ALJDEC - Licensing
23F-239-REL · Department of Real Estate · 2023-05-05
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Application for Original Real Estate Salesperson License of:
JOSE R. RIVERA, holder of license number SA624430000(Candidate),
Petitioner
No. 23F-239-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: April 21, 2023
APPEARANCES: Petitioner Jose Rivera appeared on his own behalf. The Arizona Department of Real Estate was represented by Assistant Attorney General James Rolstead.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Procedural Background
On or about November 15, 2022, Petitioner filed an application to be licensed as a real estate salesperson with the Department.
On or about November 1, 2022, Petitioner provided the Disciplinary Actions Disclosure Form to the Department. Petitioner answered “yes” to the following questions on the application:
Are you currently in a deferred period of judgment or sentencing, in a diversion program, or have you ever been convicted of a Misdemeanor or Felony?
1. Been convicted or entered into a plea agreement or a plea of NOLO CONTENDRE (no contest) to ANY felony – including a Class 6 Undesignated Felony – in Arizona and/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? (A.R.S. § 32-2108(C)(3)(a); A.R.S. § 32-2123(B)(4)).
For all license, education, and public report types, whether approval or renewal, applicants must respond to ALL questions.
1. Had a professional or occupational license or registration in any state, of ANY kind, denied, suspended, restricted or revoked? (Driver’s License/CDL not included) (A.R.S. § 32-2108(C)(3)(b); A.R.S. § 32-2194.03(B)(9)).
Had any judgment and/or order against them by ANY court involving fraud, forgery, theft, burglary, larceny, bribery, embezzlement, money laundering, extortion, dishonesty, misrepresentation, unfair trade practice or moral turpitude? (A.R.S. § 32-2108(C)(3)(e); A.R.S. § 32-2194.03(B)(9)).
On or about November 10, 2022, Petitioner supplied a written personal statement to the Department.
On or about January 23, 2023, the Department informed Petitioner via certified mail that based on his felony conviction for Conspiracy to Commit Mail Fraud and ten counts of Mail Fraud, it would deny him a real estate salespersons license.
On February 20, 2023, Petitioner sent a response and requested a reconsideration of the Department’s decision.
The Department referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.
On April 21, 2023, an evidentiary hearing was held. Petitioner testified on his own behalf. The Department offered nine exhibits and presented the testimony of its Senior Investigator, Bret Biesenthal.
Petitioner’s Criminal History
On or about July 19, 2014, a Direct Indictment was issued against Petitioner charging him with Conspiracy to Commit Mail Fraud, Mail Fraud, and Theft of Government Money in case CR14-1187TUC, in United State District Court.
On or about February 9, 2016, after a jury found a guilty verdict on October 23, 2015, Judgment was entered against Petitioner. The Court ordered that Petitioner be sentenced to 13 months in federal prison, followed by supervised release for an additional three years. Further, Petitioner and his co-defendants were ordered to forfeit $126,900.00 and pay restitution in the amount of $135,000.00.
On or about November 14, 2022, Petitioner received a Notice of Discharge from Probation.
Additional Hearing Evidence
Petitioner
Petitioner testified that he did not dispute any of the facts in this matter. Petitioner testified further that he was careless in his business practice and believed he could simply “waive the deductible” as he had seen in an auto repair shop.
Petitioner testified that moving forward he has learned to research and ask for help to ensure everything is correct.
Petitioner testified further that he believed that a provisional license would be beneficial in his case as he would be able to ask his broker any questions and all transactions would have to be approved by the broken to avoid carelessness.
Finally, Petitioner testified that his was working on selling a soft-drink to the Coca-Cola Company, doing life coaching, and was currently in school for hypnotherapy.
Bret Biesenthal
Mr. Biesenthal testified that he reviewed Petitioner’s application and that the Department decided to deny Petitioner a license due to the felony conviction and the type of crime involved.
Also, Mr. Biesenthal testified that the restitution amount was $100,607.40 as of November 10, 2022.
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 she has made to rectify those past mistakes, Petitioner at this time is rehabilitated and can be trusted to be responsible and forthright in her dealings with her clients and members of the public if the Department grants her 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. Petitioner does not dispute any of the facts in this case. While Petitioner has remained out of trouble since the conviction, the tribunal is concerned about the type of crime involved, namely that large sums of money were obtained illegally.
After closely scrutinizing the evidentiary record, the undersigned Administrative Law Judge concludes that Petitioner has not sustained his burden of proof in this matter by a preponderance of the evidence. Grounds existed for the Department to deny issuance of a real estate salesperson license to Petitioner in accordance with Ariz. Rev. Stat. §§ 32-2153(B)(7), (B)(9), and (B)(10).
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that the Commissioner affirm the Department’s determination to deny Petitioner’s application for a Real Estate Salesperson License pursuant to Ariz. Rev. Stat. § 32-2153(B).
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 5, 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
Jose R. Rivera
4750 N. Central Ave.
Unit 7P
Phoenix, AZ 85012
[email redacted]
James Rolstead
Attorney General's Office
2005 N. Central Ave.
Phoenix, AZ 85004
[email redacted]
By: OAH Staff