ALJDEC decisions subject to certification as final

20F-077-REL-RHG · Department of Real Estate · 2021-05-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Application for Reinstatement of License of:

DAMON H. SUTTON, License No. SA573797000,

Petitioner

No. 20F-077-REL-RHG

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 6, 2021

APPEARANCES: Petitioner Damon H. Sutton appeared on his own behalf. The Arizona Department of Real Estate was represented by Assistant Attorney General Holly Wan.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

On or about December 4, 2020, Petitioner Damon H. Sutton submitted to the Arizona Department of Real Estate (Department) an application for reinstatement of his real estate salesperson’s license number SA573797000. Petitioner was originally licensed in 2006, and his license expired on March 31, 2020.

On or about September 3, 2019, the Department summarily suspended Petitioner’s license due to a July 23, 2019 conviction in Maricopa County Superior Court for Endangerment, a class 6 undesignated felony, and DUI, a class 1 misdemeanor. Petitioner was placed on supervised probation for a period of 18 months.

Petitioner had previously been convicted of DUI Extreme .15 or Above in Tempe Municipal Court on November 22, 2017.

Petitioner appealed the summary suspension of his license, and on or about December 6, 2019, the Commissioner upheld the decision of the Administrative Law Judge and issued a Final Order suspending Petitioner’s license.

On or about October 22, 2020, the Court granted Petitioner early discharge from probation and ordered that the undesignated felony be designated as a misdemeanor.

On or about February 25, 2021, the Department issued to Petitioner a decision that it would offer him a two-year provisional license.

On or about March 11, 2021, the Department received a timely appeal from Petitioner.

At hearing, Petitioner testified that he had not had anything to drink since 2017. Petitioner stated that the 2019 conviction was the result of his statement to the officer that he had a medical marijuana card. Petitioner acknowledged that he had marijuana in his system, but argued that he was not under the influence at the time he was driving. Petitioner requested that he be issued a full license without restrictions.

CONCLUSIONS OF LAW

The Department bears the responsibility to protect the public through its enforcement of licensing statutes. 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.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

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.

Petitioner’s failure to ensure his actions were within the confines of the law indicated a lack of honesty and truthfulness. As such, Petitioner engaged in conduct demonstrating that he was not a not a person of honesty, truthfulness, or good character in violation of A.R.S. § 32-2153(B)(7).

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 granting Petitioner an unrestricted real estate salesperson license at this time. Based on the circumstances, the Administrative Law Judge believes that a two-year provisional license is appropriate.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that Petitioner be issued a two-year provisional real estate salesperson’s license upon the effective date of the Order entered 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.

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-137160-45720000Done this day, May 25, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate-54864001

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-137160-45720000