ALJDEC decisions subject to certification as final
23F-002-REL · Department of Real Estate · 2022-10-26
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Real Estate Salesperson License of:
Nelida Oveida Rios,
holder of license number SA692185000
Respondent.
No. 23F-002-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: October 06, 2022 at 1:00 PM.
APPEARANCES: Assistant Attorney General James Rolstead, Esq. appeared on behalf of the Arizona Department of Real Estate (“Department”) with Steve Hooper as a witness. Nelida Oveida Rios (“Respondent”) appeared on her own behalf. Raya Gardner and Susan Hack observed.
ADMINISTRATIVE LAW JUDGE: Jenna Clark.
_____________________________________________________________________
After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Commissioner of the Department.
FINDINGS OF FACT
Background and Procedure
On September 11, 2020, the Department issued Real Estate Salesperson License No. SA692185000 to Respondent. The license expired on September 30, 2022.
On October 26, 2021, an Indictment was issued in Case No. CR2021-002193.001 for Respondent by the Superior Court of the State of Arizona in and for the County of Maricopa. Respondent was charged with one count: Theft; a class 6 felony, by knowingly and without lawful authority taking control of $58,946.67 belonging to her employer, United Healthcare Group (“UHG”), with the intent to deprive UHG of said property, between July 24, 2019, and November 20, 2019, in violation of Ariz. Rev. Stat. §§ 131801, 1-1802, 13-701, 13-702, and 13801.
On May 03, 2022, Respondent entered into a guilty plea in Case No. CR2021-002193.001 to Count One (amended) of the Indictment, Theft – Control of Property; a class 6 designated non-dangerous felony, in violation of Ariz. Rev. Stat. §§ 13-1802(A)(1), 131801, 1-1802, 13-701, 13-702, and 13801. Respondent’s plea reads, in pertinent part of the Terms section, as follows:
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I have personally and voluntarily placed my initials beside each of the above paragraphs and signed the signature line below to indicate that I read, or had read to me, understood and approve all of the previous paragraphs in this agreement, both individually and as a total binding agreement. My plea is voluntary and no the result of force, threat, or promises other than those contained in the plea agreement.
(Emphasis added.)
On June 02, 2022, in and by the Superior Court of the State of Arizona in and for the County of Maricopa Respondent was convicted by guilty plea of Theft – Control of Property; a class 6 felony, in violation of Ariz. Rev. Stat. §§ 13-1802(A)(1) and 13-70 in case number CR2021-002193-001. Respondent received a suspended sentenced and was placed on supervised probation for 3 years and ordered to pay $58,946.67 in restitution.
On July 11, 2022, the Department issued an Order of Summary Suspension and Notice of Opportunity for Hearing (“Summary Suspension”). Respondent timely appealed.
On August 16, 2022, the Department issued a Notice of Hearing and Complaint (“Notice of Hearing “) setting the above-captioned matter for hearing at 1:00 p.m. on October 06, 2022, at the Office of Administrative Hearings (“OAH”), an independent state agency. The Notice of Hearing provides that nature and subject of the hearing is to determine whether grounds exist to revoke Respondent’s Real Estate Salesperson License No. SA692185000.
Hearing Evidence
The Department called Steve Hooper as a witness and submitted exhibits 1-10. Respondent testified on her own behalf, called Alan Baskin as a witness, and submitted Exhibits 1-5. Respondent testified on her own behalf. The substantive evidence of record is as follows:
Between July 24, 2019, and November 20, 2019, Respondent caused 78 UHG banking transactions to be completed, totaling $63,272.39, which resulted in her unlawful enrichment.
Respondent was represented by legal counsel throughout her criminal proceedings.
Respondent did not know that she needed to disclose her indictment, plea, or sentencing to the Department. Instead, she believed that once her probation period began, on September 01, 2022, that she would need to inform the Department. This belief is not due to information she received from the Department.
Regarding the underlying conduct that resulted in her criminal conviction, Respondent testified that she had been in a “terrible situation” at that time, but had since transformed into “a different person.”
Respondent also testified that she planned to have the entirety of her restitution paid off by December 31, 2022, and be off of probation. Per Respondent, her first restitution payment was made sometime in September 2022.
Closing Arguments
In closing, Respondent beseeched the Tribunal to recommend that her license be suspended, and noted that she was willing to take additional real estate education courses, and/or examination, and/or pay fees to the Department. Respondent attested that she had “learned” from her “past mistakes” and took accountability for them, as evidence by her agreeance to pay restitution in her criminal case.
In closing, the Department argued that as a protector of the public it was required to suspend Respondent’s license given the severity of her criminal conduct, and asked the Tribunal not only to affirm that determination, but to recommend revocation of Respondent’s license as well. The Department further argued that the multitude of Respondent’s transactions, the total dollar amount of the underlying theft, and the fact that the conduct occurred during Respondent’s short 4 months of employment with UHG warranted harsher discipline than suspension. The Department also noted, based on the terms of Respondent’s probation, she is unable to reapply for licensure until mid-2025.
CONCLUSIONS OF LAW
Because at all times relevant to this matter Respondent was subject to the provisions of Title 32, Chapter 20, Arizona Revised Statutes, the Commissioner of the Department has jurisdiction over Respondent and the subject matter in this case.
The case was properly brought before the Office of Administrative Hearings for adjudication pursuant to Title 2, Chapter 19, Article 1, of the Arizona Administrative Code.
Pursuant to Ariz. Rev. Stat. § 41-1092.07(G)(2) and Ariz. Admin. Code 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.
A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” It is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”
Ariz. Rev. Stat. § 32-2153(A)(3) provides, in pertinent parts, as follows:
The commissioner may revoke a license under this chapter if it appears that the holder or applicant, within five years immediately preceding, in performing or attempting to perform any acts authorized by the license or by this chapter, has:
* * *
3. Disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner.
Ariz. Rev. Stat. § 32-2153(B) provides, in pertinent parts, 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:
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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.
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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.
Ariz. Admin. Code R4-28-301(F) provides, in pertinent part, that each salesperson shall, within 10 days of each occurrence, notify the Commissioner in writing of any change in information ... and provide documentation.
Ariz. Admin. Code R4-28-303(D) provides, in pertinent part, that a salesperson shall notify the Department in writing within 10 days of any change in the individual’s personal information or qualifications. If disclosing information required under R4-28-301, such as a criminal conviction, a written statement providing detailed information and, upon request by the Department, the supporting documentation.
The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. Therefore, Department has discretion to revoke a license under Ariz. Rev. Stat. § 32-2153(B) as a real estate salesperson’s license is a privilege, not a right.
The issue in this case is, in light of Respondent’s felony conviction, whether Respondent can be trusted at this time to be responsible in her dealings with competitors and the public overall if the Department agrees not to revoke her real estate salesperson license.
The definition of what constitutes good character, or a lack thereof, is not codified by the legislature. Former United States Supreme Court Justice Frankfurter noted, “No doubt satisfaction of the requirement of moral character involves an exercise of delicate judgment on the part of those who reach a conclusion.”
The time period required for a license applicant to establish rehabilitation is commensurate with the period of misconduct and the severity of the offenses.
The material facts underlying this matter are not in dispute.
Respondent’s license is currently expired. She is currently unable to engage in real estate transactions. Approximately 4 months have passed since Respondent’s conviction. Respondent still has about 32 months of probation left to serve in her sentence. Respondent will not be able to submit a renewal request to the Department until on or about June 02, 2025.
In June of this year Respondent was convicted in a court of competent jurisdiction of felony theft. The crime, as it related to real estate, requires a knowing level of unscrupulous practices which are rooted in intentionally deceptive conduct that threaten business stability and security.
The record is devoid of empirical evidence to support a finding that Respondent has indeed learned from her “past mistake(s),” or that she is unlikely to repeat them in the future.
After closely scrutinizing the underlying conduct which resulted in Respondent’s criminal conviction, as well as the conviction itself, this Tribunal holds that the evidence of record establishes by a preponderance of the evidence that the revocation of Respondent’s real estate salesperson license is warranted because she currently poses a real and significant threat to the public. It is also the position of this Tribunal that Respondent’s criminal conviction evinces her inability to be regulated by the Department at this time.
Pursuant to Ariz. Rev. Stat. §§ 32-2153(A)(3), 32-2153(B)(2), 32-2153(B)(10), and Ariz. Admin Code R4-28-301(F) and R4-28-303(D), the Department has established grounds to take disciplinary action against Respondent’s real estate salesperson license, including revocation.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that upon the effective date of the Final Order entered in this matter the Commissioner of the Department revoke Respondent Nelida Oveida Rios’ Real Estate Salesperson License No. SA692185000.
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, October 26, 2022.
Office of Administrative Hearings
/s/ Jenna Clark
Administrative Law Judge
Transmitted electronically to:
Louis Dettorre, Commissioner
Arizona Department of Real Estate
James Rolstead
Attorney General's Office
2005 N. Central Ave.
Phoenix, AZ 85004
[email redacted]
Nelida Oveida Rios
19585 W. Mulberry Rd.
Buckeye, AZ 85396
[email redacted]
By Miranda Alvarez
Legal Secretary