ALJDEC decisions subject to certification as final

19F-439-REL · Department of Real Estate · 2019-09-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 13, 2019 APPEARANCES: Petitioner John Franchimone appeared on his own behalf. The Arizona Department of Real Estate was represented by Assistant Attorney General Lynette Evans. ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera _____________________________________________________________________ FINDINGS OF FACT On or about May 29, 2019, Petitioner John Franchimone (Petitioner) submitted to the Arizona Department of Real Estate (Department) a Salesperson Application Form, to be licensed as a real estate salesperson. As part of the application, Petitioner submitted a disclosure statement to the Department identifying several arrests and convictions. In the statement, Petitioner detailed events that occurred between 2007 and 2016. According to the court records obtained and presented by the Department, Petitioner’s criminal history as it relates to the instant matter consisted of the following: a. In or about 2008, Petitioner entered a plea of guilty to and was convicted of theft, in Mesa AZ. There were no court records detailing this incident except for the year of the incident. b. On or about June 5, 2008, Petitioner entered a plea of guilty to and was convicted of Driving Under The Influence and Driving With A Suspended/Revoked/Cancelled License, both misdemeanor charges, in the Gilbert Municipal Court, Gilbert, AZ, under case numbers 2008TR5141DU and 2008TR5144OC, respectively. The court placed Petitioner on 60 months of unsupervised probation. In 2019, Petitioner’s judgement of guilt for the driving under the influence conviction was set aside. c. On or about September 8, 2011, Petitioner entered a plea of guilty to and was convicted of Driving With A Suspended/Revoked/Cancelled License, a misdemeanor case, in the Gilbert Municipal Court, Gilbert, AZ, under case number 2011-CT- 0004593. Petitioner was ordered to pay a fine. d. On or about February 4, 2012, Petitioner entered a plea of guilty to and was convicted of Operating a Vehicle Without Required Ignition Interlock, a misdemeanor case, in the Scottsdale City Court, Scottsdale, AZ, under case number M-0751- TR-[number redacted]. Petitioner was ordered to pay a fine and participate in alcohol counseling. e. On or about November 13, 2013, Petitioner entered a plea of guilty to and was convicted of Speeding and having an Expired Vehicle Registration, a misdemeanor case, in the Gilbert Municipal Court, Gilbert, AZ, under case number 2013CT13006. Petitioner was ordered to pay a fine. f. On or about May 30, 2014, Petitioner entered a plea of guilty to and was convicted of Failure to Provide Proof of Insurance, a misdemeanor case, in the Gilbert Municipal Court, Gilbert, AZ, under case number 2014CT908. Petitioner was ordered to pay a fine. g. On or about July 1, 2015, Petitioner entered a plea of guilty to and was convicted of Possession of Drug Paraphernalia, a misdemeanor case, in the Scottsdale City Court, Scottsdale, AZ, under case number M-0751-CR-[number redacted]. Petitioner was ordered to pay a fine and participate in drug counseling. h. On or about January 23, 2017, Petitioner entered a plea of guilty to and was convicted of Driving Under The Influence, a misdemeanor case, in the Superior Court of California, San Diego County, under case number M221510. Petitioner was ordered to pay a fine, install an ignition interlock device, and participate in alcohol counseling On or about June 11, 2019, the Department sent Petitioner, via certified mail, an Intent to Deny Application for Original Real Estate Salesperson’s License, in which the Department informed Petitioner that, based on his application, it had concluded that he did not meet the qualifications for licensure pursuant to A.R.S. §§ 32-2123, 32-2124, and 32-2153. The Department informed Petitioner that its conclusion was based in part, but not exclusively, on his convictions detailed above. The Department informed Petitioner that his conduct had violated A.R.S. §§ 32-2153(B)(7) and (9). Therefore, the Department notified Petitioner that it intended to deny his license application. On or about June 14, 2019, Petitioner requested an appeal. At hearing, Tina Sloat (Ms. Sloat), Petitioner’s mother, and owner of Tina Marie Realty, a brokerage firm, testified that Petitioner reevaluated his life after harsh life changes. She stated that, initially, she did not extend a brokerage opportunity to Petitioner, because of his background. However, after Petitioner experienced life altering events, she stated that she observed Petitioner reevaluate his life and began to prioritize his professional aspirations. Ms. Sloat opined that Petitioner had good client relations and a “hard work ethic.” She stated that after she witnessed his character changes, she was willing to extend Petitioner a brokerage opportunity and supervise Petitioner, if Petitioner was granted a provisional license. At hearing, Petitioner acknowledged that he had made mistakes in his recent past and took full responsibility for his actions. Petitioner did not justify his actions but stated that the turning point in his life was his grandmother’s passing. Petitioner asserted that he has learned from his grandmother’s death and the healing process and experienced “personal growth and perseverance” as a result. He stated that he resolved old issues and turned his life around by going to school and receiving the requisite degree to obtain a real estate license. CONCLUSIONS OF LAW The Department bears the responsibility to protect the public through its enforcement of licensing statutes.[1] This matter lies within its jurisdiction. Petitioner bears the burden of proof and must establish that he meets statutory qualifications for a real estate salesperson’s license by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] 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.”[4] 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: . . . . 7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character. . . . . 9. Violated the terms of any criminal or administrative order, decree or sentence. There was evidence Petitioner was convicted in eight separate cases over a period of nine years. His most recent conviction was less approximately three years ago. While Petitioner maintained he had made some changes to his lifestyle, insufficient time has passed to determine if those are long- term changes or merely transitory. Petitioner’s crimes demonstrated that he was not a person of honesty, truthfulness, or good character in violation of A.R.S. § 32-2153(B)(7). Twice, Petitioner was convicted of Driving With A Suspended/Revoked/Cancelled License establishing that he violated the terms of a criminal or administrative order, decree, or sentence in violation of A.R.S. § 32-2153(B)(9). The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. It would not fulfill that statutory mandate by licensing Petitioner as a real estate salesperson at this time. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Department affirm its decision to deny Petitioner’s application for a real estate salesperson’s license at this time and dismiss this appeal. 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, August 30, 2019.

/s/ Antara Nath Rivera Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

----------------------- [1] See Sigmen v. Arizona Dept. of Real Estate, 169 Ariz. 383, 388, 819 P.2d 969, 974 (Ct. App. 1991). [2] 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). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] 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