ALJDEC decisions subject to certification as final

20F-184-REL · Department of Real Estate · 2020-03-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson License of:

ARELLANO, MARIVEL, holder of License No. SA644090000,

Petitioner.

No. 20F-184-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 10, 2020

APPEARANCES: Petitioner Marivel Arellano appeared on behalf of herself. Assistant Attorney General Lynette Evans appeared on behalf of the Arizona Department of Real Estate.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

On February 4, 2020, the Arizona Department of Real Estate (Department) issued a Notice of Hearing and Complaint setting the above-captioned matter for hearing at 1:00 p.m. on March 10, 2020 at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice of Hearing provided that hearing was being held to determine whether grounds exist to revoke or suspend Respondent Marivel Arellano’s License

No. SA644090000.

The Department summarily suspended Ms. Arellano’s license on December 19, 2019, and her license was due to expire on June 30, 2020.

The Department presented the testimony of its Senior Investigator, Bret Biesenthal, and submitted exhibits 1 through 7. Ms. Arellano testified on behalf of herself.

On November 8, 2019, in the Superior Court of Arizona, Ms. Arellano pleaded guilty to and was convicted of Criminal Possession of Forgery Device, a Class 6 Undesignated felony. The court suspended imposition of sentence and placed Arellano on 18 months of supervised probation.

On November 8, 2019, in the Superior Court of Arizona, Ms. Arellano pleaded guilty to and was convicted of Drug Paraphernalia-Possession/Use, a Class 6 Undesignated Felony. The court suspended imposition of sentence and placed Arellano on 18 months of supervised probation.

Through the Notice of Hearing the Department alleged that Ms. Arellano violated Ariz. Rev. Stat. sections 32-2153(B)(2) and (10).

At hearing, Ms. Arellano provided testimony regarding her Criminal Possession of Forgery Device conviction. Ms. Arellano contended that she inadvertently deposited a check into the wrong account.

The Department requested that the summary suspension of Arellano’s license be upheld and that her license be revoked.

CONCLUSIONS OF LAW

The Department bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(2).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Ariz. Rev. Stat. section 32-2153(B) provides in pertinent part:

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:

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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.

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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.

Because Ms. Arellano was convicted of a felony, the Department had authority to summarily suspend her license. See Ariz. Rev. Stat. §§ 32-2153(B) and 32-2157(B).

The preponderance of the evidence shows that Ms. Arellano has been convicted of Criminal Possession of Forgery Device, a Class 6 Undesignated Felony, which is a violation Ariz. Rev. Stat. §§ 32-2153(B)(2) and (10).

The preponderance of the evidence shows that Ms. Arellano has been convicted of Drug Paraphernalia-Possession/Use, a Class 6 Undesignated Felony, which is a violation Ariz. Rev. Stat. § 32-2153(B)(2).

Based on the proven violations, the Department has authority to revoke Ms. Arellano’s license. Ariz. Rev. Stat. §§ 32-2153(A) and (B).

Considering the facts and circumstances of this matter, Ms. Arellano’s license should be revoked. See Ariz. Rev. Stat. §§ 32-2124(M) and 32-2130(I).

ORDER

IT IS ORDERED that Marivel Arellano License No. SA644090000 is revoked.

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 is five days after the date of that certification.

Done this day, March 30, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate