ALJDEC decisions subject to certification as final

19F-064-REL · Department of Real Estate · 2019-04-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 12, 2019 APPEARANCES: Joshua Snyder (Respondent) appeared, representing himself. Assistant Attorney General Deian Ousounov represented the Department of Real Estate. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Commissioner of the Arizona Department of Real Estate. FINDINGS OF FACT

1. On August 13, 2013, the Arizona Department of Real Estate (Department) issued real estate salesperson’s license SA649045000 to Respondent. On his original application, Respondent had informed the Department that he had five convictions, four of which were related to alcohol. 2. Following Respondent’s December 2015 notification of a November 20, 2015 conviction, by Plea Agreement, for Disorderly Conduct in Scottsdale City Court [Case M-0751-CR-[number redacted]], the Department offered Respondent an agreement reflected in the CONSENT ORDER executed on April 1, 2016. 3. The CONSENT ORDER resulted in a two-year provisional licensure, a penalty, and a requirement to remain in compliance with the applicable real estate statutes and rules. 4. On February 27, 2018, Respondent timely disclosed to the Department a February 13, 2018 conviction, by Plea Agreement, for Obstructing Highway/Public Thoroughfare, an alcohol-related offense and misdemeanor, in Scottsdale City Court [Case M-0751-CR-[number redacted]]. Respondent was court-ordered to pay fines and fees. 5. The Department again offered Respondent an agreement reflected in the CONSENT ORDER executed in March 2018. This CONSENT ORDER resulted in an extension of Respondent’s provisional licensure for two more years, required that he participate in a support group and counseling, and required that he remain in compliance with the applicable real estate statutes and rules. 6. On June 26, 2018, Respondent timely disclosed to the Department a June 19, 2018 conviction, by Plea Agreement, for DUI, a misdemeanor, in Payson Justice/Magistrate Court [Case 2018TR12221]. Respondent was sentenced to one-day in jail, alcohol counseling, fines, and fees. 7. By Notice of Hearing dated February 1, 22019, the Department notified Respondent that it was taking disciplinary action to revoke Respondent’s real estate salesperson’s license SA649045000 based on the alleged violations of A.R.S. § 32-2153(A)(3) and (A)(24). 8. At hearing, the Department presented the basis for its decision. The reasons include disregard of, or violations of, of the Department’s statutes and rules in, as here, failure to remain in compliance with the CONSENT ORDER. The Department alleged that Respondent had violated A.R.S. § 32-2153(A)(24) and, thus, (A)(3). The Department expressed concern that Respondent would not follow applicable law and regulatory requirements for real estate agents because he had continued in a pattern of alcohol-related actions violating the conditions of his extended provisional license. The Department requested that its proposed revocation of Respondent’s licensure be upheld, further noting that Respondent would be able to reapply in two years. 9. At hearing, Respondent openly acknowledged his past and indicated that he had not taken ownership of his alcohol issues in the past but is currently in a program to do so. Respondent indicated that he is fully prepared for a 2-year period of non-licensure, but requested that any further consent order be back-dated to this hearing date in order to take into account the fifty (50) or so days it might take to receive a decision.

CONCLUSIONS OF LAW 1. This hearing was conducted in accordance with Arizona Revised Statutes (A.R.S.) § 41-1092.01 et seq. Respondent has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See Arizona Administrative Code (A.A.C.) R2-19-119. 2. A.R.S. § 32-2153(A) provides as follows: 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 provisions of this chapter or any rules adopted by the commissioner. …….

24. Violated any condition or term of a commissioner’s order.

3. The Commissioner is authorized under A.R.S. § 32-2153(A) to suspend or revoke licenses for the reasons stated above. The Department’s concerns in these areas are legitimate. A person who fails to comply with a commissioner’s order demonstrates the possibility that the person is not able to be regulated in the real estate practice. The Department specified at hearing that it is not proceeding on the basis of any alleged dishonesty. The Department relies on a person, once licensed, to follow any and all applicable laws, rules and commissioner orders. 4. Respondent has the burden of proving by the preponderance of the evidence that he has resolved the alcohol-related issues that led to the actions that resulted in the conviction, that the public would be protected from any such actions, and that he has sufficient good character and reputation to satisfy the statutory requirements for continued licensure as a real estate salesperson. 5. The Department alleged that Respondent violated A.R.S. § 32- 2153(A)(24) and, thus, A.R.S. § 32-2153(A)(3). The Administrative Law Judge concludes that the hearing record evidences the violations. 6. Based on the evidence presented, the Administrative Law Judge concludes that Respondent has conceded that his repeated alcohol-related issues, specifically the June 2018 conviction, were violations of the Commissioner’s CONSENT ORDERs and the terms of his provision licensure, and that this latest conviction warrants revocation of the licensure. The Administrative Law Judge concludes that the Department has authority to offer a further consent order to Respondent; however, the Administrative Law Judge cannot recommend such given the acknowledgement of the violations and the pattern of alcohol-related issues while operating under existing CONSENT ORDERS. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Department’s revocation action be upheld. 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, April 1, 2019.

/s/ Kay A. Abramsohn Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

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