ALJDEC decisions subject to certification as final

20F-261-REL · Department of Real Estate · 2020-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson's License of:

Prieto, Ramon, holder of License No. SA674367000,

Respondent.

No. 20F-261-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 20, 2020

APPEARANCES: Respondent Ramon Prieto did not appear. Assistant Attorney General Holly Wan appeared on behalf of the Arizona Department of Real Estate.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

Respondent Ramon Prieto holds license number SA674367000 issued by

the Arizona Department of Real Estate (Department). The license is active and will expire on September 30, 2021.

On September 3, 2020, the Department issued a Notice of Hearing and Complaint setting the above-captioned matter for hearing at 1:00 p.m. on October 20, 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 impose against Mr. Prieto a civil penalty of up to $1000 per violation, as provided for in Ariz. Rev. Stat. section 32-2160.01.

The Department presented the testimony of its Senior Investigator, Bret Biesenthal, and submitted exhibits 1 through 6.

On December 11, 2017, in Tolleson Municipal Court, Mr. Prieto pleaded guilty to and was convicted of driving under the influence, DUI LIQUOR/DRUGS/

VAPORS, a Class 1 Misdemeanor (conviction). The court suspended imposition of sentence of 15 days in jail (10 days suspended/postponed).

Mr. Prieto failed to disclose the conviction to the Department as required.

On January 28, 2020, the Department received a late renewal application

from Mr. Prieto, after Mr. Prieto’s license had expired. Mr. Prieto disclosed the conviction to the Department in the January 28, 2929 renewal application.

CONCLUSIONS OF LAW

The Department bears the burden of persuasion to show that Mr. Prieto violated the statutes and rules as alleged. Ariz. Rev. Stat. § 41-1092.07(G)(2).

Mr. Prieto bears the burden to show that his motion to dismiss should be granted. Ariz. Admin. Code § R2-19-119.

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).

Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona; see also State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes.").

“Substantial evidence is evidence which would permit a reasonable person to” conclude that the proposed finding should be substantiated. See Sierra Club – Grand Canyon Chapter v. Ariz. Corp. Comm’n, 237 Ariz. 568, ¶ 22, 354 P.3d 1127 (2015 App.)(citing In re Estate of Pouser, 193 Ariz. 574, 579, ¶ 13, 975 P.2d 704 (1999).

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

A. 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, within five years immediately preceding, in the performance of or attempt to perform any acts authorized by the license or by this chapter, has:

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3. Disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner.

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14. Failed to pay to the commissioner the renewal fee as specified in this chapter promptly and before the time specified.

A licensee who violates the applicable statutes or rules is subject to a civil penalty of up to $1000 for each violation. Ariz. Rev. Stat § 32-2160.01.

The Department established by a preponderance of the evidence that

Mr. Prieto failed to notify the Department in writing within 10 days of his criminal conviction, which is a violation of A.A.C. R4-28-303(D)(1).

10. The Department established by a preponderance of the evidence that

Mr. Prieto failed to disclose his misdemeanor conviction to the Department, which is a violation of A.A.C. R4-28-301(A)(1)(a).

11. The Department established by a preponderance of the evidence that

Mr. Prieto violated Ariz. Rev. Stat § 32-2153(A)(3) and (A)(14).

12. Considering the facts and circumstances of this matter, a civil penalty of $2,000 is appropriate.

ORDER

IT IS ORDERED that within fifteen days of the final Order in this matter, Ramon Prieto must pay to the Department of Real Estate a civil penalty of $2,000.

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, November 9, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate