ALJDEC decisions subject to certification as final

20F-219-REL · Department of Real Estate · 2021-01-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson License of:

JESUS AGUILAR, holder of License No. SA560511000,

Respondent

No. 20F-219-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: September 29, 2020, with further hearing on January 7, 2021

APPEARANCES: Respondent Jesus Aguilar appeared on his own behalf. Assistant Attorney General Holly Wan represented the Arizona Department of Real Estate. Senior Investigator Bret Biesenthal was present.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

The hearing of this matter convened on September 29, 2020. On the date and time scheduled for hearing, Jesus Aguilar (“Respondent”) appeared on his own behalf. Assistant Attorney General Holly Wan represented the Arizona Department of Real Estate (“Department”). Senior Investigator Bret Biesenthal was present.

As a preliminary matter, the Department withdrew its allegation that Respondent violated A.R.S. 32-2153(B)(11), and advised the Tribunal that the Department requested that the original civil penalty amount be reduced from $2,000.00 to $1,000.00.

Subsequent to the Department’s opening statement, Respondent indicated that he did not disagree with the Department’s allegations and agreed to pay the requested $1,000.00 civil penalty. The hearing was adjourned and set for a Status Date on October 30, 2020.

On October 29, 2020, the Department filed a Status Report stating that Respondent had failed to pay the civil penalty and requested that the matter be set for further hearing.

On January 7, 2021, this matter convened for further hearing. Ms. Wan represented the Department. Respondent appeared on his own behalf. Mr. Biesenthal was present.

At the further hearing on January 7, 2021, Respondent stipulated to the facts contained in the Department’s Notice of Hearing and Complaint.

The stipulated facts are as follows:

On March 28, 2005, the Department issued real estate salesperson license number SA560511000 to Respondent. Respondent’s license expired on March 31, 2019, and was renewed on February 5, 2020. The license is scheduled to expire on March 31, 2021.

On May 15, 2019, after Respondent’s license had expired, Respondent submitted a letter to the Department disclosing that on April 27, 2017, he was convicted of Driving Under the Influence (“DUI”).

On June 5, 2019, the Department sent to Respondent, by certified mail, a letter requesting that within 30 days Respondent submit a new, signed and dated statement regarding the DUI conviction as well as other required documents.

Respondent did not respond to the Department’s request.

In August 2019, the Department requested and received court documents related to Respondent’s DUI conviction. The documents show that on April 27, 2017, Respondent pleaded guilty to and was convicted of DUI, a misdemeanor, in the Pima County Consolidated Justice Court in case number CR17-702537-DU. The court ordered Respondent to spend four days in jail and serve a 12 month term of unsupervised probation.

On January 3, 2020, Respondent submitted a late license renewal application to the Department. With the application, Respondent disclosed his 2017 misdemeanor conviction and submitted a “Letter of explanation for DUI.”

The Department argued that based on the stipulated facts, Respondent’s violations of the charged statutory provisions have been established and that the requested $1,000.00 civil penalty is appropriate.

Respondent agreed with the requested civil penalty amount of $1,000.00 and requested an additional thirty (30) days in which to pay it.

CONCLUSIONS OF LAW

The Department is the duly constituted authority for licensing and regulating real estate salespersons and brokers in Arizona.

The Department bears the burden of proof to establish cause to discipline Respondent’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. § 32-2153, the Commissioner of the Department has jurisdiction to deny, suspend, or revoke a broker’s or salesperson’s license for violations of rules and regulations.

Pursuant to A.R.S. § 32-2160.01, the Commissioner of the Department has jurisdiction to assess a civil penalty of up to $1,000.00 per violation.

A.R.S. § 32-2153 provides the grounds for denial, suspension, or revocation of a license 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.

. . . .

A.A.C. R4-28-301(F) provides in relevant part as follows:

Each salesperson, broker, school owner, director, administrator, and instructor shall, within 10 days of each occurrence, notify the Commissioner in writing of any change in information provided under subsection (A)(1)(a) through (d) and provide documentation listed in subsection (A)(2).

A.A.C. R4-28-301(A)(1)(a) requires license applicants and license renewal applicants to disclose on their applications any “[c]onviction for a misdemeanor or felony, or deferral of a judgment or sentencing for a misdemeanor or felony.”

A.A.C. R4-28-303(D) requires:

A salesperson or broker shall notify the Department in writing within 10 days of any change in the individual’s personal information or qualifications. The salesperson or broker shall include in the notice the individual’s name, signature, license number, and:

If disclosing information required under R4-28-301, such as a criminal conviction, adverse judgment, denial or restriction of or disciplinary action against a professional or occupational license, or recovery fund payment on the person’s behalf, a written statement providing detailed information and, upon request by the Department, the supporting documentation identified in R4-28-301(A)(2).

A.A.C. R4-28-301(A)(2) requires that an if an applicant discloses a conviction for a misdemeanor or felony, or deferral of a judgment or sentencing for a misdemeanor or felony, the applicant shall provide the following:

A signed written statement describing in detail the circumstances surrounding the matter disclosed.

A certified copy of any police report and court record that pertains to each crime for which the applicant has been convicted or for which sentencing or judgment has been deferred. If the applicant is unable to provide documents for each crime, the applicant shall provide written documentation from the court or agency having jurisdiction, stating the reason the records are unavailable.

Three written and dated references from individuals, 18 years or older and not related by blood or marriage to the applicant, who have known the applicant for at least one year before the date of the Department’s receipt of the application. Each reference shall be dated no more than one year from the date the application is submitted to the Department and include the writer’s name, address, and telephone number.

A 10-year work history, stating each employer’s name and address, supervisor’s name and telephone number, position held, and dates of employment, specifying any periods of unemployment.

A certified copy of all documents pertaining to every reprimand, censure or sanction, order assessing a civil penalty, or denying, suspending, restricting, or revoking any professional or occupational license currently held or held by the applicant within the last 10 years.

A certified copy of any civil judgment awarded by a court of competent jurisdiction against the applicant that included findings of fraud or dishonest dealings by the applicant.

A certified copy of any document evidencing a payment of a judgment on behalf of the applicant by any recovery fund administered by any state or professional or occupational licensing board, or repayment by the applicant as a judgment debtor to any recovery fund administered by any state or professional or occupational licensing board. If an Arizona real estate or subdivision recovery fund matter, a written disclosure of the file number, approximate date, and approximate amount of payment and current repayment status satisfies this requirement.

A certified copy of any temporary or permanent order of injunction entered against the applicant.

Any other documentation that the applicant believes supports the applicant’s qualifications for licensure.

The Department established that Respondent failed to disclose his April 27, 2017 DUI conviction within 10 days, in violation of A.A.C. R4-28-301(F) and A.A.C. R4-28-303(D). Therefore, the Department established cause to discipline Respondent’s salesperson license under A.R.S. § 32-2153(A)(3).

RECOMMENDED ORDER

In view of the foregoing,

IT IS ORDERED that, within 30 days of the effective date of the final order in this matter, Respondent Jesus Aguilar shall pay a civil penalty to the Department in the amount of $1,000.00 (One Thousand Dollars).

IT IS FURTHER ORDERED that, if Respondent fails to timely pay the civil penalty, the Department shall suspend Respondent’s Real Estate Salesperson License number SA560511000 until he pays the full amount of the civil penalty.

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 (5) days from the date of the certification.

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-137160-45720000Done this day, January 13, 2021.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

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-137160-45720000