ALJDEC decisions subject to certification as final

04F-LI-207-REL · Department of Real Estate · 2004-12-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On December 6, 2004, a hearing was held on the Department’s denial of the Petitioner’s application for a real estate salesperson’s license. Assistant Attorney General Mark Preny represented the Arizona Department of Real Estate (“Department”). Attorney Gary Smith represented Ms. Karen Tiffany White[i] (“Petitioner”). Based upon a review of the record, the undersigned Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT[ii] January 7, 2002 Conviction 1. On or about August 8, 2001, a Complaint was issued in State of Arizona v. Karen Tiffany Tanner aka Tiffany Tanner White, Chandler Justice Court No. CR 01-01173, charging the Petitioner with Theft, a class 3 felony. See, State’s Exhibit D8.

2. The matter was transferred to the Maricopa County Superior Court. On or about November 15, 2001, an Information was filed in State of Arizona v. Karen Tiffany Tanner aka Tiffany Tanner White, Maricopa County Superior Court No. CR2001-096988, charging the Petitioner with Theft, a class 3 felony.[iii] See, State’s Exhibit D7.

3. On or about November 5, 2001, the Petitioner entered a plea of guilty to the charge of Theft, a class 6 undesignated offense, in violation of A.R.S. §§ 13-1801, 13-1802, 13-701, 13-702, 13-702.1, 13-707, 13-801 and 13- 802. See, State’s Exhibit D6.

4. On or about January 7, 2002, the Court entered a Judgment and Sentencing Order, convicting the Petitioner of Theft, a class 6 undesignated felony, in violation of A.R.S. §§ 13-1801, 13-1802, 13-701, 13- 702, 13-702.1, 13-707, 13-801 and 13-802. See, State’s Exhibit D2.

5. The Court suspended imposition of sentence and placed the Petitioner on summary probation under the supervision of the Adult Probation Department for a period of 2 years. See, State’s Exhibit D2. As terms of the probation, the Court ordered the Petitioner to pay a monthly probation fee in the amount of $40.00 per month. See, State’s Exhibits D2 & D4.[iv]

6. On or about August 20, 2003, the Court entered an Order of Discharge from Probation discharging the Petitioner from probation and designating the offense a misdemeanor. See, State’s Exhibit D1.

June 2004 Application

7. On or about June 4, 2004, the Petitioner submitted an application (“Application”) to the Department for a real estate salesperson’s license. See, State’s Exhibit A.

8. Question 2 (Section B) on the Application asked the following question: “In the past 10 years, have you been convicted of any misdemeanorin Arizona or any other state?” See, State’s Exhibit A. The Petitioner answered “Yes” to this question. Id. The Petitioner disclosed the above-referenced misdemeanor conviction.

9. On or about July 29, 2004, the Department sent a letter to the Petitioner. See, State’s Exhibit B. In this letter, the Department informed the Petitioner that her Application had been denied because of the above-referenced misdemeanor Theft conviction. Id. The Petitioner timely filed a Notice of Appeal.

Hearing 10. At hearing, the Petitioner testified that she is embarrassed by her misdemeanor theft conviction. The Petitioner testified that the conviction resulted from an employment relationship with a man named Gil Van Der Drift. The Petitioner testified that Mr. Van Der Drift hired her as his personal secretary. The Petitioner testified that she was responsible for driving, purchasing and selling vehicles for Mr. Van Der Drift. She also ran errands for Mr. Van Der Drift. The Petitioner testified that she handled large sums of money for Mr. Van Der Drift.

11. The Petitioner was single when she started working for Mr. Van Der Drift. The Petitioner testified that Mr. Van Der Drift became upset when he learned that she had become engaged to another man. The Petitioner testified that Mr. Van Der Drift pressed criminal charges against her because he was upset about her engagement.

12. The Petitioner conceded that she was initially charged with felony theft. The Petitioner testified that she accepted a plea agreement on the advice of counsel. The Petitioner testified that she wanted to fight the theft charge in court. However, the Petitioner testified that she accepted the plea agreement because she was eight months pregnant and she had an eleven year old daughter at home. The Petitioner testified that she could not risk being incarcerated when she had children to support.

13. The Petitioner testified that she is a person of good character. The Petitioner testified that she is happily married with three children. The Petitioner further testified that she is actively involved in her church.

14. The Petitioner had never been arrested prior to her arrest for theft. The Petitioner successfully completed the terms of her probation. She has not been arrested since her conviction. She paid restitution for the theft in a related civil action.

15. Mr. Van Der Drift is a Member and authorized agent for Mountain High Greenhouse Construction, LLC (“Mountain High”). See, Petitioner’s Exhibit 5. In March of 2001, Mountain High sued the Petitioner because of the aforementioned theft. Id. Attorney Barry C. Toone represented the Petitioner during her civil case.

16. At hearing, Mr. Toone testified that the theft allegation resulted from an unfortunate misunderstanding between the Petitioner and Mr. Van Der Drift. Mr. Toone testified that Mr. Van Der Drift felt jilted when he learned of the Petitioner’s engagement. Mr. Toone testified that the civil action was settled out of court on very favorable terms for the Petitioner.

17. Mr. Toone has known the Petitioner and her husband for 5 to 6 years. He met them through church. Mr. Toone testified that the Petitioner is “impeccably honest” and “good to the very core.” Mr. Toone testified that he agreed to represent the Petitioner pro bono because he was so outraged by Mr. Van Der Drift’s allegations.

18. Ms. Lynn L. Sperry is the Office Manager and Associate Broker for West USA Realty. See, Petitioner’s Exhibit 9. She has been with West USA Realty for 15 years. At hearing, she testified that she met the Petitioner during an interview in June of 2004. Ms. Sperry testified that she offered a position to the Petitioner as a salesperson for West USA Realty (conditioned upon her successful licensure). See, Petitioner’s Exhibits 8 & 10.

19. Ms. Sperry testified that she is aware of the Petitioner’s prior criminal conviction. However, Ms. Sperry conceded that she has little knowledge of the specific details of the criminal conviction. Ms. Sperry testified that she would serve as a practice monitor for the Petitioner if the Petitioner obtains a provisional real estate salesperson’s license.

20. The Petitioner submitted one positive letter regarding her character and professionalism. See, Petitioner’s Exhibit 7. However, the undersigned Administrative Law Judge can give little weight to this letter because the author did not appear in person to be cross-examined and there is no indication in the letter that the author was aware of the Petitioner’s criminal history.

CONCLUSIONS OF LAW 1. The Petitioner has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary, 1182 (6th ed. 1990).

2. The Commissioner has the discretion to deny the issuance of a real estate salesperson’s license if the Petitioner: (1) has been convicted in a court of competent jurisdiction in Arizona of a crime of theft; (2) has failed to demonstrate that she is a person of honesty, truthfulness and good character, or (3) has violated a state law that involves theft. A.R.S. § 32-2153(B)(2),(7) & (10).

3. On January 7, 2002, the Petitioner was convicted in Arizona of theft, a misdemeanor. Thus, the Commissioner has the discretion to deny the Petitioner’s Application pursuant to A.R.S. § 32-2153(B)(2) & (10).

4. The Petitioner’s criminal behavior in 1999 shows that the Petitioner was not a person of good character at that time. A.R.S. § 32-2153(B)(7). Thus, the Petitioner has the burden of showing that she now has the requisite character to hold a real estate salesperson’s license.

5. The undersigned Administrative Law Judge concludes that the Petitioner has not met her burden for the following reasons: First, the Petitioner did not appear remorseful about her criminal behavior. Rather, she only seemed embarrassed. Second, the Petitioner called only one character witness[v] on her behalf. The undersigned Administrative Law Judge needed to hear from more witnesses (e.g., co-worker, supervisor, probation officer, police officer or clergy) who could testify that the Petitioner has rehabilitated her character and has changed her life for the better. Third, the Petitioner submitted only one character reference letter. Unfortunately, it is not clear from the letter if the author was aware of the Petitioner’s criminal history. Fourth, the Petitioner failed to present any substantive evidence showing that she is an asset to her community (e.g., performing voluntary community service).[vi] The record only shows that she attends church. Simply put, the Petitioner may be a person of outstanding character. Unfortunately, she failed to present sufficient evidence for the undersigned Administrative Law Judge to reach that conclusion.

6. Based on the foregoing, the undersigned Administrative Law Judge concludes that the Department properly denied the Petitioner’s Application pursuant to A.R.S. § 32-2153(B)(2),(7) & (10). RECOMMENDED ORDER Based upon a review of the record in this matter, the undersigned Administrative Law Judge recommends that the Department’s denial of the Petitioner’s Application for a real estate salesperson’s license be upheld. Done this day, December 23, 2004.

______________________________________ Casey J. Newcomb Administrative Law Judge

Original transmitted by mail this ____ day of December, 2004, to:

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

By ___________________________

----------------------- [i] Karen Tiffany Tanner is the Petitioner’s maiden name. Her married name is Karen Tiffany White.

[ii] The parties stipulated to the Facts set forth in the September 8, 2004 Notice of Hearing.

[iii] The alleged theft occurred on October 28, 1999.

[iv] The parties stipulated that the Court ordered the Petitioner to: (1) pay a monthly probation services fee in the amount of $40.00 per month; (2) pay a fine in the amount of $480.00; (3) pay an assessment fee in the amount of $20.00; and (4) pay restitution in the amount of $3,700.00. See, Notice of Hearing (Finding #10). However, it appears that the Court only ordered the Petitioner to pay a monthly probation fee in the amount of $40.00. See, State’s Exhibit D2. In fact, it appears that Judge Penny Willrich crossed out the aforementioned restitution and assessment fee on her January 7, 2002 Judgment and Orders for Restitution, Fines and Fees. See, State’s Exhibit D4. In any event, the Petitioner paid restitution in a related civil action.

[v] Mr. Toone was the Petitioner’s sole character witness. He has known the Petitioner for only five to six years. The undersigned Administrative Law Judge does not consider Ms. Sperry to be a character witness. She has known the Petitioner for only five months. She has not spent a substantial amount of time with the Petitioner. Furthermore, she knew very little about the Petitioner’s criminal conviction.

[vi] The Petitioner submitted a character reference letter from Matt Duran, the Branch Executive for the Grant Woods Branch of the Boys & Girls Clubs. See, Petitioner’s Exhibit 7. Unfortunately, it is not clear from the letter if the Petitioner ever volunteered at the Boys and Girls Clubs.

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