ALJDEC - Licensing
23F-079-REL · Department of Real Estate · 2023-05-03
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Real Estate License of:
MULDREW, ALEXUS, holder of license number SA703158000
Respondent
No. 23F-079-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 19, 2023
APPEARANCES: The Arizona Department of Real Estate was represented by Assistant Attorney General Raya Gardner. Respondent Alexus Muldrew appeared on her own behalf.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Procedural Background
On or about July 18, 2022, Respondent filed an application to be licensed as a real estate salesperson with the Department, and was subsequently granted license number SA70315800.
On or about July 18, 2022, Respondent provided the Disciplinary Actions Disclosure Form to the Department. Respondent answered “no” to question 15 on the application as follows:
Been convicted and/or entered into a plea agreement or 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, judgement 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 felony offense.
As part of the application, Respondent submitted a Fingerprint Clearance Card which was issued on July 11, 2022. However, this was not Respondent’s first attempt to obtain a Fingerprint Clearance Card. On June 14, 2022, the Department of Public Safety issued a Notice of Denial letter to Respondent, as Respondent had been involved in two misdemeanors, namely, possession of marijuana in 2014, and disorderly conduct in 2018.
Although the denial letter was copied to the Department it was not reviewed prior to the approval of Respondent’s license. Ultimately, the denial letter was reviewed on or about August 1, 2022, and on August 3, 2022, the Department sent Respondent a demand letter requesting information as to why she failed to disclose the misdemeanors.
On or about August 10, 2022, Respondent submitted her written explanation which stated that she did not read the application carefully, and did not disclose because she believed that the convictions had been sealed.
On March 15, 2023, the Department issued a Notice of Hearing and Complaint, setting the matter for hearing on April 19, 2023 at the Office of Administrative Hearings, an independent State agency.
On April 19, 2023, an evidentiary hearing was held. The Department offered nine exhibits and presented the testimony of its Senior Investigator, Bret Biesenthal. Respondent testified on her own behalf.
Additional Hearing Evidence
Bret Biesenthal
Mr. Biesenthal testified that on or about September 17, 2015, Respondent was convicted of a misdemeanor DUI in Case No. [number redacted], in Mesa Municipal Court. Mr. Biesenthal testified that throughout the proceedings, Respondent failed to appear twice. Further, Mr. Biesenthal testified that there was still a balance of $1,943.94 in court fees/fines which Respondent has failed to pay.
In addition, Mr. Biesenthal also testified as to Case No. 18-042430-1 in Tempe Municipal Court. In this matter, Respondent pled guilty to disorderly conduct on May 28, 2019.
Mr. Biesenthal testified that based upon the lack of disclosure by Respondent, the Board was concerned given the amount of documents that are typically involved in a real estate transaction. Further, Mr. Biesenthal testified that the Department was also concerned that because of Respondent’s failure to appear in court as scheduled and her failure to satisfy the court balances, this demonstrated an inability for Respondent to be regulated.
As to the delay in reviewing the notice of denial letter from the Department of Public Safety, Mr. Biesenthal testified he was unsure as to how the delay occurred, but once reviewed, the Department investigated Respondent’s criminal history and sent a letter to Respondent.
Respondent
Respondent testified that she was simply rushing through the application and did not intend to provide false or misleading information.
Respondent also testified that she took the necessary steps to obtain a Fingerprint Clearance Card after she was initially denied.
As to the misdemeanor convictions, Respondent testified that as to the DUI she was only 19 years old at the time, and was not in Arizona during some periods of the proceedings which was why she failed to appear. Also, because of her lack of employment she has been unable to fully pay the fines in both cases.
Respondent testified that she was currently a student at Grand Canyon University majoring in Communications and left her position with a broker once this action commenced.
CONCLUSIONS OF LAW
Pursuant to A.R.S. Title 32, Chapter 20, the Commissioner has jurisdiction over Respondent and the subject matter in this case. The Arizona legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. Pursuant to A.R.S. §32-2153, the Commissioner has authority to deny, suspend, or revoke the real estate license of a broker or salesperson. Pursuant to A.R.S. §32-2160.01, the Commissioner has authority to assess a civil penalty up to $1,000.00 per violation of the real estate laws and rules.
Pursuant to A.R.S. §41-1092.07(G)(2) and A.A.C. 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. See A.A.C. R2-19-119(A).
A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960).
The evidence of record established and Respondent admitted, that she failed to disclose the two misdemeanor convictions on her application in violation of A.R.S. §32-2153(B)(1).
The evidence of record established and Respondent admitted, that she had failed to pay the full court fees and fines in violation of A.R.S. §32-2153(B)(8).
The evidence of record established that Respondent was violation of A.R.S. §32-2153(A)(3).
In totality, the evidence of record established that grounds exist to discipline Petitioner’s salespersons license pursuant to A.R.S. §32-2153.
RECOMMENDED ORDER
Based upon the foregoing,
IT IS RECOMMENDED that the Department revoke Respondent’s salespersons license number SA703158000.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 forty (40) days from the date of that certification.
Done this day, May 3, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Susan Nicolson, Commissioner
Arizona Department of Real Estate
Alexus Muldrew
1250 W. Grove Parkway
2005
Tempe, AZ 85283
[email redacted]
Raya Gardner
2005 N. Central Ave.
Phoenix, AZ 85004
[email redacted]
By: OAH Staff