ALJDEC decisions subject to certification as final
20F-077-REL · Department of Real Estate · 2019-12-02
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Real Estate Salesperson License of:
SUTTON, DAMON, holder of license number SA573797000,
Petitioner
No. 20F-077-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 18, 2019
APPEARANCES: Damon Sutton (Petitioner) appeared on his own behalf. The Arizona Department of Real Estate (Department) was represented by Deian Ousounov, Assistant Attorney General.
ADMINISTRATIVE LAW JUDGE: Antara Nath Rivera
_____________________________________________________________________
FINDINGS OF FACT
The Department is the duly constituted authority for licensing and regulating real estate salespersons and brokers in Arizona.
On or about March 27, 2006, the Department issued Real Estate Salesperson License No. SA573797000 to Petitioner. That license will expire on March 31, 2020.
On or about September 3, 2019, the Department summarily suspended Petitioner’s salesperson’s license under A.R.S. §§ 32-2153 and 32-2157(C).
On or about September 25, 2019, Petitioner timely appealed the summary suspension.
On or about October 8, 2019, the Department issued a Notice of Hearing and Complaint, alleging certain misconduct by Petitioner and charging cause to discipline his salesperson’s license under A.R.S. §32-2157(C), 32-2153(A)(3), 32-2153(B)(2), and A.A.C. R4-28-303(D).
The Department’s Notice of Hearing and Complaint also set an evidentiary hearing before the Office of Administrative Hearings (OAH), an independent state agency, on November 18, 2019, at 1:00 p.m.
On November 18, 2019, a hearing was held. The Department submitted six exhibits and presented the testimony of its Senior Investigator, Linette Lacy.
Prior to the hearing, the Department withdrew its allegation to revoke Petitioner’s license, pursuant to A.R.S. § 32-2153(A)(3) and 32-2153(B)(2).
HEARING EVIDENCE
Ms. Lacy testified that according to a records search conducted on October 4, 2019, Petitioner’s license status was suspended.
On or about February 25, 2019, a direct complaint was issued against Petitioner in Maricopa County Superior Court Case No. CR2019-030098-001 charging Petitioner with two counts of aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs, a class 4 felony.
On or about June 17, 2019, Petitioner pled guilty to endangerment, a reduced charge and a class 6 undesignated felony. Petitioner also pled guilty to “DUI-Liquor/Drugs/Vapors/Combo, a class 1 misdemeanor.
On or about July 22, 2019, Petitioner was sentenced to 18 months supervised probation, concurrent, on each count.
Petitioner did not notify the Department, in writing, within 10 days of his criminal conviction. The first time the Department received any communication from Petitioner was on September 23, 2019.
At the time of this hearing, Petitioner was on supervised probation. Pursuant to the Department’s statutes, it shall not issue or renew the license of a person that is serving time for a felony conviction.
At hearing, Petitioner testified that he wanted his license back so that he could practice real estate and work again. Petitioner acknowledged that he was on probation, was in compliance with his probation terms, and paid his fines. Petitioner was trying to lift the probation before his license expired so that he could reapply for renewal.
CONCLUSIONS OF LAW
Pursuant to A.R.S. § 32-2153(E), the lapsing or suspension of a license by operation of law or by order or decision of the Commissioner or a court of law or the voluntary surrender of a license by a licensee shall not deprive the Commissioner of the jurisdiction to proceed with any investigation of or action or disciplinary proceeding against the licensee. The Department has jurisdiction over Petitioner and the subject matter in this case.
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. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Pursuant to A.R.S. Title 32, Chapter 20, the Department has the authority and duty to regulate all persons engaged in the business of, or acting in the capacity of, a real estate broker or salesperson, and to enforce all statutes, rules, and regulations relating to real estate. Because this matter is disciplinary in nature, the Department bears the burden of proof. The standard of proof on all issues is by a preponderance of the evidence. See A.A.C. R2-19-119
A.A.C. R4-28-303(D) provides in relevant part as follows, “[a] salesperson or broker shall notify the Department in writing within 10 days of any change in the individual’s personal information or qualifications. . . .”
A.R.S. § 32-2130(I) provides in relevant part as follows, “[t]he department shall not renew the license of a person who has been convicted of a felony offense and who is currently incarcerated for the conviction, paroled or under community supervision and under the supervision of a parole or community supervision officer or who is on probation as a result of the conviction. This subsection does not limit the commissioner's authority and discretion to deny the renewal for any other reason pursuant to this chapter.”
The Department established that Petitioner was convicted of endangerment, a felony, and driving under the influence of alcohol, a misdemeanor. There was evidence that Petitioner failed to report the conviction to the Department within 10 days of his conviction as required by A.A.C. R4-28-303(D).
Furthermore, the Department established that Petitioner was on supervised probation at the time of the hearing. The Department thereby established that it cannot renew Petitioner’s salesperson’s license because he was on probation pursuant to A.R.S. § 32-2157(C).
RECOMMENDED ORDER
In view of the foregoing,
IT IS ORDERED affirming the summary suspension of Petitioner Damon Sutton’s Real Estate Salesperson’s License Number SA573797000.
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, November 29, 2019.
/s/ Antara Nath Rivera
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate