio County Texas. Mr. Abdalla was sentenced to supervised release and community service and order to pay costs and fees.

On August 4, 2015, in Case No. 78644, Mr. Abdalla pleaded guilty to, and was convicted of possession of controlled substance a misdemeanor, in the County Court of Law, San Patricio County Texas. Mr. Abdalla was sentenced to supervised release and community service and ordered to pay costs and fees. On October 5, 2016, Mr. Abdalla was found to have violated his probation and he was sentenced to jail time and a fine.

On August 4, 2015, in Case No. 78645, Mr. Abdalla pleaded guilty to, and was convicted of possession of controlled substance a misdemeanor, in the County Court of Law, San Patricio County Texas. Mr. Abdalla was sentenced to supervised release and community service and ordered to pay costs and fees. On October 5, 2016, Mr. Abdalla was found to have violated his probation and he was sentenced to jail time and a fine.

On November 17, 2015, in Case Nos. 12-3062-2 and 12-3065-2, Mr. Abdalla pleaded guilty to theft of over $50 and less than $500 misdemeanor, in the County Court of Law Number Two, Nueces County Texas. The court deferred the proceedings without entering a finding of guilt and Mr. Abdalla was placed on community supervision and ordered to pay costs and fees.

On December 16, 2015, in Case Number 2015-4645-2, Mr. Abdalla pleaded guilty to, and was convicted of, driving while intoxicated, a misdemeanor, in the County Court of Law Number Two, Nueces County Texas. Mr. Abdalla was sentenced to probation and ordered to pay fines and fees.

On October 5, 2016, in Case Number 80766, Mr. Abdalla pleaded no contest to, and was convicted of, driving while intoxicated, a misdemeanor, in the County Court of Law Number, San Patricio County Texas. Mr. Abdalla was sentenced to jail time and ordered to pay fines and fees.

On October 5, 2016, in Case Number 80767, Mr. Abdalla pleaded no contest to, and was convicted of, possession of a controlled substance, a misdemeanor, in the County Court of Law Number, San Patricio County Texas. Mr. Abdalla was sentenced to jail time and ordered to pay fines and fees.

On February 8, 2018, the Department issued to Mr. Abdalla an Intent to Deny his application based on his criminal convictions.

On February 8, 2018, Mr. Abdalla telephoned the Department and his call was transferred to Mr. Jones.

Mr. Jones provided credible testimony that Mr. Abdalla appeared agitated and was loud and hostile, telling Mr. Jones that the Intent to Deny had better be a joke. Mr. Abdalla also repeatedly stated that he would come down there and deal with the Department and Mr. Jones. When Mr. Jones asked Mr. Abdalla whether he was making a threat, Mr. Abdalla told Mr. Jones he could take it anyway he wanted to. The telephone call lasted about five to eight minutes, and Mr. Abdalla concluded the call by telling Mr. Jones, I’ll be there and I’ll be seeing you.

Mr. Jones reported Mr. Abdalla’s telephone call to the Phoenix Police.

At the hearing, Mr. Abdalla appeared to down-play his conversation with Mr. Jones, pointing out through questions of Mr. Jones, that he had not explicitly actually threatened Mr. Jones’s life or safety.

Mr. Abdalla acknowledges his criminal convictions, but asserts that the Department should not judge him based on his past actions, but rather should look at his efforts to rehabilitate himself. Mr. Abdalla presented no substantial evidence to show that he has been rehabilitated, but rather merely testified to the effect that his last conviction was several years ago.

Mr. Abdalla also testified that he has been licensed in Texas for six years, during which time there have been no complaints against his license.

In his disclosure statements that were submitted to the Department with his application, Mr. Abdalla wrote that between June 2008 and May 2015, he was dealing with grief and substance abuse stemming from his father’s death.

CONCLUSIONS OF LAW

Mr. Abdalla 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. Abdalla has been convicted of multiple crimes over the course of several years, and that he violated his probation during that time. These actions show that Mr. Abdalla is not a person of honesty, truthfulness and good character within the meaning of Ariz. Rev. Stat. section 32-2153(B)(7). Mr. Abdalla’s violation of probation is also a violation of Ariz. Rev. Stat. section 32-2153(B)(9). In addition, Mr. Abdalla’s telephone call to Mr. Jones raises further questions related to his character.

Consequently, the Department has authority to deny Mr. Abdalla’s application.

Mr. Abdalla has not met his burden to show that the decision to deny his application should be reversed.

ORDER

IT IS ORDERED that Elias Abdalla’s appeal is dismissed and the Department’s decision to deny his application for licensure is affirmed.

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, April 30, 2018

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate