ALJDEC decisions subject to certification as final

19F-332-REL · Department of Real Estate · 2019-07-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 21, 2019 APPEARANCES: No one appeared for Petitioner; Deian Ousounov, Esq. for the Department of Real Estate ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On May 14, 2019, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing and Complaint setting the above-captioned matter for hearing at 1:00 p.m. on June 21, 2019 at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing provided that hearing was being held to determine whether grounds exist to revoke or suspend Respondent Jason C. Poyner’s License No. BR543102000. 3. The Department summarily suspended Mr. Poyner’s license on March 28, 2018, and his license was due to expire on June 30, 2019. 4. In a Joint Motion filed by the parties on June 19, 2019, Mr. Poyner, through counsel, informed the tribunal that he was withdrawing his appeal and that he would not be appearing at the hearing. Consequently, the matter was convened in his absence. 5. The Department presented the testimony of investigator Linda Bevins. 6. On August 8, 2016, Mr. Poyner and others, including Phoenix Property Group of Arizona LLC for which Mr. Poyner was the sole member, entered a Consent Order in which Mr. Poyner acknowledged having violated the Department’s statutes and rules. 7. On August 20, 2018, in the District Court of Arizona, Mr. Poyner pleaded guilty to misprision of felony, a Class E felony. 8. In that plea agreement, Mr. Poyner acknowledged that he made a false statement on a HUD-1 Settlement Agreement and that he knew that this was a felony. 9. Ms. Bevins provided credible testimony showing that Mr. Poyner was committing mortgage fraud by engaging in transactions that were not “arm’s length” transactions. 10. On February 13, 2019, the District Court found Mr. Poyner guilty of Misprision of Felony, and among other things, it sentenced him to twenty-four months’ probation. 11. Ms. Bevins provided credible testimony showing that the acts that led to Mr. Poyner’s conviction were dishonest in nature and were related to the business of real estate. 12. Through the Notice of Hearing the Department alleged that Mr. Poyner violated Ariz. Rev. Stat. sections 32-2153(A)(3), (B)(2), (B)(5), (B)(7) and (B)(10), and Ariz. Admin. Code section R4-28- 303(D). 13. At the hearing, the Department informed the tribunal that Mr. Poyner had provided proof that he had not violated Ariz. Rev. Stat. section 32-2153(A)(3) or Ariz. Admin. Code section R4-28- 303(D) and it withdrew those allegations. 14. The Department requested that the summary suspension of Mr. Poyner’s license be upheld and that his license be revoked. CONCLUSIONS OF LAW 1. The Department bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(2). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 3. A preponderance of the evidence is: The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

4. Ariz. Rev. Stat. section 32-2153(B) provides in pertinent part: 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: *** 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. *** 5. Been guilty of any conduct, whether of the same or a different character than specified in this which constitutes fraud or dishonest dealings. *** 7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character. *** 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. 5. Because Mr. Poyner was convicted of a felony, the Department had authority to summarily suspend his license. See Ariz. Rev. Stat. §§ 32-2153(B) and 32-2157(B). 6. The preponderance of the evidence shows that Mr. Poyner has been convicted Misprision of Felony, a Class E felony, which is a violation Ariz. Rev. Stat. sections 32-2153(B)(2), (B)(5), (B)(7), and (B)(10). 7. Based on the proven violations, the Department has authority to revoke Mr. Poyner’s license. Ariz. Rev. Stat. §§ 32-2153(A), (B) and (F). 8. Considering the facts and circumstances of this matter, Mr. Poyner’s license should be revoked. See Ariz. Rev. Stat. §§ 32- 2124(M) and 32-2130(I). ORDER IT IS ORDERED that Jason C. Poyner’s License No. BR543102000 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, July 10, 2019.

/s/ Thomas Shedden Thomas Shedden 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