ALJDEC - Licensing
24F-118-REL · Department of Real Estate · 2024-08-07
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Real Estate License of:
MICHAEL, IAIN, holder of license number SA654808000,
Respondent
No. 24F-118-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 23, 2204
APPEARANCES: The Arizona Department of Real Estate was represented by Assistant Attorney General Lynette Evans. Respondent Iain Michael appeared on his own behalf.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
EXHIBITS ADMITTED INTO EVIDENCE: Department’s Exhibit 1-10, and Respondent’s Exhibits 1-3 and 5-9 were admitted into evidence.
_____________________________________________________________________
FINDINGS OF FACT
On June 18, 2015, the Arizona Department of Real Estate (Department) issued real estate salesperson’s license number SA654808000 to Respondent Iain Michael. Respondent’s license is scheduled to expire on June 30, 2025.
In November 2023, the Department became aware that Respondent’s Fingerprint Clearance Card (FCC) was no longer valid.
On November 20, 2023, the Department sent Respondent a message requesting that he provide the Department with a valid FCC within ten days.
4. On November 30, 2023, Respondent responded to the Department and requested that the Department allow his real estate license to remain active during his legal proceedings.
5. The Department sent Michael a response advising that Arizona law requires a real estate license be suspended if a licensee cannot provide a valid FCC within ten days of the request from the Department.
6. On January 3, 2024, Michael pleaded guilty to Amended Count Five: ATTEMPTED AGGRAVATED ASSAULT ON A PEACE OFFICER, a class six undesignated offense, in Pima County Superior Court, case number CR-20232978-001.
7. On February 6, 2024, the court sentenced Michael to three years of supervised probation and ten days in the Pima County jail.
On or about December 27, 2023 a Notice of Hearing was issued setting a hearing in this matter for February 6, 2024.
On or about February 21, 2024, an Amended Notice of Hearing was issued setting a hearing on March 27, 2024.
After several continuances the hearing was held on July 23, 2024.
At hearing, the Department presented the testimony of Steven Hooper.
12. Mr. Hooper was a Senior Investigator with the Department. He testified that he investigated this matter and testified as to the above timeline.
13. Mr. Hooper testified that the Respondent had still failed to provide a valid FCC to the Department.
14. As to the Attempted Aggravated Assault guilty plea, Mr. Hooper testified that while there were a total of 6 counts on the indictment, Respondent only pled guilty to the one count.
15. Further, Mr. Hooper testified that the Department reviewed the Statement of Probable Cause (Statement) from the Interim Complaint filed on July 27, 2023. That statement included the following in pertinent part:
...While officers were making contact with the victim in this case, the defendant walked up to the offices, the victim pointed out the defendant to the officers. the officers made contact, at which point the defendant was extending two middle fingers, officers attempted to detain the suspect, a physical altercation occurred, officers were providing verbal commands to the suspect, who was showing signs of active aggression. During the incident the defendant got one of the officers in a headlock, which caused the officers glasses to mark/bruise the side of his nose. Additional officers attempted to restrain the defendant. An additional officer sustained scrapes and cuts to her knee...
(All errors contained in the original).
16. In addition, Mr. Hooper testified that there were no other complaints/investigations on Respondent’s record.
17. Respondent testified that he was unable to retrieve his FCC from his apartment, because he was unable to return to the apartment after the incident with his roommate.
18. Further, Respondent testified that he had been taking courses to obtain his broker’s license, and was concerned about the status of that should the Department suspend or revoke his license.
19. Respondent also testified that although he had been on a sabbatical, he was currently enrolled in law school. Too, Respondent was a licensed loan originator.
20. In addition, Respondent testified that since the incident, he has conducted numerous transactions without complaints, and that all of his customers are secure with him in purchasing and refinancing their homes.
21. In closing, Respondent believed that he should be suspended for one year.
22. In its closing, the Department argued that Respondent’s license should be revoked.
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).
A.R.S. § 32-2108.01(C) provides:
The department shall not issue a license to an original license applicant before receiving a valid fingerprint clearance card pursuant to this section. However, the department shall suspend the license if the fingerprint clearance card is determined to be invalid and an applicant who was issued a license fails to submit a new valid fingerprint clearance card within ten days after being notified by the department.
A.R.S. § 32-2153(B)(9) provides:
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: 9. 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.
The evidence of record established that Respondent failed to provide his FCC within 10 days of the Department’s request, and that he committed violence against another person, both of which were in violation of the two above statutes. Both of these violations are grounds to revoke or suspend Respondent’s license.
RECOMMENDED ORDER
Based upon the foregoing,
IT IS RECOMMENDED that the Department grant Respondent’s a provisional real estate salesperson license for a period of two years.
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, August 7, 2024.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Susan Nicolson, Commissioner
Arizona Department of Real Estate
Iain Michael
[email redacted]
Lynette Evans, Esq.
[email redacted]
By: OAH Staff