ALJDEC decisions subject to certification as final
21F-167-REL · Department of Real Estate · 2021-03-05
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Real Estate Broker License of:
GILLHAM, BRIAN D, holder of License
No. BR572504000,
Petitioner.
No. 21F-167-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: February 25, 2021
APPEARANCES: Petitioner Brian D. Gillham appeared on behalf of himself. 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 May 14, 2010, the Arizona Department of Real Estate (Department) issued real estate broker’s License No. BR572504000 to Petitioner Brian D. Gillham. See Exhibit 1.
2. On or about October 28, 2020, Petitioner pleaded guilty to Theft-Control Property, a Class 6 Undesignated Offense Felony, in the Superior Court of Arizona, Maricopa County, in case number CR2020-128096-001. See Exhibit 4 and Exhibit 5. The conviction was based on conduct that occurred on June 11, 2020 involving the theft of a Baretta .380 pistol. See Exhibit 3, pg. 5. Petitioner is a professional locksmith. Petitioner stole the pistol while he was changing the lock on an individual’s rental property.
3. The Direct Complaint shows that Petitioner was interviewed by law enforcement on June 22, 2020. See Exhibit 3, pg. 5. During the interview, Petitioner confessed to taking a firearm, money from a wallet, and a package of baby wipes.
See id at pgs. 4-5.
4. On November 18, 2020, the court accepted Petitioner’s guilty plea, suspended imposition of sentence, and placed Petitioner on nine months of supervised probation. See Exhibit 5.
5. On January 5, 2021, the Department summarily suspended Petitioner’s real estate broker’s License No. BR572504000. See Exhibit 2. The Department found that Petitioner had violated A.R.S. sections 32-2153(B)(2), (B)(7), and (B)(10).
6. On February 11, 2021, the Department issued a Notice of Hearing to
Petitioner. The Department notified Petitioner that a hearing would take place on February 25, 2021 at 1:00 p.m. to determine whether grounds exist to revoke Petitioner’s real estate license based on alleged violations of A.R.S. sections 32-2153(B)(2) and (B)(10).
7. On February 25, 2021, a hearing was held. The Department submitted exhibits 1 through 6, and presented the testimony of its Senior Investigator, Bret Biesenthal. Petitioner testified on behalf of himself.
8. At hearing, Petitioner explained that he was suffering from depression at the time that he stole the gun. Petitioner stated that he would have harmed himself if he had not been caught. Petitioner asserted that the crime of theft is not a reflection of his true character. Petitioner stated he is currently taking medication to treat his condition.
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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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.
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The concern of the Department is essential and legitimate in light of
Petitioner’s crime of theft. The legislature has charged the Department with protecting the public and consumers who deal with real estate brokers.
The preponderance of the evidence shows that Petitioner has been
convicted of Theft-Control Property, a Class 6 Undesignated Offense Felony.
7. Because Petitioner was convicted of a felony, the Department had authority to summarily suspend his license. See Ariz. Rev. Stat. §§ 32-2153(B)(2) and 32-2157(B).
8. Based on the proven violation, the Department has authority to revoke
Petitioner’s license. Ariz. Rev. Stat. §§ 32-2153(A) and (B).
9. Considering the facts and circumstances of this matter, Petitioner’s license should be revoked. See Ariz. Rev. Stat. § 32-2130(I).
ORDER
IT IS ORDERED, that the Commissioner’s January 5, 2021 Order of Summary Suspension of Brian D. Gillham’s real estate broker License No. BR572504000 is affirmed.
IT IS FURTHER ORDERED, that the Department’s Brian D. Gillham’s License No. BR572504000 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, March 5, 2021.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate