ALJDEC decisions subject to certification as final

19F-353-REL-RES · Department of Real Estate · 2019-07-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 14, 2019, at 1:00 p.m. APPEARANCES: The Arizona Real Estate Department (“the Department”) was represented by Deian Ousounov, Esq., Assistant Attorney General; Theresa Abril (“Petitioner”) appeared on her own behalf. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background 1. The Department is the duly constituted authority for licensing and regulating real estate salespersons and brokers in Arizona. 2. On or about August 22, 2017, the Department issued Real Estate Salesperson License No. SA673971000 to Petitioner. That license is not currently active and will expire on August 31, 2019.[1] 3. The Department referred its summary suspension of and intent to revoke Petitioner’s real estate salesperson license to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. The Department’s Notice of Hearing charged cause to discipline Petitioner’s license under A.R.S. §§ 32- 2153(B)(7) and 32-2157(B). 4. At the hearing, the Department submitted nine exhibits and presented the testimony of Robin King, its Manager of Auditing and Investigations. Petitioner testified on her own behalf. Additional Hearing Evidence 5. On or about May 21, 2018, the Arizona Department of Public Safety sent a letter to Petitioner, with a copy to the Department, informing her that her Level One Fingerprint Clearance Card (“FCC”) had been suspended because, on or about May 20, 2018, she had been arrested for Felony Child/Vulnerable Adult Abuse involving Domestic Violence, Felony Aggravated Assault involving Domestic Violence, Felony Misconduct Involving Weapon—Discharge Weapon on Occupied Structure involving Felony Domestic Violence, Misdemeanor Criminal Damage, and Misdemeanor Disorderly Conduct, both involving Domestic Violence.[2] 6. On or about May 23, 2018, a direct complaint was filed against Petitioner in Maricopa County Superior Court Case No. CR2018- 124780-001, charging her with knowingly discharging a firearm at a residential structure, a dangerous felony, intentionally placing another in reasonable apprehension of imminent physical injury by pointing a handgun at him, a dangerous felony (two counts), and criminal negligence by discharging a firearm within the municipal limits of the City of Phoenix.[3] 7. On or about March 14, 2019, Petitioner pled guilty to Discharge of a Firearm at a Structure, a Class 2 Felony, and Aggravated Assault, a Class 3 Felony and Domestic Violence Offense, in Case No. CR2018-124780-001.[4] 8. On or about March 15, 2019, Petitioner filed a handwritten statement with the Department disclosing her entry into the plea agreement, as required by applicable regulation.[5] 9. On or about March 21, 2019, the Department sent a Notice to Submit Valid Fingerprint Clearance Card to Petitioner via certified letter, requesting that she provide a copy of her valid FCC or a written explanation of why she had not been able to obtain an FCC within 10 days.[6] 10. On March 26, 2019, the Department’s Commissioner issued an order summarily suspending Petitioner’s License No. SA673971000 under A.R.S. §§ 32-2153 and 32-2157, finding that “the public health, safety, and welfare require[d] emergency action . . . .”[7] The Commissioner’s order was subsequently vacated, but on April 8, 2019, was reissued.[8] 11. On May 14, 2019, Petitioner was sentenced pursuant to her guilty plea in Case No. CR2018-124780-001 to two terms of four years’ supervised probation, to be served concurrently.[9] 12. Ms. King testified that, under applicable statute, the Department cannot issue a license to or renew the license of a person who is on felony probation and that Petitioner will not be able to obtain or renew her real estate salesperson’s license until she has satisfactorily completed her probation. Ms. King noted that Petitioner had timely disclosed her felony convictions pursuant to her plea agreement, as required. CONCLUSIONS OF LAW Pursuant to A.R.S. § 32-2153(E), the suspension of a license by an order of the Commissioner shall not deprive the Department of jurisdiction to proceed with any investigation of or disciplinary proceeding against the licensee. The Department has jurisdiction over Petitioner and the subject matter in this case.[10] The Department bears the burden of proof to establish cause to discipline Petitioner’s license and factors in aggravation of any penalty to be imposed by a preponderance of the evidence.[11] Petitioner bears the burden to establish affirmative defenses and factors in mitigation of the penalty by the same evidentiary standard.[12] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[13] 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.”[14] A.R.S. § 32-2153(B) allows the commissioner to suspend or revoke a license if the licensee has not shown that she is a person of honesty, truthfulness and good character. Petitioner recently was convicted of two felony crimes, including aggravated assault involving domestic violence, due to her extraordinarily poor decision to discharge a firearm in an occupied structure and is currently on probation for the crimes. The Department established that Petitioner lacks good character at this time. A.R.S. § 32-2157(B) provides that, “[i]f the commissioner finds that the public health, safety or welfare imperatively requires emergency action, and incorporates a finding to that effect in the commissioner's order, summary suspension of a license or sales may be ordered” and that “[g]rounds for issuance of an order of summary suspension include the violation of any of the provisions of section 32-2153 . . . .” The Department established that summary suspension of Petitioner’s license was required to protect the public because Petitioner was convicted of two serious crimes that occurred in the victim’s residence. RECOMMENDED ORDER In view of the foregoing, IT IS ORDERED affirming the Department’s Commissioner’s order summarily suspending Petitioner Theresa Abril’s Real Estate Salesperson’s License Number SA673971000. IT IS FURTHER ORDERED revoking Petitioner’s Real Estate Salesperson’s License Number SA673971000 on the effective date of the final order in this matter. 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, July 3, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] See the Department’s Exhibit 1. [2] See the Department’s Exhibit 2. [3] See the Department’s Exhibit 3. [4] See the Department’s Exhibit 4. [5] See the Department’s Exhibit 5. [6] See the Department’s Exhibit 6. [7] The Department’s Exhibit 7. [8] See The Department’s Exhibit 10. [9] See the Department’s Exhibit 11. [10] See A.R.S. § 32-2153. [11] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [12] See A.A.C. R2-19-119(B)(2). [13] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [14] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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