ALJDEC decisions subject to certification as final

21F-123-REL · Department of Real Estate · 2021-04-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

Travis Biggs, holder of License No. SA576719000,

Respondent.

No. 21F-123-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 18, 2021

APPEARANCES: Respondent Travis Biggs 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

1. On January 12, 2017, the Arizona Department of Real Estate (Department) issued real estate Salesperson’s License No. SA576719000 to Respondent Travis Biggs. See Exhibit 1.

2. On October 1, 2020, Mr. Biggs pleaded guilty to Drug Paraphernalia-Possess/Use, a Class 6 Undesignated Non-Dangerous Felony and, in the Superior Court of Arizona, Maricopa County, in case number CR2016-140704-001. See Exhibit 4.

3. On October 1, 2020, the court accepted Mr. Biggs’s guilty plea, suspended imposition of sentence, and placed Mr. Biggs on twelve months of supervised probation. See Exhibit 4.

4. On November 17, 2020, the Department summarily suspended

Mr. Biggs’s real estate Salesperson’s license. See Exhibit 2. The Department found that Mr. Biggs had violated Arizona Revised Statutes (A.R.S.) section 32-2153 (B)(2).

5. On February 11, 2021, the Department issued a Notice of Hearing to

Mr. Biggs. The Department notified Mr. Biggs that a hearing would take place on March 18, 2021 at 1:00 p.m. to determine whether grounds exist to revoke Mr. Biggs’s real estate Salesperson’s license. The Department mailed the Notice of Hearing and Complaint via first class and registered mail to Mr. Biggs at his residential address of record.

6. On or about October 14, 2020, the Department notified Mr. Biggs that it had initiated an investigation against him because he failed to disclose a recent criminal conviction. See Exhibit 6. The October 14, 2020 notice provided in relevant part, as follows.

The Department of Real Estate, (“the Department”) has initiated an investigation based on the information received from the Clerk of the Superior Court you were convicted of possession of drug paraphernalia, a class 6 undesignated felony on or about October 1, 2020. It has been alleged you failed to disclose the conviction to the Department within the required ten (10) days.

Please provide a written, signed narrative statement concerning your knowledge and actions regarding this matter. In addition, please provide any and all related documentation, including that which supports your position.

Your response is due to the Department no later than Friday, October 23, 2020.

7. The October 14, 2020 notice was returned to the Department as undeliverable. See Exhibit 6, pg. 2.

8. On October 26, 2020, the Department notified Mr. Biggs that it had not received a response to its October 14, 2020 letter. The October 26, 2020 notice was sent to Mr. Biggs by certified mail. The October 26, 2020 letter provided, in relevant part, as follows:

On 10/14/2020, a copy of the enclosed letter was forwarded to your attention with a request for a written statement and pertinent documentation to be returned to the Department by 10/23/2020. To date, the Department has not received the request response and documentation.

So that we may more fully understand the situation, we request a written, signed stamen concerning your knowledge and actions regarding this issue. Please provide copies of all documents supporting your position. We look forward to receiving your statement and documents no later than Thursday, November 5, 2020.

Please be advised that pursuant to A.R.S. § 32-2153.B.11, it is unprofessional conduct for a licensee to fail to respond in the course of an investigation by providing documents or written statements. Further failure to respond may result in the disciplinary action against your license, as well as the issuance of a subpoena for you to participate in an investigational interview to explain your failure to respond.

9. The October 26, 2020 notice was returned to the Department as undeliverable. See Exhibit 7, pg. 2.

10. On November 3, 2020, the Department notified Mr. Biggs that it had initiated an investigation against him because he failed to disclose a recent criminal conviction. See Exhibit 8. The November 3, 2020 notice was sent to Mr. Biggs by certified mail. The notice provided in relevant part, as follows.

Your response is due to the Department no later than Friday, November 13, 2020.

11. The November 3, 2020 notice was returned to the Department as undeliverable. See Exhibit 8, pg. 2.

12. Mr. Biggs did not provide an updated address with the Department.

Mr. Biggs did not the report the conviction to the Department within 10 days of the date of the conviction. Mr. Biggs did not provide any information about the conviction.

13. On March 18, 2021, a hearing was held. The Department submitted exhibits 1 through 8, and presented the testimony of its Senior Investigator, Steven Hooper.

14. Respondent did not request to appear or that the hearing be continued. Although the start of the duly noticed hearing was delayed approximately fifteen minutes, Respondent did not appear, personally or through an attorney. Consequently, Respondent did not present any evidence to defend his real estate salesperson’s license.

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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The preponderance of the evidence shows that Mr. Biggs has been convicted of Drug Paraphernalia-Possess/Use, a Class 6 Undesignated Felony, which is a violation Ariz. Rev. Stat. §§ 32-2153(B)(2).

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

The Department established by a preponderance of the evidence that

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

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

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

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

ORDER

IT IS ORDERED that the Commissioner’s November 17, 2020 Order of Summary Suspension of Travis Biggs’s real estate Salesperson License No. SA576719000 is affirmed.

IT IS FURTHER ORDERED that Travis Biggs’s real estate Salesperson License No. SA576719000 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, April 2, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate