ALJDEC decisions subject to certification as final

20F-306-REL · Department of Real Estate · 2020-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

JOHNSON, DEVIRIS, holder of License No. SA689818000 (Candidate),

Petitioner.

No. 20F-306-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 21, 2020

APPEARANCES: Petitioner Deviris Johnson appeared on behalf of himself. 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

1. The Arizona Department of Real Estate (Department) received an application for a real estate salesperson’s license from Petitioner Deviris Johnson.

Mr. Johnson signed the application on March 5, 2020. See Exhibit 1.

2. Mr. Johnson submitted a Disciplinary Actions Disclosure form (disclosure form) with the application. Mr. Johnson signed the disclosure form on March 5, 2020. Mr. Johnson disclosed that he had been convicted of Aggravated Battery, Robbery, and two misdemeanors. See Exhibit 1.

3. On or about August 3, 2001, Mr. Johnson, as a juvenile, admitted to Aggravated Battery of a School Employee in the Twelfth Judicial Circuit, Will County, Illinois. Mr. Johnson was found to be a delinquent minor and was sentenced to one year of probation, fines, 30 hours of public service and anger management counseling.

4. On or about July 1, 2004, Mr. Johnson, as a juvenile, admitted to Robbery in the Twelfth Circuit Juridical Circuit Court, Will County, Illinois. Mr. Johnson was found to be a delinquent minor and was sentenced to five years of probation, 200 hours of public services and fines. On June 25, 2009, the court terminated Mr. Johnson’s probation.

5. On or about September 6, 2011, Mr. Johnson pleaded guilty to Attempt to Resist a Peace Officer, a misdemeanor, in the Twelfth Judicial circuit Court, Will County Illinois. The court withheld judgment and sentenced Mr. Johnson to 18 months of probation, fines, and fees. On March 5, 2013, Mr. Johnson’s probation was terminated by the court.

6. On or about March 27, 2019, Mr. Johnson pleaded guilty to and was convicted of Driving While Intoxicated, a misdemeanor, in the 41st Circuit Court in Shelby County, Shelbina, Missouri. The court sentenced Mr. Johnson to a fine.

7. On March 12, 2020, the Department issued an Intent to Deny Application notice to Mr. Johnson.

8. On March 23, 2020, the Department received a timely appeal from

Mr. Johnson.

9. A hearing was held on May 21, 2020. Mr. Johnson testified on his own behalf. The Department presented the testimony of Lara Hoover, Senior Investigator for the Department, and submitted exhibits 1 through 11.

10. Mr. Johnson testified that his parents split during his childhood and he was bullied as a juvenile. Mr. Johnson testified that he had no knowledge that a robbery took place. With regard to the crime of resisting arrest, Mr. Johnson explained that he did not commit a crime and did not know why he was being arrested. Mr. Johnson explained the circumstances that lead to the DUI were a result of poor decision making. Mr. Johnson explained that he “gave up drinking” after the DUI incident, and has matured since that time.

11. The Department’s position was that Mr. Johnson failed to establish by a preponderance of the evidence that he has changed his character.

CONCLUSIONS OF LAW

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

Pursuant to Ariz. Rev. Stat. section 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the 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).

Ariz. Rev. Stat. section 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:

* * *

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. 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.

4. 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.

5. The concern of the Department is essential and legitimate in light of the Petitioner’s past misdemeanor convictions and crimes involving violence against another person.

6. Petitioner contended that he currently is a person of good character. Petitioner’s criminal past is not a permanent bar to being licensed. However, the 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 misdemeanors and crimes involving violence against another person to establish that he has sufficient good character and reputation to satisfy the statutory requirement for licensure as a real estate salesperson.

7. Petitioner failed to meet his burden of proof to establish that he has sufficient good character and reputation to satisfy the statutory requirement for licensure in this matter. Consequently, 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 that this appeal be denied.

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-137160-45720000Done this day, June 10, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

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-137160-45720000