ALJDEC decisions subject to certification as final

18F-DI-378-REL · Department of Real Estate · 2018-10-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 26, 2018 APPEARANCES: Petitioner Maria Rios-Garcia appeared on behalf of herself. Assistant Attorney General Lynette Evans appeared on behalf of the Arizona Department of Real Estate. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On July 9, 2018, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing setting the above- captioned matter for hearing on August 15, 2018 at the Office of Administrative Hearings in Phoenix, Arizona. [1] 2. The Notice of Hearing provided that hearing was being held to determine whether grounds exist to affirm the Department’s decision to deny Petitioner Maria Rios-Garcia’s application for a real estate broker’s license. 3. Through the Notice of Hearing, the Department alleges that Ms. Rios-Garcia has violated Ariz. Rev. Stat. sections 32-2153(B)(2) and (B)(10). 4. The Department presented the testimony of its Senior Investigator Brandon Stuart, and submitted exhibits 1 through 5. Ms. Rios-Garcia appeared and testified on her own behalf, and submitted exhibits 1 through 5. 5. On May 29, 2018, the Department received Ms. Rios-Garcia’s application for a real estate broker’s license. 6. In her application, Ms. Rios-Garcia answered yes to the question asking whether she had ever been convicted of, or pleaded no contest to a felony. 7. In her application, Ms. Rios-Garcia answered yes to the question asking whether she had ever been convicted of, or pleaded no contest to a misdemeanor. 8. On January 31, 1997, in Case No. 96CR650, Ms. Rios-Garcia pleaded guilty to, and was convicted of First Degree Criminal Trespass, a class 5 felony, in the 20th Judicial District Court, Boulder, Colorado, case number 96CR560. 9. On January 31, 1997, in Case No. 96CR650, Ms. Rios-Garcia pleaded guilty to, and was convicted of Third Degree Assault, a misdemeanor, in the 20th Judicial District Court, Boulder County, Colorado, case number 96CR650. 10. Ms. Rios-Garcia was sentenced to six months in the Boulder County Jail and three years of probation, restitution, fees and costs for the convictions. 11. On February 8, 2018, the Department issued to Ms. Rios-Garcia an Intent to Deny her application based on her criminal convictions. 12. On June 17, 2018, Ms. Rios-Garcia filed a timely appeal to the Intent to Deny Application letter. 13. At the hearing, Ms. Rios-Garcia testified that she applied for a real estate broker’s license based on her 20 years of experience as a realtor. Ms. Rios-Garcia stated that she has no plans of opening her own brokerage. 14. Ms. Rios-Garcia acknowledged her criminal convictions, but asserted that the Department should not judge her based on her past actions, but rather should look at her accomplishments. Ms. Rios-Garcia testified that she thought that one of her friends would die in the altercation that led to her convictions. MS. Rios-Garcia testified that she wishes that she would have just called 911. Ms. Rios-Garcia testified that she lives a life of peace and integrity. 15. Ms. Rios-Garcia also testified that she has been licensed in Florida for several years, during which time there have been no complaints against her license. 16. Timothy Allen, Jr. is an attorney and real estate broker in Florida. Mr. Allen first met Ms. Rio-Garcia ten years ago. Mr. Allen has worked with Ms. Rios-Garcia in the real estate industry. Mr. Allen stated that Ms. Rios-Garcia is not the person that she was in 1997. Mr. Allen testified that Ms. Rios-Garcia is honest, truthful, and has good moral character. 17. Ms. Rios-Garcia offered a letter of character from Mr. Allen who wrote “I do not believe that character traits of moral turpitude or violence exist in [Ms. Rios-Garcia].” 18. Ms. Rios-Garcia also offered letters of character from Jannique Stewart, Krista Bloom, and Jenna Carucci in support of her appeal of the denial determination. 19. Jannique Stewart met Ms. Rios-Garcia through a women’s ministry and church. Ms. Stewart has known Ms. Rios since 2012. Ms. Stewart wrote, “I know that [Ms. Rios-Garcia] will make a phenomenal broker in the State of Arizona because of her commitment to integrity, her trustworthy character and her overall professionalism. 20. Krista Bloom, PH.D. LCSW, has known Ms. Rios-Garcia for over 15 years. Ms. Rios-Garcia helped Dr. Bloom invest in properties in South Florida. Dr. Bloom described Ms. Rios-Garcia as being honest and straightforward. 21. Jenna Carucci is a Store Manager for Bath & Body Works in Fort Lauderdale Florida. Ms. Rios-Garcia worked under the supervision of Ms. Carucci for approximately 6 months. Ms. Carucci wrote, “[Ms. Rios-Garcia] is an extremely capable employee who performed well with other team members; demonstrates excellent selling skills, is effective at “peer to peer” coaching, leads with effective customer engagement, and has shown serious initiative to grow with the company.” 22. The Department’s position is that Ms. Rios-Garcia has been convicted of a felony and a misdemeanor crime involving violence against another person. The Department argued that grounds exist to deny Ms. Rios-Garcia’s original application for a real estate broker’s license under Ariz. Rev. Stat. section 32- 2153(B)(2) and (B)(10). The Department contended that Ms. Rios-Garcia should be allowed to practice only under a mentor. Specifically, the Department contended that Ms. Rios- Garcia should be granted a provisional real estate broker’s license for two years. CONCLUSIONS OF LAW 1. The Commissioner has jurisdiction over the subject matter in this case. 2. Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Petitioner 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). 3. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). It 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). 4. A.R.S. § 32-2153 provides 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 if it appears that the holder or applicant has:

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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.

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10. Violated any federal or state law, regulation or rule that relates to real estate or securities or that involves forgery, theft, extortion, fraud, substantial misrepresentation, dishonest dealings or violence against another person or failure to deal fairly with any party to a transaction that materially and adversely affected the transaction. This paragraph applies equally to violations of which the licensee was convicted in any lawful federal or state tribunal and to any admissions made in any settlement agreement by the licensee to violations.

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5. The Department’s concern in this case is legitimate and well-founded. A person with a criminal record must be given close scrutiny and careful consideration when she applies for a professional license. 6. Once good character is shown as absent, it is not automatically regained by the mere passage of time. The concern of the Department is essential and legitimate in light of the Petitioner’s past convictions, felony and misdemeanor involving a violent crime. 7. Petitioner contended that she currently is a person of good character. In support of that contention, Petitioner testified on her own behalf, presented the testimony of one character witness, and presented four character letters. 8. The above-mentioned letters of character authored by Dr. Bloom, Ms. Stewart, and Ms. Carucci are given little weight because Dr. Bloom, Ms. Stewart, and Ms. Carucci were not present to be questioned by the Department’s counsel or by the Administrative Law Judge and could not be observed by the Judge. Further, due to the content of the letters, the extent of information known by Dr. Bloom, Ms. Stewart, and Ms. Carucci, and certain relevant details concerning Petitioner could not be discerned nor could such information be explored because Dr. Bloom, Ms. Stewart, and Ms. Carucci did not testify at the hearing. 9. Moreover, the uncontested evidence established that Petitioner was convicted of Third Degree Assault, a crime of violence against another person, which is a violation of Ariz. Rev. Stat. section 32-2153(B)(10). The evidence also established that Petitioner was convicted of the felony of First Degree Criminal Trespass, which is a violation of Ariz. Rev. Stat. section 32-2153(B)(2). 10. 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 broker at this time. Consequently, this Tribunal concludes that Petitioner’s application for licensure should be denied. 11. The conviction of a crime is not a permanent bar to being licensed. However, Petitioner, through her own testimony and the testimony of Mr. Allen, has met the burden of proving by the preponderance of the evidence that she has sufficient good character and reputation to satisfy the statutory requirement for licensure as a real estate salesperson. RECOMMENDED ORDER Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends to the Arizona Department of Real Estate Commissioner to affirm the Department’s June 7, 2018 Intent to Deny Application for Original Real Estate Broker’s License No. BR677290000. It is also recommended that Petitioner be issued a two year provisional real estate broker’s license upon the effective date of the Order entered in this matter. 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, October 16, 2018.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

----------------------- [1] The hearing was continued to September 26, 2018.

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