ALJDEC decisions subject to certification as final

20F-271-REL · Department of Real Estate · 2020-07-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

RIOS, JIMMY, holder of License No. SA627399000 (Candidate),

Petitioner.

No. 20F-271-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 26, 2020

APPEARANCES: Jimmy Rios represented himself. Assistant Attorney General Lynette Evans represented the Department of Real Estate.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Commissioner of the Arizona Department of Real Estate.

FINDINGS OF FACT

Petitioner previously held a provisional real estate salesperson license. The Department had issued that licensure in July 2008, with an expiration date of July 31, 2014; however, the license terminated on July 31, 2015.

In February 2020, Petitioner submitted an application (Application) for a real estate sales person’s license to the Arizona Department of Real Estate (“Department”).

On February 25, 2020, the Department issued Petitioner a letter informing him of its intent to deny the Application on the basis of A.R.S. §§ 32-2153(B)(2), (B)(7) and (B)(10).

When Petitioner appealed, the matter was set for hearing with the Arizona Office of Administrative Hearings, an independent state agency.

The Notice of Hearing indicated the Department’s position that grounds existed to deny Petitioner’s Application for a real estate salesperson’s license based on the violations of A.R.S. §§ 32-2153(B)(2), (B)(7), and (B)(10).

At hearing, the Department presented the basis for its decision to deny Petitioner’s Application. The reasons include various offenses from 2001, 2007, 2013 and 2014.

With his Application, Petitioner disclosed that, in 2001, two times within a month, Petitioner was pulled over in Gilbert, Arizona for driving under the influence. These were his first offenses and the charges were handled as one offense, for which he was given a sentence of 30 days in jail (pardoned for 29 days), fines and fees, and a requirement to attend AA classes.

In May 2007, Petitioner pleaded guilty to and was convicted of Driving While Under Extreme Influence, a misdemeanor, in Mesa Municipal Court, Mesa, Arizona, in Docket No. [number redacted].

In April 2013, Petitioner pleaded guilty to and was convicted of Disorderly Conduct, a misdemeanor, in Chandler Municipal Court, Chandler, Arizona, in Case No. 13-C-3839721, and Threatening and Intimidating, a misdemeanor, in Chandler Municipal Court, in Case No. 13-C-3839723. In those cases, the Court suspended sentences and placed Petitioner on one year of monitored probation.

In February 2014, Petitioner pleaded guilty to and was convicted of Aggravated Driving or Actual Physical Control While Under the Influence of Intoxicating Liquor or Drugs, a Class 4 felony, in Maricopa County Superior Court, in Case No. CR2013-112567-001. In this case, the Court sentenced Petitioner to 4 months in jail and two years of probation upon release. While he was discharged from probation on May 4, 2016, the fines and fees remained partially unpaid at that time. In 2019, the Court’s collection process requested that new Orders be prepared for the remaining interest amount.

In its Notice of Hearing, the Department alleged that Petitioner had violated state law regarding those past actions, in conduct resulting in a conviction in a court of competent jurisdiction of a felony violating A.R.S. § 32-2153(B)(2), in not being a person of honesty or truthfulness or good character violating A.R.S. § 32-2153(B)(7), and in action involving violence against another person violating A.R.S. § 32-2153(B)(10).

Generally, a court having determined a factual basis for a plea, a voluntary guilty plea to a charged crime establishes that the person committed the acts that constituted the charged crime.

At hearing, Petitioner did not dispute the past incidents and outcomes. He openly and humbly acknowledged each incident and his irresponsible behavior and actions at those times. Petitioner and his character witnesses discussed his maintained sobriety, his personal work ethic, dedication to his businesses and children, and his multiple avenues through which he helps others. Personally, he has taken on the task of sponsoring and advocating for his twin brother who is having many of the problems previously experienced by Petitioner. Petitioner and others, including his ex-wife, now see him as a completely different person, demonstrating leadership to others and showing good character, integrity, trustworthiness, and honesty.

Petitioner stated that he knew a broker, Jason [M.?] with EXP Group who, with complete knowledge of Petitioner’s background, was interested in joint real estate ventures with Petitioner’s businesses and who had been supportive and helped him through his classes. Petitioner indicated that he would want to hang his license with this broker; that broker did not testify at the hearing or provide any written statement. Finally, Petitioner indicated his desire to be of value to the community at large in this field with any conditions the Department might put in place.

At hearing, the Department argued that the license was appropriately denied because Petitioner had been convicted of a felony in 2014, had failed to disclose information in the past, and had failed to comply with Court orders (for timely fines and fees payments). The Department requested that the license denial be upheld.

CONCLUSIONS OF LAW

This hearing was conducted in accordance with Arizona Revised Statutes (“A.R.S.”) § 41-1092.01 et seq. Petitioner has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See Arizona Administrative Code (“A.A.C.”) R2-19-119.

A.R.S. § 32-2153 provides as follows:

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 ... of a felony ... .

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

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.

The Commissioner is authorized under A.R.S. § 32-2153 to deny licenses for a felony conviction or in circumstances demonstrating lack of good character. The Department’s concerns in these areas are legitimate. A person with a criminal record must be given close scrutiny and careful consideration when he or she applies for a professional license. In the event of past criminal convictions or the lack of good character, good character is not automatically regained by passage of time or self-serving testimony. However, the conviction of a crime is not a permanent bar to being licensed.

Petitioner has the burden of proving by the preponderance of the evidence that he has resolved the conduct issues that led to the actions that resulted in the conviction, that the public would be protected from any such actions, and that he has sufficient good character and reputation to satisfy the statutory requirements for licensure as a real estate salesperson.

Based on the evidence presented, the Administrative Law Judge found that Petitioner has met this burden. Petitioner credibly explained and described himself and his past actions. Petitioner’s character witnesses, some of whom have been in business with him, consistently testified regarding Petitioner’s changed character and credibly testified to the present circumstances. Petitioner, and through his character witnesses, demonstrated a determined competence and an approach to the present and his present circumstances that the Administrative Law Judge concludes should provide assurance of the type of character and actions that the Department would expect from a real estate professional and, therefore, would be able to regulate in the real estate field. However, the Department’s discretion to issue a provisional licensure should be considered in the event that the Department believes such a provisional period would be useful to ensure regulation without incident.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Department’s denial be reversed and Petitioner’s appeal be granted for a licensure in the discretion of the Department.

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.

Done this day, July 28, 2020.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate