ALJDEC decisions subject to certification as final

20F-333-REL · Department of Real Estate · 2020-06-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Original Application for Real Estate Salesperson's License of:

RIVERA, JOSE, holder of license number SA624430000 (Candidate),

Petitioner.

No. 20F-333-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: June 11, 2020

APPEARANCES: Jose Rivera on his own behalf; Holly Wan, Esq. for the Department of Real Estate

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On May 6, 2020, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing setting the above-captioned matter for hearing on June 11, 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 intent to deny Petitioner Jose Rivera’s application for a real estate salesperson’s license.

Mr. Rivera appeared and testified on his own behalf, and he also presented the testimony of Jon Young. The Department presented the testimony of senior investigator Wayne L. Jackson.

On March 31, 2020, the Department received Mr. Rivera’s application for licensure. In his application, Mr. Rivera disclosed that he had had a professional license revoked, that he had had a judgment involving fraud entered against him, and that he had been convicted of a felony.

On October 23, 2015, in United States District Court, District of Tucson case number CR 14-01187, a jury found Mr. Rivera guilty of ten counts of mail fraud and one count of conspiracy to commit mail fraud.

The Court entered its Judgment on February 11, 2016, finding that Mr. Rivera was guilty of the ten counts of mail fraud and one count of conspiracy to commit mail fraud. Mr. Rivera was sentenced to thirteen months incarceration and was ordered to pay restitution to the United States in the amount of $135,000. Mr. Rivera was also sentenced to three years’ of supervised probation after his release from prison. Mr. Rivera successfully completed probation on January 31, 2020.

Through a Commissioner’s Final Order dated November 16, 2016, the Department revoked Mr. Rivera’s license number SA624430000, which revocation was based on the criminal convictions at issue in this matter.

In its review of Mr. Rivera’s application, the Department considered the nature of Mr. Rivera’s infractions and that he had been released from probation only recently. Through a letter dated April 9, 2020, it informed Mr. Rivera of its intent to deny his application.

Mr. Rivera requested a hearing, which led to this matter being scheduled.

Through the Notice of Hearing the Department alleged that Mr. Rivera violated Ariz. Rev. Stat. sections 32-2153(B)(2) and (B)(10).

Mr. Jackson testified that the Department’s function was to protect the public and to that licensees are entrusted to write contracts and to take earnest money. Consequently, the Department had concerns about granting Mr. Rivera’s application.

Mr. Young was Mr. Rivera’s attorney at the criminal trial and in an appeal to the Ninth Circuit Court of Appeals, which ruled against Mr. Rivera and denied his appeal. Mr. Young provided background information and expressed his opinion to the effect that he did not believe Mr. Rivera should have been convicted.

Mr. Young also referenced the presentencing report in the criminal matter, which shows that Mr. Rivera had no previous criminal history, and he testified that the criminal court imposed a sentence of only thirteen months incarceration, which is less than the sentencing guidelines called for.

Mr. Rivera testified to the effect that he did not have the requisite intent and so should not have been convicted of the crimes for which he was convicted.

Mr. Rivera testified to the effect that because his work would be conducted under the supervision of a broker, there was little or no risk to the public.

Mr. Rivera argued to the effect that because he complied with the terms of his criminal sentence and probation, the denial of his application is continued or additional punishment.

CONCLUSIONS OF LAW

Mr. Rivera bears the burden of persuasion to show that he should be granted a license. Ariz. Rev. Stat. § 41-1092.07(G)(1).

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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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.

Because Mr. Rivera has been convicted of felonies involving fraud, the Department has authority to deny his application for licensure. Ariz. Rev. Stat. §§ 32-2153(B)(2) and (B)(10).

The denial of an application for licensure is not properly considered to be punishment. See e.g., Bonasera v. Roffe, 8 Ariz. App. 1, 2, 442 P.2d 165, 166, (App. 1968)(“The purpose underlying the statutes governing those occupied in real estate activities, is to protect the public from unscrupulous and unqualified persons.”).

Mr. Rivera’s evidence was in essence limited to rearguing the facts of his conviction, and he presented no substantial evidence to show that he accepts responsibility for the acts that led to his convictions.

Mr. Rivera has not shown by a preponderance of the evidence that he should be granted a license. Consequently, Mr. Rivera’s appeal should be denied and the Department’s denial of his application should be affirmed.

ORDER

IT IS ORDERED that Jose Rivera’s appeal is denied and the Department of Real Estate’s decision to deny his application is affirmed.

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.

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-137160-45720000Done this day, June 29, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

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-137160-45720000