ALJDEC decisions subject to certification as final

23F-062-REL · Department of Real Estate · 2022-10-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson License of:

ANDRES AVITIA, holder of license number SA703744000

Petitioner

No. 23F-062-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 7, 2022.

APPEARANCES: Andres Avitia (“Petitioner”) appeared on his own behalf; the Arizona Department of Real Estate (“the Department”) was represented by James Rolstead, Esq., Assistant Attorney General.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Procedural Background

On or about August 11, 2022, Petitioner filed an application to be licensed as a real estate salesperson with the Department. Petitioner answered “yes” to the following questions on the application:

Has the Applicant . . .

6. Had any judgment and/or order against him by ANY court involving fraud, forgery, theft, burglary, larceny, bribery, embezzlement, money laundering, extortion, dishonesty, misrepresentation, unfair trade practice, or moral turpitude.

14. Been convicted and/or entered into a plea agreement or a plea of NOLO CONTENDRE (no contest) to ANY felony in Arizona or any other state, whether or not the plea or verdict was set aside, sealed, judgment or sentencing was deferred, conviction was dismissed or expunged, or has been pardoned, or the conviction is being appealed?

15. Been convicted or entered into a plea agreement or a plea of NOLO CONTENDRE (no contest) to ANY misdemeanor in Arizona or any other state, whether or not the plea or verdict was set aside, sealed, judgment or sentencing was deferred, the conviction was dismissed or expunged, or has been pardoned, or the conviction is being appealed? CONVICTIONS – DUI AND/OR RECKLESS DRIVING EITHER MISDEMEANOR OR FELONY, MUST BE DISCLOSED. Minor traffic citations do not constitute a misdemeanor or felony offense.

Petitioner attached to his application for a real estate salesperson’s license a Personal Statement, wherein he described his past transgressions and how he has been reformed.

On August 15, 2022, the Department informed Petitioner via certified mail that based in part on his criminal convictions, it would deny him real estate salespersons license.

On August 16, 2022, Petitioner requested an informal settlement conference as well as a hearing on the Department’s denial of his application for a real estate salesperson’s license.

The Department referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On October 7, 2022, a hearing was held. Petitioner and testified on his own behalf. The Department offered seven exhibits and presented the testimony of its Senior Investigator, Bret Biesenthal.

Mr. Biesenthal testified that he reviewed Petitioner’s application and conducted an investigation into Petitioner’s criminal history. Mr. Biesenthal testified as to the following:

In July 2005, Respondent plead nolo contendere to a charge of prostitution in case 5IW02179. As part of the please agreement, Petitioner was to submit to an AIDS test. Petitioner failed to complete the same and a bench warrant was issued. Petitioner later completed the test and the bench warrant was quashed.

In November 2005, Petitioner plead nolo contendere in case VA086042, to a charge of Assault with a Deadly Weapon as a result of a bar fight whereby the victim was hot with a glass object.

In September 2006, Petitioner plead guilty in case BA327102, to a charge of second degree burglary. Petitioner and a friend stole golf clubs from an open garage.

Mr. Biesenthal testified that because of the seriousness of the last two convictions mentioned above, the Board denied a real estate salespersons license. Mr. Biesenthal testified that Petitioner’s failure to follow a court order to undergo AIDS testing, demonstrated perhaps, an inability to be regulated.

Finally, Mr. Biesenthal testified that although over 15 years had passed since the convictions, it was the seriousness of the same which caused the Department’s decision.

Petitioner testified generally that the criminal offenses mentioned above were due to his excessive drinking. However, in the past 15 plus years, he has been married, has two children, and owns a convenience store in California as well as five rental properties. He testified further that he has not been in trouble with the law since those convictions.

In addition, Petitioner testified as to each of the convictions as follows:

As to the bench warrant in the prostitution case, Petitioner testified that he was young and scared about the possibility of having HIV/AIDS which is why he initially hesitated to take the test as court ordered. He testified however, that ultimately he complied with the court order.

Petitioner testified that while he was convicted of assault with a deadly weapon in the bar fight, he did not have a gun and that he did not assault anyone.

Finally, as to the burglary case, it was his buddy who was riding with him that took the golf clubs from the open garage.

Petitioner also testified that while he did not attend Alcoholics Anonymous or a similar program, he now can control his drinking and now can have one beer, as he testified he did on Labor Day, and stop.

Finally, Petitioner requested that he would accept a provisional license for a period of three years to prove to the Department that he is reformed.

CONCLUSIONS OF LAW

The Department has jurisdiction to consider Petitioner’s appeal of its denial of his application for a real estate salesperson’s license based on his history of criminal convictions.

Petitioner bears the burden of proof to establish that he is rehabilitated and that he now meets statutory qualifications for a real estate salesperson’s license 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.” A preponderance of the evidence is “[t]he 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.”

The legislature established the Department to protect “the public health, safety and welfare by regulating the sale of real estate . . . .” A real estate salesperson’s license is a privilege, not a right. The Department has discretion to grant or deny a license to an applicant under A.R.S. § 32-2153(B). The issue is whether in light of Petitioner’s past mistakes and the efforts that he has made to rectify those past mistakes, Petitioner at this time is rehabilitated and can be trusted to be responsible and forthright in his dealings with his clients and members of the public if the Department grants his application for a real estate salesperson’s license.

The issue of what constitutes good character or a lack thereof is nebulous at best. 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, having heard and seen the applicant . . . , a judgment of which it may be said as it was of "many honest and sensible judgments" in a different context that it expresses "an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions; impressions which may lie beneath consciousness without losing their worth." . . .

Once good character is shown to be absent, it is not automatically regained by the mere passage of time. Positive and affirmative activities are required for a person to regain what was lost.

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 tribunal commends Petitioner of his candor on his application and at hearing. As to Petitioner’s reasoning for not submitting to the HIV/AIDS test, the tribunal understands and appreciates the same, and does not believe that this demonstrates an unwillingness to be regulated as this was certainly a unique situation.

As to the assault with a deadly weapon charge, the tribunal was concerned with Petitioner’s testimony as he seemed to be minimizing his responsibility in the fight, and that a glass was not a deadly weapon. In addition the burglary charge is likewise very troubling as Petitioner could have unmonitored access to people’s homes during his course as a real estate salesperson. The tribunal understands that in Petitioner’s mind, these convictions were due to Petitioner’s alcohol use, the tribunal is concerned that Petitioner never received treatment for his alcohol use and that Petitioner admitted that he has not stopped drinking. It is because of this, that despite the time that has elapsed since the convictions, the tribunal does not believe that Petitioner is rehabilitated at this time.

RECOMMENDED ORDER

Based on the foregoing, IT IS ORDERED that Petitioner Andres Avitia shall be denied a real estate salesperson’s license.

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 will be five days from the date of that certification.

-54864001

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-137160-45720000Done this day, October 19, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate

James Rolstead

[email redacted]

Andres Avitia

[email redacted]

By Miranda Alvarez

Legal Secretary -54864001

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-137160-45720000