ALJDEC decisions subject to certification as final

22F-042-REL · Department of Real Estate · 2021-11-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

RAFAEL ERNESTO ANDRADE, License No. SA697696000 (Candidate),

Petitioner.

No. 22F-042-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 13, 2021

APPEARANCES: Petitioner Rafael Ernesto Andrade appeared on behalf of himself. Assistant Attorney General James Rolstead appeared on behalf of the Arizona Department of Real Estate.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

1. The Arizona Department of Real Estate (the Department) received an application for an Original Real Estate Salesperson’s license from Petitioner Rafael Ernesto Andrade. Mr. Andrade signed the application on July 20, 2021. See Exhibit 1.

2. Mr. Andrade submitted a Disciplinary Actions Disclosure form (disclosure form) with the application. Mr. Andrade signed the disclosure form on July 20, 2021. Mr. Andrade answered yes to the question that asked whether he had ever been convicted of, or pleaded no contest to a misdemeanor. See Exhibit 1.

3. On or about December 6, 2006, in Case No. M-0741-2646898,

Mr. Andrade pleaded guilty to, and was convicted of Shoplifting, a misdemeanor, in the Phoenix Municipal Court, Phoenix, Arizona. The conviction was based on conduct that occurred on March 18, 2002. A complaint was filed against Mr. Andrade for failing to appear in court regarding Case No. M-0741-2646898. However, the complaint was later dismissed. The court sentenced Mr. Andrade to a fine.

4. On or about December 6, 2006, in Case No. M-0741-2767095,

Mr. Andrade was convicted of the following misdemeanors in Phoenix Municipal Court, Phoenix, Arizona: (1) Driving on a Suspended License, (2) Improper License Plate Lights, and (3) No Valid Driver’s License. The court sentenced Mr. Andrade to fines. The convictions were based on conduct that occurred on September 12, 2002. A complaint was filed against Mr. Andrade for failing to appear in court regarding Case No. M-0741-2767095. However, the complaint was later dismissed.

5. On January 23, 2018, in case number M-0747-TR-[number redacted],

Mr. Andrade pleaded guilty to, and was convicted of, Driving on a Suspended License, a misdemeanor, in Glendale City Court, Glendale, Arizona. The court sentenced

Mr. Andrade to a fine. The conviction was based on conduct that occurred on February 22, 2018.

6. On August 6, 2021, the Department Mr. Andrade that it denied his application for an unrestricted Original Real Estate Salesperson’s license. However,

the Department offered Mr. Andrade a provisional license pursuant to Ariz. Rev. Stat. section 32-2153.

7. Mr. Andrade timely requested a hearing regarding the Department’s denial.

8. A hearing was held on October 13, 2020.

9. At hearing, Mr. Andrade testified on his own behalf. The Department presented the testimony of Bret Biesenthal, Senior Investigator for the Department, and submitted exhibits 1 through 9.

10. Mr. Andrade explained that he drove on a suspended license in 2018 because his fiancé was not feeling well. Mr. Andrade also explained that he failed to appear for court because he feared the consequences of appearing before a judge.

11. Mr. Andrade asserted that he was a changed person and that his criminal past is not a reflection of his character. Mr. Andrade stated that he has not found anyone who is willing to monitor his activities as a realtor. Mr. Andrade stated that he did not arrange for character witnesses to appear at the hearing because he believes that the matter is his fight.

12. The Department’s contended that Mr. Andrade failed to establish by a preponderance of the evidence that he has changed his character.

CONCLUSIONS OF LAW

The Commissioner has jurisdiction over Petitioner and the subject matter in this case.

Pursuant to Ariz. Rev. Stat. section 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Petitioner 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).

Ariz. Rev. Stat. section 32-2153 provides as follows:

B. 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:

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

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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.

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4. The Department’s concern in this case is legitimate and well founded.

A person with a criminal record must be given close scrutiny and careful consideration when he applies for a professional license.

5. The concern of the Department is essential and legitimate in light of Petitioner’s past crimes.

6. Petitioner contended that he currently is a person of good character. Petitioner’s criminal past is not a permanent bar to being licensed. However, Petitioner has the burden of proving by the preponderance of the evidence that he has resolved the issues that led to the commission of the crimes to establish that he has sufficient good character and reputation to satisfy the statutory requirement for licensure as a real estate salesperson.

7. Petitioner failed to meet his burden of proof to establish that he has sufficient good character and reputation to satisfy the statutory requirement for unrestricted licensure in this matter.

8. The preponderance of the evidence shows that the Department appropriately denied Mr. Andrade’s application for unrestricted licensure based on Ariz. Rev. Stat. section 32-2153 (B)(2),(7), and (10). Consequently, this Tribunal concludes that Petitioner’s application for unrestricted licensure should be denied.

RECOMMENDED ORDER

Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends to the Arizona Department of Real Estate Commissioner that this appeal be denied.

Done this day, November 1, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate