ALJDEC decisions subject to certification as final

22F-207-REL · Department of Real Estate · 2022-03-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

GARCIA, STEVE Holder of License No. SA700109000 (Candidate),

Petitioner

No. 22F-207-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 25, 2022

APPEARANCES: Steve Garcia on his own behalf; Holly Wan, Esq. for the Department of Real Estate

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On January 20, 2022, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing setting the above-captioned matter for hearing on February 25, 2022 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 Steve Garcia’s application for a real estate salesperson’s license.

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

Mr. Garcia appeared and testified on his own behalf, and he presented the testimony of Mario Ancich.

Mr. Ancich was a police officer for almost 40 years; he met Mr. Garcia in 1986 and he also knows Mr. Garcia’s wife, children and grandchildren.

The Department presented the testimony of senior investigator Bret Biesenthal.

On or about December 8, 2021, the Department received Mr. Garcia’s application for licensure. In his application, Mr. Garcia answered “yes” to the question of whether he had ever been convicted of a misdemeanor.

On November 18, 1999, in Maricopa County Superior Court case CR1999-094650, Mr. Garcia pleaded guilty to, and was convicted of, aggravated driving under the influence of intoxicating liquor or drugs, a class 6 undesignated offense. Mr. Garcia was sentenced to three years’ probation, from which he was discharged in January 2002.

On January 26, 2002, Mr. Garcia pleaded guilty to, and was convicted of, threatening. Mr. Ancich explained that this conviction arose after Mr. Garcia’s ex-wife broke into his house.

On August 3, 2004, in Maricopa County Superior Court case CR2003-037018, Mr. Garcia pleaded guilty to, and was convicted of, aggravated driving under the influence, a class 4 felony. Mr. Garcia was driving on a suspended license at the time. Mr. Garcia was sentenced to four month’s incarceration, to be followed by five years’ probation, from which he was discharged in December 2010.

The December 2010 Order of Discharge shows that Mr. Garcia had failed to fully comply with all terms of his probation because he had not paid all court-ordered fees. Nevertheless, the Order shows that a petition to revoke was not appropriate because Mr. Garcia had been making sporadic payments throughout his probation.

On June 28, 2012, in Maricopa County Superior Court case CR2012-118821, Mr. Garcia pleaded guilty to, and was convicted of, aggravated driving under the influence, a class 4 felony. Mr. Garcia was driving on a suspended license at the time.

On July 26, 2012, Mr. Garcia was sentenced to 2.5 five years’ imprisonment. The sentence called for Mr. Garcia to be incarcerated in the Marana Facility to address substance abuse issues. Mr. Garcia did participate in substance abuse counseling while in prison.

Through a letter dated December 17, 2021, the Department informed Mr. Garcia of its intent to deny his application.

Mr. Garcia requested a hearing, which led to this matter be scheduled.

Mr. Biesenthal testified that the Department had concerns because of Mr. Garcia’s history of convictions that includes two felonies. He explained that the Department has a duty to protect the public and that a licensee must follow the rules. Mr. Garcia’s second and third DUIs involved driving while on suspended license, which shows a disregard for the law and raises the question of whether Mr. Garcia can be regulated.

Mr. Garcia acknowledged that the charges against him were all true, but testified to the effect that he has changed and that he has not committed any infractions in nearly ten years. He expressed his regret and shame for his past actions, and explained that he now lives for family and faith. He has been married for five years and has four grandchildren

Mr. Garcia is active as an usher at Phoenix First Apostolic Church, where he also counsels youth, including showing the negative impacts of his own poor choices.

Mr. Garcia received substance abuse counseling while in prison and also through a six-month program at the Church on the Street. He no longer drinks and is disgusted by the thought of how he behaved when he did drink.

After being released from prison, Mr. Garcia attended community college while working at Wing Stop making pizza and wings. Since then, he has had jobs in sales and the Aerotech industry and now works for Fortress University doing credit repair work. He has never stopped being productive and is working on obtaining a Series 6 license, with his goal being to keep improving for himself and his family.

Mr. Ancich has shared a bible study with Mr. Garcia and believes that he knows the complete person. He testified that Mr. Garcia has had zero bad marks since he was released from prison and that Mr. Garcia has grown since that time. Mr. Ancich’s opinion is that Mr. Garcia poses no threat to the public.

Mr. Garcia acknowledges the Department’s need to protect the public, but believes that he is no threat to the public and he is asking for the chance to prove himself.

CONCLUSIONS OF LAW

Mr. Garcia 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.

Because Mr. Garcia has convicted of two felonies, the Department has authority to deny his application for licensure. See Ariz. Rev. Stat. § 32-2153(B)(2) and (B)(7).

Considering the age of Mr. Garcia’s convictions, his testimony and that of Mr. Ancich, it would be appropriate for the Department to issue Ms. Garcia a provisional license including such terms and conditions that the Commissioner deems appropriate.

RECOMMENDATION

IT IS RECOMMENDED that the Department issue to Steve Garcia a provisional license including such terms and conditions that the Commissioner deems appropriate.

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 11, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate

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-137160-45720000