ALJDEC decisions subject to certification as final

20F-232-REL · Department of Real Estate · 2020-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Application for Real Estate Salesperson License of:

FIORENZA, JAMES, holder of License No. SA688810000 (Candidate),

Petitioner.

No. 20F-232-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: April 16, 2020

APPEARANCES: James Fiorenza on his own behalf; Lynette Evans, Esq. for the Department of Real Estate

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On March 3, 2020, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing setting the above-captioned matter for hearing on April 16, 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 affirm the Department’s intent to deny Petitioner James Fiorenza’s application for a real estate salesperson’s license.

Through the Notice of Hearing the Department alleged that Mr. Fiorenza violated Ariz. Rev. Stat. sections 32-2153(B)(2), (B)(7) and (B)(10).

Mr. Fiorenza appeared and testified on his own behalf, and he presented the testimony of Oran Wingler. The Department presented the testimony of senior investigator Bret Biesenthal.

On or about January 16, 2020, the Department received Mr. Fiorenza’s application for licensure. In his application, Mr. Fiorenza disclosed misdemeanor convictions.

On July 12, 2011, in Maricopa County Superior Court case CR2011-005717, Mr. Fiorenza pleaded guilty to, and was convicted of, Solicitation to Commit Burglary in the Third Degree, a class 1 misdemeanor. Mr. Fiorenza was sentenced to one year of probation.

Through an Order dated August 1, 2012, Mr. Fiorenza was discharged from probation in case CR2011-005717. Through that Order, the Court noted that Mr. Fiorenza had failed to comply with the terms of his probation that required Mr. Fiorenza not possess illegal drugs and to maintain a crime-free lifestyle. The Order shows that Mr. Fiorenza was arrested for criminal damage and disorderly conduct, but the charges were dismissed, and that he had failed to submit to drug tests and tampered with drug tests.

Through an Order dated April 14, 2014, the Court set aside Mr. Fiorenza’s judgment of guilt in case CR2011-005717.

On December 17, 2015, in the Fourth Judicial District of Idaho case CR2015-0002887, Mr. Fiorenza pleaded guilty to, and was convicted of, Drug Paraphernalia Use or Possess with Intent to Use, a misdemeanor. Mr. Fiorenza was sentenced to pay a fine and court costs.

On August 23, 2017, in Maricopa County Superior Court case CR2016-0101618, Mr. Fiorenza pleaded guilty to, and was convicted of, Possession of Drug Paraphernalia, a class 6 undesignated felony. Mr. Fiorenza was placed on eighteen months of probation.

Through an Order dated June 1, 2018, Mr. Fiorenza was discharged from probation in case CR2016-0101618 and the offense was designated a misdemeanor.

Through an Order dated October 7, 2019, the Court set aside Mr. Fiorenza’s judgment of guilt in case CR2016-0101618.

On July 23, 2018, in Phoenix Municipal Court, Mr. Fiorenza pleaded guilty to, and was convicted of, Fail to Remain at Scene - Damaged Vehicle, a misdemeanor.

On May 5, 2015, Mr. Fiorenza was charged with Possession of Controlled Substance in District Court Arapaho County Colorado case 15CR1148, and a warrant for his arrest was issued.

On October 1, 2018, in District Court Arapaho County Colorado case 15CR1148, Mr. Fiorenza pleaded guilty to, and was convicted of, Abusing Toxic Vapors, a misdemeanor. Mr. Fiorenza was ordered to pay fines and costs.

The Department considered the number and nature Mr. Fiorenza’s infractions and through a letter dated January 22, 2020, it informed Mr. Fiorenza of its intent to deny his application.

Mr. Fiorenza requested a hearing, which led to this matter be scheduled.

Mr. Fiorenza testified to the effect that he has changed, with that change being precipitated by his mother’s death in 2018. Mr. Fiorenza’s disclosure to the Department shows that his conviction for solicitation to commit burglary resulted from a Halloween prank, but he presented no evidence to corroborate this statement.

Regarding the Court’s finding that Mr. Fiorenza had not complied with the terms of his probation in case CR2011-005717, Mr. Fiorenza testified to the effect that there was no evidence in that matter showing that he had tampered with drug tests and he successfully completed the probationary program. He also testified that the charge of disorderly conduct was dismissed because he was the victim in the incident.

Mr. Wingler is a former broker and salesperson who has held licenses in four states. Mr. Wingler has known Mr. Fiorenza for four years and considers him to be a friend. During the time he has known Mr. Fiorenza, Mr. Wingler has seen him change and grow spiritually.

Mr. Wingler holds Mr. Fiorenza in the highest esteem and considers him to be straightforward and honest. As a broker, Mr. Wingler would have been willing to hire Mr. Fiorenza.

CONCLUSIONS OF LAW

Mr. Fiorenza bears the burden of persuasion to show that he should be granted a license. Ariz. Rev. Stat. § 41-1092.07(G)(1).

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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7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character.

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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.

The fact that a criminal conviction has been set aside does not render that conviction a nullity and the Department may consider Mr. Fiorenza’s convictions in its licensing determination. See Parsons v. Ariz. Dep’t of Health Servs., 242 Ariz. 320, 395 P.3d 709 (App. 2017).

Because Mr. Fiorenza has convicted of solicitation to commit burglary, the Department had authority to deny his application for licensure. Ariz. Rev. Stat. §§ 32-2153(B)(2) and (B)(10).

Mr. Fiorenza has four other criminal convictions and the Maricopa County Superior Court found that he did not comply with the terms of his probation. Consequently, Mr. Fiorenza has not shown that he is a person of good character and the Department has authority to deny his application based on Ariz. Rev. Stat. section 32-22153(B)(7).

Although Mr. Fiorenza and Mr. Wingler testified that Mr. Fiorenza has changed, their testimony was limited to brief, general statements without sufficient details to prove that a change has occurred. The evidence also shows that Mr. Fiorenza was only released from probation on June 1, 2018, which is a relatively short time ago.

Consequently, Mr. Fiorenza’s appeal should be denied and the Department’s denial of his application should be affirmed.

ORDER

IT IS ORDERED that James Fiorenza’s appeal is denied and the Department of Real Estate’s decision to deny his application is affirmed.

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.

-54864001

001

-137160-45720000Done this day, May 5, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate-54864001

001

-137160-45720000