ALJDEC decisions subject to certification as final

19F-301-REL · Department of Real Estate · 2019-05-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 07, 2018 at 1:00 PM. APPEARANCES: Chad Francise (“Petitioner”) appeared on his own behalf. Assistant Attorney General Deian Ousounov, Esq., appeared on behalf of the Arizona Department of Real Estate (“Department”) with Melanie Martinez as a witness. ADMINISTRATIVE LAW JUDGE: Jenna Clark. _____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Department. FINDINGS OF FACT Background and Procedure On or about May 16, 2005, the Department issued Real Estate Salesperson License No. SA562461000 to Petitioner.[1] The license expires on May 31, 2019.[2] On July 16, 2018, a Direct Complaint was issued for Petitioner in Superior Court of Arizona, County of Maricopa, case number DR 1725907.[3] Petitioner was charged with two counts: (1) that on or about November 22, 2017, he knowingly possessed cocaine for sale in violation of Ariz. Rev. Stat. §§ 13- 3401, 13-3408, 13-3418, 13-701, 13-702, and 13-801; (2) that on or about November 22, 2017, Petitioner knowingly possessed or used methamphetamine in violation of Ariz. Rev. Stat. §§ 13-3401, 13-3407, 13-3418, 13-701, 13- 702, and 13-801.[4] On January 17, 2019, Petitioner was convicted of Conspiracy to Commit Dangerous Drug-Possession for Sale, a class 2 Felony, in Superior Court of Arizona, County of Maricopa, case number CR2018-135098-001 DT, pursuant to Ariz. Rev. Stat. §§ 13-3407(A)(2), and sentenced to three months in jail and two and a half years supervised probation effective that day.[5] Count of the Direct Complaint was dismissed.[6] On August 16, 2018, a Direct Complaint was issued for Petitioner in Superior Court of Arizona, County of Maricopa, case number DR 1714312.[7] Petitioner was charged with one count: (1) that on or about June 28, 2017, he knowingly possessed or used cocaine in violation of Ariz. Rev. Stat. §§ 13-3401, 13-3408, 13-3418, 13-701, 13-702, and 13-801.[8] On January 17, 2019, Petitioner was convicted of Drug Paraphernalia- Possession/Use, a class 1 Misdemeanor, in Superior Court of Arizona, County of Maricopa, case number CR2018-140261-001 DT, pursuant to Ariz. Rev. Stat. § 13-3415(A), and sentenced to substance abuse treatment and two and a half years supervised probation effective that day.[9] On February 14, 2019, the Department issued an Order of Summary Suspension and Notice of Opportunity for Hearing (“Order”) to Petitioner.[10] On or about March 11, 2019, the Department received a letter from Petitioner’s attorney appealing the summary suspension of his license.[11] On April 01, 2019, the Department issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. on May 07, 2019, at the Office of Administrative Hearings, an independent state agency.[12] The Notice of Hearing shows that the hearing is to be conducted to determine whether grounds exist to revoke Petitioner’s real estate salesperson’s license.[13] Hearing Evidence Petitioner testified on his own behalf. The Department called Melanie to testify as a witness and submitted seven exhibits. The Notice of Hearing was also admitted into the evidentiary record. Petitioner testified that he became suicidal after his partner ended their twenty-two year relationship. Regarding his criminal convictions, Petitioner admitted that he purchased methamphetamines for a friend and kept the narcotic at his residence for that friend’s use. Petitioner further admitted that he used and sold cocaine, a narcotic drug, with/to a group of his friends. Petitioner also admitted to possessing THC edibles, baggies, syringes, and a scale. Ms. Martinez testified that the Department was especially concerned with the underlying conducted for which Petitioner was convicted because the offending conduct occurred June 28, 2017, and November 17, 2017, respectively. Per Ms. Martinez, such conduct had a direct negative impact on Petitioner’s ability to perform the duties and responsibilities associated with his license. CONCLUSIONS OF LAW 1. Because at all times relevant to this matter Respondent was subject to the provisions of Title 32, Chapter 20, Arizona Revised Statutes, the Commissioner of the Department has jurisdiction over Respondent and the subject matter in this case. 2. The case was properly brought before the Office of Administrative Hearings for adjudication pursuant to Title 2, Chapter 19, Article 1, of the Arizona Administrative Code. 3. Pursuant to Ariz. Rev. Stat. § 41-1092.07(G)(2) and Ariz. Admin. Code R2-19-119(B), the Department has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence.[14] 4. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.”[15] 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.”[16] 5. Ariz. Rev. Stat. § 32-2153(B) provides, in pertinent parts, 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 has:

* * * 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. * * * 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.

6. The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses.[17] Therefore, Department has discretion[18] to revoke a license under Ariz. Rev. Stat. § 32-2153(B)[19] as a real estate salesperson’s license is a privilege, not a right. 7. The material facts underlying this matter are not in dispute. 8. Petitioner was convicted in a court of competent jurisdiction of Conspiracy to Commit Dangerous Drug-Possession for Sale, a class 2 Felony; within the meaning of Ariz. Rev. Stat. § 32-13-3407(A)(2), and also convicted of Drug Paraphernalia-Possession/Use, a class 1 Misdemeanor; within the meaning of Ariz. Rev. Stat. § 13-3415(A). 9. After closely scrutinizing the underlying conduct which resulted in Petitioner’s criminal convictions, as well as the convictions themselves, this Tribunal holds that the evidence of record establishes by a preponderance of the evidence that the imposition of a summary suspension was warranted as Petitioner poses a significant threat to the public. 10. It is also the position of this Tribunal that Petitioner’s criminal convictions evince his inability to be regulated by the Department at this time. 11. Pursuant to Ariz. Rev. Stat. § 32-2153(B) the Department has established grounds to revoke Petitioner’s real estate salesperson’s license. RECOMMENDED ORDER Based upon the foregoing, IT IS RECOMMENDED that the Commissioner affirm the Department’s February 14, 2019, Order summarily suspending Real Estate Salesperson’s License No. SA562461000. It is FURTHEr recommended that upon the effective date of the Final Order[20] entered in this matter the Department revoke the Real Estate Salesperson’s License No. SA562461000 issued to Petitioner Chad Francise. 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, May 09, 2019.

/s/ Jenna Clark Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] See Department Exhibit 1. [2] Id. [3] See Department Exhibit 2. [4] Id. [5] See Department Exhibit 3. [6] Id. [7] See Department Exhibit 4. [8] Id. [9] See Department Exhibit 5. [10] See Department Exhibit 6. [11] See Department Exhibit 7. [12] See Notice of Hearing. [13] Id. [14] See Ariz. Admin. Code R2-19-119(A). [15] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [16] Black’s Law Dictionary 1182 (6th ed. 1990). [17] See Laws 1992, Ch. 14, § 3. [18] See Ariz. Rev. Stat. § 32-2153(B) (“The commissioner may . . . deny the issuance of a license” under certain circumstances (emphasis added)). [19] See, e.g., Matter of Rivkind, 164 Ariz. 154, 160-61, 791 P.2d 1037, 1043-44 (1990) (“[C]ourts are uniformly impressed by an attorney’s sincere efforts at rehabilitation and contrition, especially if such efforts demonstrate that the public and the legal system are unlikely to suffer a risk of future misconduct.”); Application of Spriggs, 90 Ariz. 387, 388-90, 368 P.2d 456 (1962) (where 4 years had passed since conviction for income tax evasion and evidence showed rehabilitation, applicant readmitted to bar without being required to pass bar exam again); Ulrich v. Board of Funeral Service, 289 Mont. 407, 961 P.2d 126 (1998) (“[A]n applicant whose license has been denied or revoked due to a criminal conviction . . . is entitled to apply for reinstatement and he is entitled to a full hearing . . . .”); cf. Matter of Wines, 135 Ariz. 203, 205-06, 660 P.2d 454, 456-57 (1983) (after considering circumstances of conviction as well as respondent’s poor prior record, Arizona Supreme Court did not disbar attorney but instead suspended him for a period of 5 years, with credit for 16 months interim suspension during pendency of proceedings). [20] Petitioner’s current address of record is 7131 E. Rancho Vista Dr., Unit 1009, Scottsdale, AZ 85251. The Final Order in this matter should be sent to Petitioner’s attention at that address.

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