ALJDEC decisions subject to certification as final

20F-254-REL · Department of Real Estate · 2020-08-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

RIVERA JOEY, holder of License No. SA661198000 (Candidate),

Petitioner.

No. 20F-254-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 16, 2020

APPEARANCES: Michael Denious, Esq. appeared on behalf of Petitioner Joey Rivera. 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 March 16, 2020, the Arizona Department of Real Estate (Department) issued a Notice of Hearing setting the above-captioned matter for hearing on April 28, 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 decision to deny Petitioner Joey Rivera’s application for a real estate salesperson’s license.

Through the Notice of Hearing, the Department alleges that Petitioner has violated Arizona Revised Stautes (A.R.S.) §§ 32-2153(B)(2), (B)(7), (B)(9) and (B)(10).

The Department presented the testimony of its Senior Investigator Lara Hoover, and submitted exhibits 1 through 17. Petitioner appeared and testified on his own behalf, presented the testimony of Commissioner Utiki Spurling Laing, Yvonne Pastor, and Victoria Blass. Petitioner submitted exhibits 1 through 23.

On or about June 18, 1998, in Case No. CR98-001536, Petitioner pleaded guilty to, and was convicted of Solicitation to Sell Narcotic Drugs, a class 4 felony, in the Superior Court of Arizona, Maricopa County. The court suspended imposition of sentence and placed Petitioner on four years of supervised probation.

On or about June 18, 1998, in Case No. CR98-006083, Petitioner pleaded guilty to, and was convicted of Theft, a class 4 felony, in the Superior Court of Arizona, Maricopa County. The Court suspended imposition of sentence and placed Petitioner on four years of supervised probation.

In June of 2000, in Case No. CR99-007836, Petitioner pleaded guilty to Trafficking in Stolen Property, a class 3 felony, in the Superior Commissioner of Arizona, Maricopa County. On August 4, 2000, the court sentenced Petitioner to five years of probation. During his probation period, two petitions to revoke Petitioner’ probation were filed due to probation violations, both resulting in reinstatement to probation. The court discharged Petitioner from probation on September 24, 2005.

On or about May 24, 2010, in Case No. 10CR0555, Petitioner pleaded guilty to and was convicted of three counts of Theft by Taking, a misdemeanor, in the Superior Court of Cherokee County, Georgia. The court sentenced Petitioner to 36 months of probation.

On or about July 24, 2013, in Case No. CR2013-002302-001, Petitioner pleaded guilty to and was convicted Of Possession of Drug Paraphernalia, a class 6 undesignated felony, in the Superior Court of Arizona, Maricopa County. The court suspended imposition of sentence and placed Petitioner on 18 months of unsupervised probation.

On or about September 16, 2015, Petitioner admitted to the court in Case No. CR2013-002302, that he violated a condition of probation by failing to pay monthly probation service fees. The court extended Petitioner’s probation by three months.

On February 15, 2017, following an administrative hearing regarding Petitioner’s appeal of the Department’s Intent to Deny his October 2016 application for a real estate salesperson’s license, the Commissioner issued a final order denying his appeal.

On January 28, 2020, the Department received an application for a for a real estate broker’s license from Petitioner.

In his January 28, 2020 application, Petitioner answered yes to the question asking whether he had ever been convicted of, or pleaded no contest to a felony. Petitioner answered yes to the question asking whether he had ever been convicted of, or pleaded no contest to a misdemeanor.

On February 2, 2020, the Department issued to Petitioner an Intent to Deny his application based on his criminal convictions.

On February 28, 2020, Petitioner filed a timely appeal to the Intent to Deny Application letter.

At the hearing, Petitioner acknowledged his criminal convictions, but asserted that he is a different person and that the Department should not judge him based on his past actions.

Petitioner explained that he was homeless and addicted to heroin from about 1995 to 1998.

Regarding the 2010 conviction for Theft by Taking, Petitioner explained that he worked as Personal Trainer Manager for a gym in Atlanta, GA. Petitioner stated that it was his responsibility to oversee new clients in a workout and sell personal training through the gym. The new client would be assigned to a trainer under Petitioner’s supervision. Petitioner explained that he trained a few of his friends who wanted to pay him directly for training that he provided while he was working for the gym.

Petitioner submitted a letter to the Department regarding the conviction with his February 2020 application. The letter provided, in relevant part, “In 2008 I lived in Atlanta GA. I worked for golds gym in Woodstock GA. I was the personal training director. I made a stupid and greedy mistake by allowing friends of mine who wanted to pay me directly for PT. This was not allowed and I was let go and the gym decided to press charges. They had every right since I was using there [sic] facility to Personal train and it was wrong of me. I was arrested by Woodstock PD and placed on 2 years standard probation. I did complete the probation successfully. I learned a valuable lesson. Always be Honest and do everything by the book. This was an embarrassment to my integrity knowing that I made the decision with a clear conscious.”

Regarding the 2013 conviction for Possession of Drug Paraphernalia, Petitioner explained that the incident that led to the conviction happened shortly after he moved back to Phoenix from Atlanta. Petitioner stated that he made a bad decision and went with his friends to buy drugs. Petitioner explained that his friend had a marijuana pipe in his car that dropped to the floor.

Petitioner explained that he became a personal trainer because he wanted to help people.

Petitioner stated that he would submit to random drug testing if granted a provisional license.

Utiki Laing is a Commissioner in Maricopa County Superior Court. Petitioner offered a character letter from Commissioner Laing in support of his case.

Ms. Laing explained in the letter that she has known Petitioner for two years and that she has known him to be reliable and responsible.

24. At hearing, Ms. Laing explained that she has received personal training from Petitioner. Ms. Laing testified to the effect that she was in the best shape and that Petitioner motivated her to focus. Ms. Laing explained that she is aware of Petitioner’s criminal background but she hesitates to judge people based upon on their past. Ms. Laing explained that Petitioner told her about the different choices that he made. Ms. Laing stated that Petitioner’s failure to comply with probation was due to his inability to pay fees. Otherwise, Ms. Laing expressed that Petitioner successfully completed probation. Ms. Laing has seen Petitioner interact with his girlfriend and with her husband.

Ms. Laing believes that Petitioner should be granted a real estate salesperson’s license.

25. Yvonne Pastor has known Petitioner for 32 years since she was about 15 years old. Ms. Pastor and Petitioner were both in a debutante ball. Ms. Pastor knows Petitioner’s family. Ms. Pastor testified to the effect that her children and Petitioner’s child graduated from Brophy High School. Ms. Pastor heard that Petitioner began experiencing problems after high school. Ms. Pastor testified to the effect that Petitioner is almost 50 years old and she believes that people deserve second chances. Ms. Pastor stated that she trusts Petitioner with her sons. Ms. Pastor stated that she talks to Petitioner once every other week, and a minimum of once a month. Ms. Pastor explained that Petitioner has always treated her with respect and that she would not hesitate to use Petitioner as her realtor. Ms. Pastor explained that Petitioner began spending time with his older cousin who introduced him to substances and Petitioner became addicted.

26. Pastor explained that she is aware of Petitioner’s 2000 conviction for stolen property and that the two of them discussed the matter. Pastor believes that Petitioner suffered from drug addiction through 2010. In 2013, Pastor stated that Petitioner’s son was in high school and that Petitioner had “debts to handle.”

27. Victoria Blass is a designated broker for Remax and supervises several real estate agents. Blass attended law school part-time and obtained her Juris Doctor degree. Blass met Petitioner when she was in high school because they had mutual friends. Blass reconnected with Petitioner several years later. Blass explained that Petitioner was forthcoming about his past even though she had not seen him in several years.

28. Ms. Blass reviewed the Notice of Hearing in the current matter. Ms. Blass is willing to serve as a practice monitor for Petitioner if he were granted a provisional real estate license. Ms. Blass has served as a practice monitor for three other individuals. However, Ms. Blass could not recall on cross examination whether the other persons had felony and/or misdemeanor convictions.

29. Petitioner offered a letter of character from Ms. Bass in support of his case. Ms. Bass described Petitioner to be “honest” and “hard-working.”

30. Petitioner submitted additional letters of character from Joylynn Hamilton, Aaron Rayord, II, Frank Russo, Michael Rivera, Laura Pastor, Tom Gailbraith, and Brenda Ryan in support of his appeal of the denial determination.

31. Joylynn Hamilton is a realtor with Keller Williams Realty. Hamilton wrote, “I have known Joey Rivera for 10 years and can vogue that Joey has been an upstanding citizen with my family and myself.” Hamilton described Petitioner to be an “excellent personal trainer.” Hamilton believes that Petitioner would “thrive” in the real estate industry.

32. Petitioner offered a letter of character from Aaron Rayord, II. Rayford met Petitioner when Petitioner was a Sales Consultant for Crunch Fitness. Rayford highly recommended Petitioner as a real estate salesperson. Rayford described Petitioner as having “strong work ethic” and “positive attitude.”

33. Petitioner offered a letter of character from Frank Russo, a designated broker at RE/MAX Professionals. Russo explained that he would hire Petitioner as a licensed Sales Associate and that Petitioner had disclosed his felony conviction.

34. Petitioner offered a letter of character from Michael Rivera. Mr. Rivera stated that he is a Lieutenant with the Phoenix Police Department. Mr. Rivera met Petitioner at a gym in Phoenix where he received personal training. Mr. Rivera described Petitioner as being a qualified trainer. Mr. Rivera believes that Petitioner would be an excellent realtor. Mr. Rivera wrote, “I take pride in serving the public with professionalism, respect, integrity, dedication, and excellence. Joey has these same qualities...”

35. Petitioner offered a letter of character from City of Phoenix Council Member Laura Pastor. Ms. Pastor explained that she has known Petitioner since high school. Ms. Pastor described Petitioner as a “refined young man” and “dedicated father.”

36. Brenda Ryan is a designated broker with AZ Premier Realty Homes & Land, LLC. Ms. Ryan has agreed to serve as a practice monitor for Petitioner.

37. Tom Gailbraith is a retired lawyer. In his character letter, Gailbraith wrote,

“It was my good fortune to draw Joey Rivera, as my physical trainer. Joey showed himself to be timely, knowledgeable and conscientious in every way. I was impressed by his kindness and verbal facility. Since I am seventy-six years old with a history of asthma, when Covid-19 hit, I had to discontinue my workouts and suspend my gym membership. I intend to return when the virus subsides, so was not concerned about the $800 deposit I has paid in advance for personal training; but I was worried about the financial impact on Joey when the gym closed. I offered to ask the gym’s owner to pay Joey’s share of my deposit to Joey immediately, because I was confident that Joey would perform when I was able to return. Joey, however, turned down my offer. Not too many people would in his circumstances.”

38. The Department’s position is that Petitioner should be denied a real estate salesperson’s license due to the number, nature, and pattern of his criminal convictions. The Department argued that grounds exist to deny Petitioner’s original application for a real estate broker’s license under Ariz. Rev. Stat. section 32-2153(B)(2),(B)(7), (B)(9), and (B)(10).

CONCLUSIONS OF LAW

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

Pursuant to Arizona Revised Statutes (A.R.S.) § 41-1092.07(G)(2) and

A.A.C. R2-19-119(B), Petitioner 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 preponderance of the evidence is “such proof as convinces the trier of

fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). It is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).

4. A.R.S. § 32-2153 provides as follows:

B. 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 if it appears that the holder or applicant 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.

9. Violated the terms of any criminal or administrative order, decree or sentence.

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’s concern in this case is legitimate and well-founded.

A person with a criminal record must be given close scrutiny and careful consideration when he applies for a professional license.

Once good character is shown as absent, it is not automatically regained

by the mere passage of time. The concern of the Department is essential and legitimate in light of the Petitioner’s past misdemeanor and felony convictions, including crimes that involve theft.

Petitioner contended that he currently is a person of good character.

In support of that contention, Petitioner submitted character letters authored by

Ms. Hamilton, Mr. Rayford, II, Mr. Russo, Mr. Rivera, Ms. Ryan, and Laura Pastor.

The above-mentioned letters are given little weight because Ms. Hamilton, Mr. Rayford, II, Mr. Russo, Mr. Rivera, Ms. Ryan, and Laura Pastor were not present to be questioned by the Department’s counsel or by the Administrative Law Judge. Further, due to the content of the letters, the extent of information known by Ms. Hamilton, Mr. Rayford, II, Mr. Russo, Mr. Rivera, Ms. Ryan, and Laura Pastor, and certain relevant details concerning Petitioner could not be discerned nor could such information be explored because the authors did not testify at the hearing.

8. Petitioner testified on his own behalf and presented the testimony of three character witnesses: Commissioner Laing, Yvonne Pastor, and Victoria Blass. The three witnesses also wrote character letters in support of Petitioner.

9. However, the uncontested evidence established that Petitioner was

convicted of Theft, Theft by Taking, and Trafficking in Stolen Property, which is a violation of A.R.S. §§ 32-2153(B)(2) and (B)(10). The evidence also established that Petitioner was convicted of drug felonies, which is a violation A.R.S. § 32-2153(B)(10).

12. Petitioner has the burden of proving by the preponderance of the evidence that he has resolved the issues that led to the commission of the theft crimes and drug related convictions to establish that he has sufficient good character and reputation to satisfy the statutory requirement for licensure as a real estate salesperson.

13. Petitioner has not met the burden of proving by the preponderance of the evidence that he has sufficient good character and reputation to satisfy the statutory requirement for licensure as a real estate salesperson.

14. The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. It would not fulfill that statutory mandate by licensing Petitioner as a real estate salesperson at this time. Consequently, considering the evidence and legal authority presented, this Tribunal concludes that Petitioner’s application for licensure should be denied.

RECOMMENDED ORDER

Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends to the Arizona Department of Real Estate Commissioner to affirm the Department’s February 2, 2020 Intent to Deny Application for a real estate salesperson’s license.

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.

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

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

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