ALJDEC decisions subject to certification as final

03A-019-REL · Department of Real Estate · 2003-06-20

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 20, 2003 APPEARANCES: Petitioner: Edward M. Jim appeared at the hearing pro se. State: Moira McCarthy, Assistant Attorney General, appeared for the Arizona Department of Real Estate. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ This is a proceeding commenced by Petitioner Edward M. Jim through the Arizona State Department of Real Estate (“Department”), as authorized by Arizona Revised Statutes (“A.R.S.”) Title 32, Chapter 20, Article 3 and Title 41, Chapter 6, Article 10, an appeal of the Department’s denial of his application for Real Estate Salesperson licensure. The hearing convened as scheduled, testimony was given by the Petitioner and evidence was offered. Having heard the testimony of the Petitioner/witness and having read and considered the entire record,[1] Administrative Law Judge (“ALJ”) Gary B. Strickland submits this DECISION AND RECOMMENDED ORDER to the Commissioner of the Department.

FINDINGS OF FACT 1. On February 12, 2003, Edward M. Jim filed an Original Licensure Questionnaire with the State Department of Real Estate whereon Mr. Jim responded in the affirmative to question 1: “Have you EVER been convicted of misdemeanor D.U.I.?”[2] Further, Mr. Jim responded in the affirmative to question 3: “Have you EVER been convicted of any felony or has judgment or sentencing for a felony been deferred?[3] 2. The application was denied by written notice issued by the Department on April 8, 2003.[4] 3. Petitioner is a married man whose wife is a licensed real estate agent. Petitioner himself has been most recently and is currently engaged in the travel business. However, due to the economic downturn following the events of September 11, 2001 and the concomitant harsh effect upon the travel industry, Mr. Jim is seeking an alternative career path. 4. The articulated bases for the Department’s denial of a Real Estate Salesperson’s license to Jim were three convictions that had been reported by the applicant and a possible misrepresentation of the timing of one of the convictions.[5] 5. Petitioner Jim has appealed the denial. 6. On or about March 22, 1998, Petitioner Jim was placed under arrest by the Payson Police Department upon charge of Aggravated Assault on both a police officer and a firefighter.[6] The Police Report reveals that Jim had been a passenger in a vehicle driven by his wife when the vehicle was pulled over for failure to have two operating headlights. Without provocation, Mr. Jim verbally assaulted an officer and attempted physical assault, nevertheless deterred by a spray of pepper into his face. Moreover, Jim reportedly acted in an aggressive manner toward fire department paramedic personnel called to the scene to assist in a clean-up of Jim’s face in an effort to mitigate the affect of the pepper spray. Further, it is reported that Jim assaulted paramedic personnel with spit and verbal harangue.[7] 7. Thereafter, on January 13, 2000, Jim entered a plea of guilty to Count 3 of the charge: Aggravated Assault on a firefighter, a class 6 open-ended offense under A.R.S. §§ 13-1204(A)(9), 13-1203, 13-801, 13-701, 13-702, 12-116.01 and 12-116.02. Stipulations were entered under the plea agreement whereby Jim was placed on 3 years probation; given 30 days incarceration; assigned a minimum of 150 hours community service; prohibited from imbibing alcohol; required to undergo an alcohol screen and undergo treatment; pay $500.00 toward the cost of prosecution; and, pay deferred prosecution fees.[8] 8. Jim was given a suspended imposition of his sentence (“SIS”) and was placed on probation for a period of 3 years. 9. As a condition of probation, Jim was directed to participate in an appropriate drug treatment or education program.[9] In fulfillment of the requirement, he has completed a Level I program of alcohol education and counseling at the Rim Guidance Center in Payson.[10] 10. On or about August 13, 2001, the Court entered an Order terminating Jim’s probation and designated the offense as a misdemeanor. 11. In his “To Whom it May Concern” statement of February 12, 2003 accompanying his application,[11] Jim identified the three convictions on his record with little explanation and no indication of remorse. 12. While on probation for the assault conviction, Jim was arrested by the Flagstaff Police Department upon suspicion of excessive speed and extreme D.U.I. On August 16, 1999, he entered a plea of guilty to a charge of extreme D.U.I., a class 1 misdemeanor under A.R.S. § 28-1382(A).[12] 13. On the extreme D.U.I. plea, Jim was sentenced to 30 days incarceration (20 days suspended upon completion of alcohol screening and treatment) and payment of a fine. 14. It is of note that the extreme D.U.I. conviction occurred while Jim was awaiting sentencing on the aggravated assault charge in Payson. 15. Prior to the more recent convictions, Jim had been convicted on a D.U.I. charge (class-1 misdemeanor) in Fredonia Magistrate Court on October 12, 1986. Judgment was entered by the Court on December 23, 1986 under A.R.S. § 28-692, whereby Jim was required to pay a $600.00 fine and serve a six month probation.[13] 16. Petitioner Jim stipulates to the facts relating to the three convictions as those facts have been set forth in the Department’s NOTICE OF HEARING. 17. The NOTICE OF HEARING issued by the Department on January 7, 2003 cited Petitioner with violation of A.R.S. § 32-2153(B)(7) and § 32- 2153(B)(10).[14] 18. The uncontested evidence demonstrates that the applicant, Petitioner Jim, has been convicted on three misdemeanor charges, each involving consumption of alcohol, within the past 17 years. Two of the convictions fall within the most recent five (5) year period. While testifying, Mr. Jim affirmed to the effect that he has mostly conquered his problem with alcohol consumption. The Administrative Law Judge notes the qualifying language. It is further of note that in his testimony Jim admitted continued, although infrequent, consumption of alcoholic beverages (twice a year). Those are not the kind of assurances that portend freedom from similar occurrences as set forth above. 19. The weight and sufficiency of the evidence preponderates, in fact it is unquestioned, that Petitioner Jim has two alcohol-related convictions on his record in the recent past. To grant a real estate salesperson’s license to him at this time would not be prudent.

CONCLUSIONS OF LAW 1. The Department has authority to deny Petitioner Jim a real estate salespersons license.[15] 2. The sanctions that may be imposed by the Commissioner for application deficiency include revocation of a license previously issued by the Department, or its suspension, or the refusal to grant an initial license or renew an existing license, or any lesser penalty in lieu of or in addition thereto.[16] 3. The authority that the Commissioner possesses to deny an applicant a salespersons license is a discretionary authority.[17] 4. The Commissioner has been authorized by the legislature to grant a conditional license when, within the Commissioner’s discretion, it is deemed prudent.[18] 5. The burden of proof generally at an administrative hearing falls to the party asserting a claim, right or entitlement.[19] Further, the standard of proof is that of the “preponderance of the evidence”.[20] Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “. . . more likely true than not.”[21] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion is more probably correct on the issue(s) in dispute. 6. In this proceeding, Petitioner Jim has the burden of establishing that the Department erred in its determination not to grant Petitioner a salespersons license, that Jim, in fact, is a person of proven good character. 7. The underlying purpose of a Department of Real Estate oversight commission is to protect the public interest.[22] The concerns that the Commissioner has expressed regarding this application, given the pattern of the offenses with which Jim has been charged and convicted, are apparent. 8. The Department has rightfully asserted the findings of the Payson and Flagstaff Courts in these proceedings, as well as evidence of Mr. Jim’s earlier plea to the previous D.U.I. charge. Under the governing statute, a criminal conviction constitutes prima facie evidence of a lack of good character. Petitioner has not rebutted that prima facie evidence. He presented neither witnesses, nor references, nor contradicting evidence, nor did he provide any assurances. He has not met the burden of proof. 9. The Department rightfully gives due consideration to public perception in its consideration of the fitness of applicants for a salesperson’s license. The Department has as its ultimate obligation the protection of the public. In this matter, Mr. Jim simply has not given adequate assurances of good character to warrant his licensing. That may come in time. In fact, Mr. Jim ought to be encouraged to make diligent efforts to maintain sobriety and manifest a developing good character in the days ahead.[23] In doing so, he may achieve his ends.

RECOMMENDED ORDER IT IS RECOMMENDED that the Commissioner of the Department of Real Estate deny Petitioner Jim a Real Estate Salesperson’s License at this time. Done this 20th day of June 2003. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2003, to:

Elaine Richardson, Acting Commissioner Department of Real Estate 2910 North 44th Street, Suite 100 Phoenix, AZ 85018

By ___________________________ ----------------------- [1] The official record consists of that record having been electronically recorded under the authority of A.A.C. R2-19-121(A), the testimony and argument set forth by the parties’ representatives, respectively, along with the exhibits that were offered at the hearing and documentation in the Department’s case file.

[2] See, Hearing Exhibit A.

[3] Id.

[4] See, Hearing Exhibit B.

[5] Id.

[6] See, Hearing Exhibit C.

[7]See, Hearing Exhibit C.

[8] See, Hearing Exhibit D-3.

[9] See, Hearing Exhibit D-5.

[10] See, Hearing Exhibit 1.

[11] See, Hearing Exhibit H.

[12] See, Hearing Exhibit F.

[13] See, Hearing Exhibit G.

[14] A.R.S. § 32-2153 (2002).

B. 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 the provisions of this chapter when it appears that the holder or applicant has:

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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. (Emphasis added.)

[15] A.R.S. ( 32-2153(B).

[16] Id.

[17] See, A.R.S. 32-2153(B) (“The commissioner may . . . deny the issuance of a license . . . .”) [18] See, A.R.S. 32-2153(B) (“The commissioner may . . . issue a provisional license . . . .”)

[19] See Ariz. Admin. Code R2-19-119 (B).

[20] Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (A).

[21] In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). See also, J. Livermore, R. Bartels, & A. Hameroff, LAW OF EVIDENCE ( 301.1(4th ed. 2000) (One party bears the overall burden of persuasion on each fact material to the party’s claims and defenses. Further, the party with the burden of persuasion on a particular fact is required to satisfy the burden of production of enough qualitative evidence sufficient to support a finding of the existence of the fact, following a reasonable person standard.)

[22] A.R.S. ( 32-2102 and A.R.S. Title 32, Chapter 20.

[23] It’s never too late.

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826