ALJDEC decisions subject to certification as final

21F-244-REL-RES · Department of Real Estate · 2021-11-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson License of:

DOUGLAS T. RIEDEMAN, holder of License No. SA686996000,

Respondent

No. 21F-244-REL-RES

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: November 3, 2021

APPEARANCES: Douglas Riedeman represented himself. Assistant Attorney General James Rolstead represented the Department of Real Estate.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Commissioner of the Arizona Department of Real Estate.

FINDINGS OF FACT

On October 25, 2019, the Arizona Department of Real Estate (“Department”) issued provisional real estate salesperson license number SA686996000 to Douglas Riedeman (“Respondent”). Respondent’s license expired on October 31, 2021.

On or about November 11, 2019, Respondent was arrested following an incident in which he was driving while his license was suspended and while he was intoxicated and crashed into bollards at the University of Arizona, causing property damage. Respondent was indicted on February 7, 2020 on two separate counts of Aggravated Driving, Class 4 felonies, and one count of Criminal Damage, a Class 1 misdemeanor.

Under a Plea Agreement, on October 6, 2020, Respondent pleaded guilty to (a) Endangerment, a Class 6 Felony, and (b) Driving While Under the Influence of Liquor, Drugs, Vapor Releasing Substances, or any combination, a Class 1 misdemeanor, in Pima County Superior Court (“Court”), Tucson, Arizona, in Case No. CR20200705-001.

On November 6, 2020, the Court pronounced sentencing, finding Respondent guilty of Amended Count One Endangerment, a Class 6 Felony, placing him on a two-year term of probation. At the same time, the Court found Respondent guilty of Amended Count Two, Driving While Under the Influence, a Class 1 misdemeanor, placing him on a concurrent two-year term of probation with one term of probation being incarceration in Pima County Jail for one day. Additionally, the Court imposed fines and set fees.

Respondent failed to report the conviction within 10 days as required by Arizona Administrative Code (“A.A.C.”) R4-28-301(F) and R4-28-303(D).

Respondent reported the conviction to the Department on March 11, 2021.

As a result of the above, by Order dated March 19, 2021, the Department summarily suspended Respondent’s real estate salesperson license.

On July 8, 2021, the Department issued its Notice of Hearing and Complaint in this matter notifying Respondent of an administrative hearing and the need to file a written Answer.

On July 30, 2021, Respondent filed his Answer admitting the convictions and indicating that he had paid all fines and fees and, because he had been in compliance with the terms of probation, he had petitioned for release from probation.

The Notice of Hearing indicated the Department’s position that grounds exist to suspend or revoke Respondent’s real estate salesperson’s license based on the violations of A.R.S. §§ 32-2153(A)(3), (B)(2), and A.A.C. R4-28-303(D) and R4-28-301(F).

At hearing, the Department presented the basis for its decision to summarily suspend Respondent’s license and requested a recommendation that Respondent’s license be revoked.

At hearing, Respondent forthrightly acknowledged the 2019 incident and credibly testified as to such incidents being in the past and behind him. Respondent humbly and remorsefully recognized the seriousness of the consequences of those youthful actions due to the ensuing situation causing him trauma, jail time, and the terms and consequences of probation. Respondent has become focused as to any and all requirements in his efforts to take corrective actions to demonstrate his competency and acceptance of responsibility for his actions; he has become a completely different person, putting the past behind himself. While acknowledging that he is only one-half way through his probation, he indicated that he has petitioned for release from probation calling attention to his probation officer’s statement in support of Respondent’s compliance with probation.

In April 2021, Respondent’s request for reinstatement of his Arizona driving privileges was denied for the reason that his license was in a revoked status with ineligibility to re-apply until December 9, 2021.

On September 17, 2021, the Arizona Board of Fingerprinting (“Board”) granted Respondent a good cause exception for a standard fingerprint clearance card. The Board may grant a good cause exception if the person shows to the Board’s satisfaction the person is not awaiting trial on or has not been convicted of committing any of certain offenses [listed in A.R.S. §§ 41-1758.03 (B) or 41-1758.07(B)] or that the person is successfully rehabilitated and is not a recidivist. In Respondent’s case, the Board adopted a hearing officer’s recommendation to grant a good cause exception; the hearing officer found that Respondent was rehabilitated and was not a recidivist.

Respondent has a driving restriction on his fingerprint clearance card. Pursuant to A.R.S. § 41-1758.03(D), Respondent is precluded from driving any vehicle to transport employees or clients of an employing agency as part of the person’s employment; however, Subsection D does not preclude a person from driving a vehicle alone as part of the person’s employment.

Michael N. Figueroa, an active Real Estate Broker, is Respondent’s current employer. Since April or May of 2020, Respondent has been an assistant to Mr. Figueroa. Given his background and experience in assessing situations and character of individuals, Mr. Figueroa expressed his belief in the changes Respondent has made in his thinking and life and as to the existing good moral character of Respondent as to a future professional status in real estate.

In its Notice of Hearing, the Department alleged that Respondent had violated state law regarding those past actions, in conduct resulting in a conviction in a court of competent jurisdiction of a felony violating A.R.S. § 32-2153(B)(2); in failing to notify the Department in writing within 10 days of the conviction violating A.A.C. R4-28-303(D) and R4-28-301(F); and if violating any rules adopted by the commissioner in violation of A.R.S. § 32-2153(A)(3).

At hearing, the Department argued that Respondent’s license was appropriately suspended because Respondent had been convicted of a serious felony, Endangerment, and he had failed to timely disclose the conviction to the Department. The Department’s concern, related to the public safety, is whether Respondent can be regulated pursuant to the Department’s authority. The Department requested that Respondent’s license be revoked at this time.

Since the date of the administrative hearing in this matter, neither party has notified the Tribunal of a mutual resolution of this matter.

CONCLUSIONS OF LAW

This hearing was conducted in accordance with Arizona Revised Statutes (“A.R.S.”) § 41-1092.01 et seq.

Pursuant to A.R.S. § 41-1092.07(G)(2) and See Arizona Administrative Code (“A.A.C.”) R2-19-119(B), the Department 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).

A.R.S. § 32-2153 provides as follows:

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:

2. Been convicted in a court of competent jurisdiction . . . of a felony.

The Commissioner is authorized under A.R.S. § 32-2153 to suspend or revoke licenses for a felony conviction or in circumstances demonstrating lack of good character. The Department’s concerns in these areas are legitimate. A person with a criminal record must be given close scrutiny and careful consideration when he or she applies for a professional license. In the event of past criminal convictions or the lack of good character, good character is not automatically regained by passage of time or self-serving testimony. However, the conviction of a crime is not a permanent bar to being licensed.

The evidence of record established that Respondent was convicted in a court of competent jurisdiction of Endangerment, a Class 6 felony, within the meaning of A.R.S. § 32-2153(B)(2), and failed to report that conviction to the Department within 10 days as required by A.R.S. § 32-2153(B)(2) and A.A.C. R4-28-303(D) and R4-28-301(F).

At the time, of the summary suspension, Petitioner was on probation for that conviction. Therefore, the imposition of a summary suspension was warranted.

The Department established it had grounds to revoke Petitioner’s license pursuant to A.R.S. §§ 32-2153(A)(3), (B)(2), and A.A.C. R4-28-303(D) and R4-28-301(F).

Respondent credibly explained and described himself and his past actions. Petitioner’s character witness, who has employed Respondent, credibly testified regarding Petitioner’s changed character and the present circumstances. Respondent, through his own testimony and his character witness, demonstrated a determined competence and an approach to his present circumstances that the Administrative Law Judge concludes should provide assurance of the type of character and actions that the Department would expect from a real estate professional and, therefore, would be able to regulate in the real estate field.

Problematically, Respondent remains on probation at this time.

While Respondent’s license has expired, nevertheless, the Department’s authority to suspend and revoke an expired license remains within its discretion.

Based on the foregoing, it is recommended that the Department allow Respondent’s licensure to be considered expired as a result of the expiration date rather than revoking the license, which would enable reconsideration of licensure in the event Respondent reapplies for licensure in the future.

RECOMMENDED ORDER

IT IS ORDERED reversing the summary suspension issued by the Department.

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 shall be five days from the date of the certification.

Done this day, November 23, 2021.

/s/ Kay A. Abramsohn

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate