ALJDEC decisions subject to certification as final

22F-209-REL · Department of Real Estate · 2022-03-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson's License of:

MCGUIRE, MORGAN JAMES, holder of license number SA106054000,

Respondent

No. 22F-209-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: March 8, 2022

APPEARANCES: Morgan James McGuire on his own behalf; Holly Wan, Esq. for the Department of Real Estate

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On January 28, 2022, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing and Complaint setting the above-captioned matter for hearing on March 8, 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 uphold the summary suspension and/or revoke Respondent Morgan James McGuire’s License No. SA106054000.

Mr. McGuire’s license was summarily suspended on December 14, 2021, and it will expire on September 30, 2022.

Mr. McGuire appeared and testified on his own behalf.

The Department presented the testimony of senior investigator Steve Hooper.

On July 28, 2021 Mr. McGuire was indicted and charged with seven felonies that were alleged to have occurred on February 12 and 19, and March 16 and 26, 2021.

On October 6, 2021, Mr. McGuire pleaded guilty to count 1 as amended, solicitation of sale or transport of dangerous drugs, and count 5 as amended, possession or use of narcotic drugs, both class 4 felonies.

On November 9, 2021, for each conviction Mr. McGuire was sentenced to supervised probation for two years beginning on that date. In addition, on count 1, Mr. McGuire was sentenced to three months in the county jail beginning on August 1, 2022, with the possibility for that jail term to be further deferred or deleted if he is in compliance with the terms of his probation. On count 5, Mr. McGuire was also required to complete a total of 360 hours of community restitution.

Mr. McGuire did not report his felony convictions to the Department within ten days of the convictions.

Mr. Hooper testified to the effect that the Department has a duty to protect the public and that in light of Mr. McGuire’s two felony convictions and related probation, he was no longer eligible to practice.

At the hearing, Mr. McGuire acknowledged his convictions and testified to the effect that he had made a bad mistake. He requested the chance to keep his license with his hope being that he would no longer be on probation when his license expires in September 2022. He also testified to the effect that his broker is willing to sign-off on a probationary license.

Mr. McGuire testified to the effect that his criminal defense attorney had informed him that he was not required to report to the jail on August 1, 2022.

Mr. McGuire also testified that as of the hearing date he had completed 100 of his 360 hours of community restitution.

The Department alleges that Mr. McGuire violated Ariz. Rev. Stat. sections 32-2153 (A)(3), (B)(2) and (B)(7), and Ariz. Admin. Code sections R4-28-303(D) and R4-28-301(F).

The Department requested that Mr. McGuire’s license be revoked.

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).

Mr. McGuire has been convicted of two felonies and is on probation. Consequently, the Department’s decision to summarily suspend his license was appropriate. See Ariz. Rev. Stat. § 32-2157(C).

Because he has been convicted of two felonies, the Department has authority to revoke Mr. McGuire’s license. See Ariz. Rev. Stat. § 32-2153(B)(2) and (B)(7).

As it now stands, Mr. McGuire will be on probation when his license expires on September 30, 2022. Consequently, the Department would not be allowed to renew his license at that time. See Ariz. Rev. Stat. § 32-2130(I).

Mr. McGuire did not report his felony convictions to the Department within ten days a required by Ariz. Admin. Code sections R4-28-301(F) and R4-28-303(D), which is a violation of Ariz. Rev. Stat. section 32-2153(A)(3).

Considering Mr. McGuire’s two felony convictions and that he will be on probation until November 2023, his license should be revoked.

RECOMMENDED ORDER

IT IS ORDERED that the summary suspension of Morgan James McGuire’s License No. SA106054000 is affirmed;

IT IS FURTHER ORDERED that Morgan James McGuire’s License No. SA106054000 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.

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-137160-45720000Done this day, March 9, 2022.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate

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001

-137160-45720000