ALJDEC decisions subject to certification as final

19F-118-REL · Department of Real Estate · 2019-06-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 30, 2019 APPEARANCES: Petitioner Paul Ingram (“Petitioner”) failed to appear. The Arizona Department of Real Estate (“Department”) was represented by Assistant Attorney General Deian Ousounov. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _____________________________________________________________________ FINDINGS OF FACT On July 11, 2016, the Department issued real estate salesperson license SA518369000 to Petitioner; the license expired on July 21, 2018. On April 30, 2018, Petitioner pleaded guilty to and was convicted of Prostitution, a class one misdemeanor, in Mesa Municipal Court Docket No. [number redacted]. Petitioner was sentenced to fifteen (15) days in jail; he served one day in jail and the remaining fourteen (14) days in home detention. Petitioner disclosed the conviction to the Department. On June 28, 2018, through the Department’s Online Support system, Petitioner noted: I was arrested for solicitation/prostitution in Mesa, AZ in March, 2018. I entered a plea of guilty and the case was dismissed in Mesa Courts in April 2018. I was not placed on probation or no further actions or fine was required. I hired an attorney – Thomas Hogle to represent me. It was dismissed.[1]

Upon receiving Petitioner’s disclosure, the Department requested that Petitioner provide the documents required for conviction disclosures.[2] In response, Petitioner provided a copy of a form plea agreement, unexecuted, and again noted “the charge was dismissed.”[3] By letter dated July 11, 2018, via certified mail, the Department notified Petitioner that a complete statement in compliance with the Disclosure Documents Checklist LI400 was required within thirty (30) days.[4] The Department noted that a failure to do so would result in his file being forwarded to the Department’s Enforcement and Compliance Division for disciplinary action. Petitioner did not respond. In September 2018, the Department again requested that Petitioner provide the complete written statement and the documents.[5] Petitioner did not respond. Court documents demonstrated to the Department that, on September 24, 2018, the court set aside the judgment and dismissed the underlying criminal complaint pursuant to A.R.S. § 13-907.[6] By Notice of Hearing and Complaint dated April, 24 2019, the Department informed Petitioner that the Department was taking action to discipline his licensure, proposing to revoke the real estate salesperson license SA518369000. At the time of the noticed hearing and during the time the hearing was conducted, Petitioner failed to appear to present any evidence for consideration. The Department’s position is Petitioner failed to timely disclose the conviction and subsequently failed to respond to the Department’s investigative process and provide the requisite documents. The Department argued that the facts herein demonstrate that Petitioner is not a person that is able to be regulated and, therefore, his actions as a licensed real estate salesperson will not be able to be regulated, noting its overall concerns of protecting the public. The Department cites to the demonstrated violations of A.A.C R4-28-303(D)(1) and A.R.S. §§ 32- 2153(A)(3) and (B)(11) in asking for Petitioner’s real estate salesperson’s license to be revoked. CONCLUSIONS OF LAW The Department bears the responsibility to protect the public through its enforcement of licensing statutes.[7] This matter lies within its jurisdiction. Petitioner bears the burden of proof and must establish that he meets, or continues to meet, statutory qualifications for a real estate salesperson’s license by a preponderance of the evidence.[8] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[9] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[10] A.A.C. R4-28-303(D)(1) provides that a licensee shall disclose in writing changes in personal information or disqualifications within ten (10) days, including a criminal conviction, to the Department. The rule provides that the licensee shall also provide a “written statement providing detailed information and, upon request by the Department, the supporting documentation identified in R4-28-301(A)(2).” A.R.S. § 32-2153(A)(3) provides in relevant 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 an 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.

A.R.S. § 32-2153 provides in relevant 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: ..… 11. Failed to respond in the course of an investigation or audit by providing documents or written statements.

The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. The Department’s concern in this case is understandable. The hearing record demonstrated that, although Petitioner disclosed a conviction, he failed to do so timely and, subsequently, he failed to respond to the Department’s investigation. The hearing record further demonstrated that Petitioner’s real estate salesperson license automatically expired on July 21, 2018. However, such expiration does not relieve the Department of its authority and duty to regulate a person engaged in the business of real estate real estate activity. While Petitioner’s criminal conviction does not relate to dishonesty or fraud in the business of real estate, the conviction remains of concern as to whether Petitioner is able to adhere to the laws and rules related to real estate licensure. With Petitioner failing to appear and present any evidence in this case, the Administrative Law Judge concludes that Petitioner has not met his burden in this administrative proceeding. RECOMMENDED ORDER The Commissioner shall affirm the Department’s proposal to revoke Petitioner’s real estate salesperson license SA518369000. 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, June 19, 2019 /s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] See Exhibit 6. [2] See Exhibit 7. [3] See Exhibit 8. [4] See Exhibit 9. [5] Id. [6] See Exhibit 10. [7] See Sigmen v. Arizona Dept. of Real Estate, 169 Ariz. 383, 388, 819 P.2d 969, 974 (Ct. App. 1991). [8] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [9] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [10] Black’s Law Dictionary at 1220 (8th ed. 1999).

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