ALJDEC decisions subject to certification as final

20F-266-REL · Department of Real Estate · 2020-07-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

Jerell Monique Irving, holder of License No. SA663813000,

Petitioner.

No. 20F-266-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 30, 2020

APPEARANCES: Petitioner Jerell Monique Irving appeared on behalf of herself. 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

On March 26, 2020, the Arizona Department of Real Estate (Department) issued a Notice of Hearing and Complaint setting the above-captioned matter for hearing at 1:00 p.m. on May 12, 2020, at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice of Hearing provided that the hearing was being held to determine whether grounds exist to revoke or suspend Petitioner Jerell Monique Irving’s License No. SA663813000.

The Department summarily suspended Ms. Irving’s license on March 5, 2020, and her license was due to expire on May 31, 2020.

The Department presented the testimony of its Senior Investigator, Bret Biesenthal, and submitted exhibits 1 through 7. Ms. Irving provided no testimony or evidence.

On January 29, 2020, in the Superior Court of Arizona, Ms. Irving pleaded guilty to Aggravated Driving or Actual Physical Control While Under the Influence of Intoxicating Liquor or Drugs, a Class 4 Felony. Ms. Irving had been driving on a suspended license while under the influence of intoxicating liquor. See Exhibit 3.

On February 25, 2020, the court accepted Ms. Irving’s guilty plea and sentenced Ms. Irving to four months of incarceration and 30 months of supervised probation upon release.

Through the Notice of Hearing, the Department alleged that Ms. Irving violated Ariz. Rev. Stat. sections 32-2153(B)(2).

The Department requested that the summary suspension of Ms. Irving’s license be upheld and that her license be revoked.

CONCLUSIONS OF LAW

The Department bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(2).

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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Because Ms. Irving was convicted of a felony, the Department had authority to summarily suspend her license. See Ariz. Rev. Stat. §§ 32-2153(B)(2) and 32-2157(C).

The preponderance of the evidence shows that Ms. Irving has been convicted of Aggravated Driving or Actual Physical Control While Under the Influence of Intoxicating Liquor or Drugs, a Class 4 Felony, which is a violation Ariz. Rev. Stat. § 32-2153(B)(2).

Based on the proven violation, the Department has authority to revoke

Ms. Irving’s license. Ariz. Rev. Stat. §§ 32-2153(A) and (B).

Considering the facts and circumstances of this matter, Ms. Irving’s license should be revoked. See Ariz. Rev. Stat. §§ 32-2124(M) and 32-2130(I).

ORDER

IT IS ORDERED that Jerell Monique Irving’s License No. SA663813000 is revoked.

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, July 20, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estat