ALJDEC decisions subject to certification as final
20F-145-REL · Department of Real Estate · 2020-01-28
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Real Estate Salesperson License of:
AGUILAR, TERESITA, holder of license number SA681113000,
Petitioner.
No. 20F-145-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 24, 2020, at 1:00 p.m.
APPEARANCES: The Arizona Department of Real Estate (“the Department”) was represented by Deian Ousounov, Esq., Assistant Attorney General; Teresita Aguilar (“Petitioner”) failed to appear.
ADMINISTRATIVE LAW JUDGE: Diane Mihalsky
_____________________________________________________________________
FINDINGS OF FACT
Procedural Background
The Department is the duly constituted authority for licensing and regulating real estate salespersons and brokers in Arizona.
On or about September 18, 2018, the Department issued Real Estate Salesperson License No. SA681113000 to Petitioner. That license will expire on September 30, 2020.
On October 25, 2019, the Department issued an order summarily suspending Petitioner’s license under A.R.S. § 32-2157(C) because, on or about August 21, 2019, she had entered into a plea agreement and plead guilty to Criminal Impersonation – False ID, a Class 6 felony in Maricopa County Superior Court Case No. CR2019-116350 (“the criminal case”).
On or about November 25, 2019, Petitioner’s attorney on her behalf requested a hearing on the Department’s intended revocation of her license based on the “unique circumstances of the underlying criminal case against [Petitioner].”
The Department referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing.
On or about December 18, 2019, the Department issued a Notice of Hearing and Complaint, setting an evidentiary hearing before OAH on January 24, 2020, charging cause to discipline Petitioner’s salesperson’s license under A.R.S. §§ 32-2153(B)(2), 32-2153(B)(7), and 32-2153(B)(10). The Department mailed the Notice of Hearing and Complaint via first class and registered mail to Petitioner’s attorney.
On January 21, 2020, Petitioner’s attorney filed a Notice of Withdrawal of Appeal and Request for Hearing, requesting that the “final Order of revocation be entered at the earliest possible moment, so the 2-year waiting period can begin.” The Administrative Law Judge (“ALJ”) issued an order vacating the evidentiary hearing.
On January 23, 2020, the Department’s attorney filed a motion for reconsideration, requesting that the evidentiary hearing be reinstated because Respondent had only withdrawn her appeal of the summary suspension, but that the Department still desired to present evidence to support revocation of the license. Petitioner’s attorney filed a motion joining in the Department’s motion because she wanted the Department to move forward on its intended revocation so that the time could start running on the two years before she could reapply for a license.
The ALJ granted the motion for reconsideration and reinstated the January 24, 2020 hearing date.
On January 24, 2020, a hearing was held. The Department submitted seven exhibits and presented the testimony of its Investigator, Linette Lacey.
Petitioner did not request to appear telephonically at the hearing or that the hearing be continued. Petitioner did not appear, personally or through her attorney. Consequently, Petitioner did not present any evidence to defend her real estate salesperson’s license.
Hearing Evidence
On February 11, 2019, Petitioner was charged with Taking the Identity of Another, a Class 4 felony, based on the following facts:
[Petitioner], on or between July 16, 2017 and July 31, 2017, knowingly did take, purchase, manufacture, record, possess or use any personal identifying information or entity identifying information of Rosa Coronado-Salazar, without consent, with the intent to obtain or use the identity for any unlawful purpose or to cause loss to a person or entity, in violation of A.R.S. §§ 13-2008, 13-701, 13-702, and 13-801.
Ms. Lacey testified that Petitioner used another person’s identifying information to cash a check that was made payable to that person. Petitioner’s use of another person’s identifying information to cash checks that had not been made payable to Petitioner was concerning to the Department because real estate salespersons routinely receive checks to hold for the benefit of their clients and have access to others’ personal information.
On August 14, 2019, Petitioner entered into a plea agreement in which she pled guilty to Criminal Impersonation, a Class 6 Undesignated Felony.
The Probation Officer’s presentence report summarized Petitioner’s offense and contained an evaluation, in relevant part as follows:
On July 31, 2017, and on another unknown date, the [Petitioner] cashed checks made out by her employer The Courtyards, to Rosa Laura Coronado-Salazar at a local El Kiosko. [Petitioner] used a copy or a forged copy of Ms. Coronado-Salazar’s Mexican Federal Electoral Card with her photograph on it. Ms. Coronado-Salazar had never worked for the company, did not know [Petitioner], and did not give her permission to use her identification or a copy of it. She also reported she had looked at an apartment and the manager made a copy of her license and passport. Investigation revealed [Petitioner] was responsible for telephoning the company’s payroll into the owner who lived out of state. Staff at El Kiosko identified [Petitioner] as the person who had cashed Ms. Coronado-Salazar’s checks.
. . . .
The present offense represents [Petitioner’s] first felony conviction and her only documented contact with the criminal justice system. [Petitioner’s] actions in the present offense involved a victim, were premeditated, and were for pecuniary gain. . . . Probation supervision will permit the Court to monitor [Petitioner] in the community and will provide her with services, structure and accountability. Based on the nature of the present offense, it is also respectfully recommended that [Petitioner] not be permitted to work in any position which provides access to any identity information, monies, or credit information, and that she notify any employer of the nature of her convictions in writing within ten days of sentencing or hire.
On September 27, 2019, the Court sentenced Petitioner to 18 months’ supervised probation.
Ms. Lacey testified that applicable statute prevents the Department from renewing the license of a person who is serving a criminal sentence for a felony.
CONCLUSIONS OF LAW
The Notice of Hearing that the Department mailed to Petitioner’s attorney was reasonable and it appears that Petitioner’s attorney actually received notice of the hearing.
The Department has jurisdiction over Petitioner and the subject matter in this case.
Under A.R.S. § 32-2157(C), the Department had the power to summarily suspend Petitioner’s license. As noted above, however, Petitioner withdrew her appeal of the Department’s summary suspension.
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.”
A.R.S. § 32-2153 provides as follows:
32-2153. Grounds for denial, suspension or revocation of licenses . . . .
A. The commissioner may suspend or revoke a license . . . issued under this chapter if it appears that the holder . . . , within five years immediately preceding, in the performance of or attempt to perform any acts authorized by the license or by this chapter, has:
. . . .
3. Disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner.
. . . .
B. The commissioner may suspend or revoke a license . . . issued under this chapter when it appears that the holder . . . 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.
. . . .
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.
The Department established that Petitioner was convicted of Criminal Impersonation, a Class 6 Undesignated Felony, based on her use of another person’s identification to cash checks to were made payable to that person. The Department thereby established cause to discipline Petitioner’s salesperson’s license under A.R.S. §§ 32-2153(A)(3), 32-2153(B)(2), 32-2153(B)(7), and 32-2153(B)(10).
RECOMMENDED ORDER
In view of the foregoing,
IT IS ORDERED revoking Petitioner Teresita Aguilar’s Real Estate Salesperson’s License Number SA681113000.
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, January 28, 2020.
/s/ Diane Mihalsky
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate