ALJDEC decisions subject to certification as final

19F-025-REL · Department of Real Estate · 2019-02-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 24, 2019 APPEARANCES: Respondent Ken West did not appear. Assistant Attorney General Deian Ousounov appeared on behalf of the Arizona Department of Real Estate. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On December 13, 2018, the Arizona Department of Real Estate issued a “Notice of Hearing” setting the above-captioned matter for hearing at 1:00 p.m. on January 24, 2019, at the Office of Administrative Hearings in Phoenix, Arizona. 2. In the Notice of Hearing, the Department alleged that Respondent Ken West violated Ariz. Rev. Stat. (“A.R.S.”) § 32- 2153(B)(2). 3. No representative for Mr. West appeared and the hearing was convened in his absence. The Department presented the testimony of its Senior Investigator, Wayne L. Jackson, and submitted exhibits 1 through 11. 4. On or about September 7, 2016, Mr. West entered into a Consent Agreement with the Department wherein Mr. West was issued a provisional real estate salesperson’s license. The Department entered into the Consent Agreement based upon its concerns about Mr. West’s behavior due to his felony convictions for Aggravated DUI, Aggravated Assault and Resisting Arrest on July 26, 2005, and Criminal Damage on May 19, 2005. 5. On September 15, 2016, the Department issued the provisional license to Ken West. See Exhibit 2. The license expired on September 30, 2018. See id. 6. On July 3, 2018, Mr. West plead guilty to and was convicted of Aggravated Assault, a class 4 felony, Criminal Damage, a class 6 designated felony, and Driving or Actual Physical Control While Under the Influence of Intoxicating Liquor or Drugs (“DUI”), a misdemeanor, in the Superior Court of Arizona, Yavapai County. See Exhibit 3. 7. Mr. West was sentenced to 2.5 years in prison and ordered to pay up to $500,000 in restitution. See Exhibit 3. 8. Mr. West did not disclose the 2018 convictions to the Department. 9. On July 12, 2018, the Department requested that Mr. West provide a written signed statement regarding his knowledge of his failure to disclose his 2018 convictions to the Department no later than July 19, 2018. See Exhibit 7. 10. On or about July 12, 2018, Mr. West’s brother provided an initial complaint, a plea agreement, and the sentencing documents related to the 2018 convictions on behalf of Mr. West. Mr. West’s brother also provided a signed statement from Mr. West regarding the convictions. See Exhibits 8, 9, and 10. 11. The release questionnaire from the County of Yavapai shows that with regard to Mr. West’s conviction 2018 conviction, Mr. West refused to submit to breath and blood tests shortly before he was placed under arrest. See Exhibit 5, pg. 2. 12. On August 1, 2018, the Department summarily suspended Mr. West’s real estate salesperson’s license. See Exhibit 11. 13. A hearing was held on January 24, 2019. CONCLUSIONS OF LAW 1. The Department bears the burden of persuasion. A.R.S. § 41- 1092.07(G). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. A.A.C. R2-19-119. 3. A preponderance of the evidence 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. The Notice of Hearing that the Department mailed to Mr. West at his address of record was reasonable and Mr. West is deemed to have received notice of the hearing.[1] 5. Pursuant to A.R.S. § 32-2153(E), the lapsing or suspension of a license by operation of law or by order or decision of the Commissioner shall not deprive the Commissioner of the jurisdiction to proceed with any investigation of or action or disciplinary proceeding against the licensee. The Department has jurisdiction over Mr. West and the subject matter in this case.[2] 6. The Department established by a preponderance of the evidence that Mr. West has been convicted of more than one felony in the Superior Court of Arizona, Yavapai County. 7. Considering the facts and circumstances of this matter, it is appropriate for the Commissioner to revoke Mr. West’s License under A.R.S. § 32-2153(B)(2). ORDER IT IS ORDERED that Ken West’s license number SA664971000 is revoked. 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, February 13, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [2] See A.R.S. § 32-2153.

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