ALJDEC decisions subject to certification as final

20F-225-REL · Department of Real Estate · 2020-04-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson License of:

MCCLAIN, JOSEPH, holder of License No. SA658136000,

Petitioner.

No. 20F-225-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 25, 2020

APPEARANCES: Petitioner Joseph McClain appeared on his own behalf. The Arizona Department of Real Estate was represented by Assistant Attorney General Lynette Evans.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

On or about March 31, 2020, the Arizona Department of Real Estate (Department) issued Salesperson License No. SA658136000 to Joseph McClain (Petitioner). On or about January 28, 2020, the Department summarily suspended Respondent’s license, which then expired on March 31, 2020.

On or about November 13, 2019, Petitioner pled guilty to and was convicted of Endangerment, a Class 6 Undesignated Felony, in the Superior Court of Arizona, Maricopa County in case number CR2018-156362-001. The court suspended imposition of sentence and Petitioner was placed on supervised probation for a period of 18 months.

Petitioner did not disclose the felony conviction to the Department within ten days as required.

On or about November 25, 2019, the Department sent a letter to Petitioner notifying him that the Department had initiated an investigation based on the information the Department received indicating that Petitioner had been was charged with a Class 6 Undesignated Felony and had failed to disclose it to the Department within 10 days as required. Petitioner was to submit a written and signed narrative statement concerning the matter by December 5, 2019.

Petitioner did not respond to the November 25, 2019 letter.

On or about December 5, 2019, the Department sent a second letter to Petitioner requesting that he submit a written and signed narrative statement concerning the matter by December 10, 2019.

Petitioner submitted a written narrative dated December 10, 2019, to the Department.

On or about January 10, 2020, the Department sent a letter to Petitioner at his address of record via the United Stated Postal Service. The letter was returned to the Department on January 21, 2020, with a notation that the forwarding time had expired.

The Department issued an Order of Summary Suspension and Notice of Opportunity for Hearing (Order) on January 28, 2020. Respondent appealed the Order.

On or about January 30, 2020, Petitioner timely appealed the summary suspension of his license.

The Department argued that Respondent’s conduct constituted violations of A.R.S. § 32-2153(A)(3); A.R.S. § 32-2153(B)(2); and A.A.C. R4-28-303(D)(1) and (3) and warranted the revocation of his license.

At the hearing, Respondent did not dispute any of the allegations against him. Respondent indicated he had not been aware of the requirement to disclose convictions. Respondent stated that was seeking leniency.

CONCLUSIONS OF LAW

The Commissioner has jurisdiction over Respondent and the subject matter in this case.

Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Department has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119(A).

A.R.S. § 32-2157(C) provides, in pertinent part, as follows:

The department may issue a summary suspension when the department receives notice that a person licensed pursuant to this chapter has been convicted of a felony offense and is currently incarcerated for the conviction, paroled or under the supervision of a parole or community supervision officer or is on probation as a result of the conviction. This subsection does not limit the commissioner's authority to seek revocation of a license or other disciplinary action pursuant to this chapter.

The evidence of record established that Respondent was convicted in a court of competent jurisdiction of Endangerment, a Class 6 Undesignated Felony, within the meaning of A.R.S. § 32-2153(B)(2). At the time of the summary suspension, Respondent was on probation for that conviction. Therefore, the imposition of a summary suspension was warranted.

The evidence of record also established that Respondent failed to report the criminal conviction and his change of address to the Department within 10 days in violation of A.A.C. R4-28-303(D)(1) and (3).

The Department established it had grounds to revoke Respondent’s license pursuant to A.R.S. § 32-2153(A)(3); A.R.S. § 32-2153(B)(2); and A.A.C. R4-28-303(D)(1) and (3).

RECOMMENDED ORDER

IT IS ORDERED upholding the summary suspension issued by the Department.

IT IS FURTHER ORDERED revoking Joseph McClain’s License No. SA658136000.

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.

-54864001

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-137160-45720000Done this day, April 1, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate-54864001

001

-137160-45720000