ALJDEC decisions subject to certification as final

19F-002-REL-RES · Department of Real Estate · 2019-03-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 21, 2019 APPEARANCES: Respondent Scott Allen West did not appear. Assistant Attorney General Grant A. Pearson appeared on behalf of the Arizona Department of Real Estate. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On January 15, 2019, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing and Complaint (“Notice of Hearing”) regarding this matter setting an administrative hearing to be held with the Office of Administrative Hearings at 1:00 p.m. on February 21, 2019. 2. The Notice of Hearing contained allegations regarding the conduct of Respondent that the Department contended violated the Arizona real estate laws. Through the administrative hearing process, the Department sought to revoke Respondent’s real estate salesperson’s license. 3. On February 13, 2013, the Department issued original real estate salesperson license number SA106355000 to Respondent Scott Allen West. See Exhibit 1. 4. Mr. West’s real estate salesperson license is inactive and expires on February 28, 2019. See id. 5. On or about May 30, 2018, Mr. West was convicted of Disorderly Conduct-Fighting, a misdemeanor 1 and Domestic Violence Offense, in the Superior Court of Arizona, Maricopa County. See Exhibit 2. 6. Mr. West was sentenced to supervised probation for 27 months beginning May 30, 2018. See id at 2. 7. The conviction was based on an allegation that Mr. West intentionally, knowlingly, or recklessly caused physical injury to Chanel R. Hammet West on or about May 31, 2017, when he used a nunchaku, a deadly weapon or dangerous instrument. See Exhibit 3. 8. According to the release questionnaire associated with the arrest, Mr. West admitted to using the nunchaku to strike Chanel West. The release questionnaire also provided, in relevant part as, follows: [1] During post Miranda Interview, the defendant admitted to having used the nunchaku to strike the victim in the head.

The victim was treated at a hospital and received nine staples in her head due to the Injuries caused by the blunt force trauma of being struck with nunchaku.

During post Miranda Interview the defendant admitted he made homemade nunchaku using two pipes wrapped in black electrical tape and connected with a white nylon cord. He further admitted that he is not a practitioner In the martial arts nor does he have special training to use them. He further stated he hid the nunchaku in the hallway wall return air vent before emergency responders arrived because he was not sure if he was supposed to have them.

A search warrant was granted and executed. A butter knife and kitchen knife were located on the living room floor consistent with where Interviews Indicate the Incident occurred. Furthermore, the nunchaku was located in the hallway air return vent as stated by the defendant. Let it be known that the screws had to be removed from the air vent during search warrant execution consistent with someone having intentionally hid the nunchaku. 9. The Deputy County Attorney on behalf of the State of Arizona alleged in his statement of aggravating circumstances that the offense was committed in the presence of a child. See Exhibit 4, pg. 2. 10. On or about June 13, 2018, the Department notified Mr. West that it had initiated an investigation against him because he failed to disclose a recent criminal conviction. See Exhibit 5. The notice provided in relevant part, as follows.[2] The Arizona Department of Real Estate, (Department) has initiated an investigation against you, alleging that you failed to disclose a recent criminal conviction for Disorderly Conduct with Domestic Violence D in Mesa Arizona.

In order for the Department to fully understand the situation, we request a written, “signed” statement concerning your knowledge and actions regarding this issue. In addition to your signed statement, please provide a complete copy of any and all document in support of your answer:

Plea Agreement Mesa Police Department Police Report (All Pages with attached supplements if applicable) Correspondence records indicating that you notified your broker of the arrest and conviction (if applicable)

You are required to submit your signed statement and documentation no later than 06/20/18. 11. The June 13, 2018 notice was returned to the Department as undeliverable. See Exhibit 6. 12. Mr. West did not provide an updated address with the Department. Mr. West did not provide any information about the conviction, nor did he report the conviction to the Department. 13. On or about August 13, 2018, Mr. West’s probation officer filed a Petition to revoke Probation – Order for Warrant because the officer had reason to believe that Mr. West left the state and did not report as directed on June 20, 2018. 14. On August 13, 2018, Judge Utiki Spurling Lang issued an arrest warrant for Mr. West. CONCLUSIONS OF LAW Because at all times relevant to this matter, Mr. West was subject to the provisions of Title 32, Chapter 20, Arizona Revised Statutes, the Department has jurisdiction over this matter. Because this matter is disciplinary in nature, the Department bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] The Department established by a preponderance of the evidence that Mr. West was convicted of a crime involving violence against another person, which is a violation of A.R.S. § 32-2153(B)(10). The Department established by a preponderance of the evidence that Mr. West failed to notify the Department in writing within 10 days of his criminal conviction and any change in his personal information, which is a violation of A.A.C. R4-28-303(D)(1). 5. Based on the above-found violations of the provisions of Title 32, Chapter 20 of the Arizona Revised Statutes, Mr. West also violated A.R.S. § 32-2153(A)(3). 6. The Department established grounds to revoke the license issued to

Mr. West as set forth above, pursuant to A.R.S. §§ 32-2153(A)(3). RECOMMENDED ORDER Based on the foregoing, It is recommended that on the effective date of the Order entered in this matter, the Commissioner revoke Mr. West’s real estate salesperson’s license SA106355000. Done this day, March 13, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

----------------------- [1] See id at pg. 4. [2] See id. [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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