ALJDEC decisions subject to certification as final

21F-154-REL · Department of Real Estate · 2021-03-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

MITCHELL, JAMES, holder of License No. SA693057000 (Candidate),

Petitioner

No. 21F-154-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 2, 2021

APPEARANCES: No one appeared for James Mitchell; Holly Wan, Esq. for the Department of Real Estate

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On January 19, 2021, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. March 2, 2021 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 James Mitchell’s application for a real estate salesperson’s license.

Through the Notice of Hearing the Department alleged that Mr. Mitchell violated Ariz. Rev. Stat. sections 32-2153(B)(2), (B)(7) and (B)(10).

Mr. Mitchell did not appear at the scheduled hearing time and the matter was convened in his absence at about 1:15 p.m.

The Department presented the testimony of senior investigator Steven Hooper.

On or about December 7, 2020, the Department received Mr. Mitchell’s application for licensure. In his application, Mr. Mitchell disclosed several convictions.

With his application, Mr. Mitchell disclosed that in 1988 he had been arrested and convicted of shoplifting. Mr. Mitchell included with his application a letter from the City of Phoenix showing that it no longer had records from 1988.

On or about February 23, 1990, in Blaine County Idaho, Mr. Mitchell pleaded guilty to, and was convicted of, driving without privilege and joyriding.

On or about September 21, 1992, in Clackamas County Oregon, Mr. Mitchell pleaded guilty to, and was convicted of, delivery of a controlled substance.

On or about June 20, 1995, in Washington County Oregon, Mr. Mitchell pleaded guilty to, and was convicted of, theft in the first degree, a Class C felony, and negotiating a bad check, a Class A misdemeanor.

On or about November 13, 2013, in Williams County North Dakota, Mr. Mitchell pleaded guilty to, and was convicted of, driving/operating a vehicle under the influence of liquor or drugs.

On or about February 6, 2020, in Clark County Nevada, Mr. Mitchell pleaded guilty to, and was convicted of, battery.

On or about March 6, 2019, in Maricopa County Arizona, Mr. Mitchell was convicted of acting in the capacity of a contractor without a license. Among other things, Mr. Mitchell was placed on probation for three years, which probation is scheduled to end on March 6, 2022.

Through a letter dated December 21, 2020, the Department informed Mr. Mitchell that it intended to deny his application based on his criminal history.

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

CONCLUSIONS OF LAW

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

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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.

The preponderance of the evidence shows that Mr. Mitchell has been convicted of theft, which is a violation of Ariz. Rev. Stat. sections 32-2153(B)(2) and (B)(10), and that he has been convicted of battery, which is a violation of section 32-2153(B)(10). These convictions and Mr. Mitchell’s other convictions are also sufficient to show a violation of section 32-2153(B)(7). Consequently, the Department has authority to deny his application.

Mr. Mitchell failed to appear and presented no evidence; consequently he has failed to meet his burden to show that he should be granted a salesperson’s license.

Mr. Mitchell’s appeal should be denied and the Department’s denial of his application should be affirmed.

ORDER

IT IS ORDERED that James Mitchell’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, March 3, 2021.

/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