ALJDEC decisions subject to certification as final

18F-DI-339-REL · Department of Real Estate · 2018-11-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 2, 2018 APPEARANCES: Respondent Mark D. Cavan appeared on his own behalf. The Arizona Department of Real Estate was represented by Assistant Attorney General Lynette Evans. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT On or about October 30, 1998, the Arizona Department of Real Estate (Department) issued Salesperson License No. SA513247000 to Mark D. Cavan (Respondent). On or about May 3, 2018, the Department suspended Respondent’s license, which then expired on October 31, 2018. On or about February 13, 2018, Respondent entered a plea of guilty to and was convicted of Aggravated DUI while License was Suspended/Revoked for DUI, a Class 4 Felony, in the Superior Court of Arizona, Maricopa County, case number CR2016-001550. Respondent was sentenced to one (1) year in the state prison and two (2) years of probation upon release. Respondent began his prison sentence on February 23, 2018, and was scheduled to be released on October 17, 2018. Respondent did not disclose the conviction to the Department as required by statute. The Department was notified of the conviction by the Maricopa County Clerk of the Superior Court on February 16, 2018. Upon a review of Respondent’s court records, the Department found that on October 2, 2008, Respondent had been convicted of Endangerment, a Class 6 Undesignated Felony, and Driving Under the Influence of Intoxicating Liquor or Drugs, a Misdemeanor, in the Superior Court of Arizona, Maricopa County, case number CR2008-169998. Respondent was sentenced to four (4) months in the county jail and two (2) years of probation for both offenses with the sentences to run concurrently. Respondent did not disclose the October 2, 2008 conviction to the Department as required by statute. On or about February 23, 2011, Respondent submitted an online renewal application in which Respondent answered “no” to the following questions: 12. Been convicted or entered into a plea agreement or a plea of NOLO CONTENDERE (no contest) to ANY felony 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 you have been pardoned? 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 you have been pardoned? Note – DUI and reckless driving are misdemeanors and must be disclosed. Minor traffic citations do not constitute a misdemeanor or felony offense.

The Department issued an Order of Summary Suspension and Notice of Opportunity for Hearing (Order) on May 3, 2018. Respondent appealed the Order. The Department argued that Respondent’s conduct constituted violations of A.R.S. § 32-2153(A)(3);[1] A.R.S. § 32-2153(B)(2); A.R.S. § 32- 2153(B)(7);[2] and A.A.C. R4-28-303(D)[3] and warranted the revocation of his license. At the hearing, Respondent did not dispute any of the allegations against him. Respondent indicated he had not been aware of the requirement to disclose convictions. Respondent stated that he hoped to be granted a license after he completed his probation. CONCLUSIONS OF LAW The Commissioner has jurisdiction over Respondent and the subject matter in this case. Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Department has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119(A). A.R.S. § 32-2157(C) provides, in pertinent part, as follows: The department may issue a summary suspension when the department receives notice that a person licensed pursuant to this chapter has been convicted of a felony offense and is currently incarcerated for the conviction, paroled or under the supervision of a parole or community supervision officer or is on probation as a result of the conviction. This subsection does not limit the commissioner's authority to seek revocation of a license or other disciplinary action pursuant to this chapter.

The evidence of record established that Respondent was convicted in a court of competent jurisdiction of Aggravated DUI while License was Suspended/Revoked for DUI, a Class 4 Felony, within the meaning of A.R.S. § 32-2153(B)(2). At the time, of the summary suspension, Respondent was incarcerated for that conviction. Therefore, the imposition of a summary suspension was warranted. The evidence of record also established that Respondent failed to report the 2008 criminal conviction of Endangerment, a Class 6 Undesignated Felony, and Driving Under the Influence of Intoxicating Liquor or Drugs, a Misdemeanor, or the 2018 criminal conviction of Aggravated DUI while License was Suspended/Revoked for DUI, a Class 4 Felony, within 10 days in violation of A.A.C. R4-28-303(D). The Department established it had grounds to revoke Respondent’s license pursuant to A.R.S. § 32-2153(A)(3); A.R.S. § 32-2153(B)(2); A.R.S. § 32- 2153(B)(7); and A.A.C. R4-28-303(D). RECOMMENDED ORDER IT IS ORDERED upholding the summary suspension issued by the Department. IT IS FURTHER ORDERED revoking Mark D. Cavan’s License No. SA513247000. 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, November 19, 2018.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] A.R.S. § 32-2153(A) provides, in pertinent part, as follows:

A. 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 if it appears that the holder or applicant, within five years immediately preceding, in the performance of or attempt to perform any acts authorized by the license or by this chapter, has: . . . . 3. Disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner.

[2] A.R.S. § 32-2153(B) provides, in pertinent 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.

[3] A.A.C. R4-28-303(D) provides, in pertinent part, as follows:

D. A salesperson or broker shall notify the Department in writing within 10 days of any change in the individual’s personal information or qualifications. The salesperson or broker shall include in the notice the individual’s name, signature, license number, and: 1. If disclosing information required under R4-28-301, such as a criminal conviction, adverse judgment, denial or restriction of or disciplinary action against a professional or occupational license, or recovery fund payment on the person’s behalf, a written statement providing detailed information and, upon request by the Department, the supporting documentation identified in R4-28-301(A)(2) . . . .

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Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826