ALJDEC decisions subject to certification as final

05F-LI-120-REL · Department of Real Estate · 2005-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 16, 2005. The record closed on April 18, 2005. APPEARANCES: Robert N. Bass, Esq. represented Petitioner Jeffrey Bruning. Assistant Attorney General Mark H. Preny represented the Arizona Department of Real Estate. ADMINISTRATIVE LAW JUDGE: Daniel G. Martin _____________________________________________________________________

Jeffrey Bruning appealed the Arizona Department of Real Estate’s decision to deny his application for a real estate salesperson’s license. Based on the evidence of record, and the written arguments of counsel, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT 1. On October 22, 2004, the Arizona Department of Real Estate (the “Department”) received an application for a real estate salesperson’s license from Petitioner Jeffrey Bruning (“Mr. Bruning”). See Exhibit A. 2. In conjunction with his application, Mr. Bruning completed and submitted to the Department an original license application questionnaire. 3. Question No. 2 on the questionnaire (Section B) asks: “In the past 10 years, have you been convicted of any misdemeanor in Arizona or any other state?” (emphasis in original). 4. Mr. Bruning answered Question No. 2 in the affirmative, and disclosed to the Department that he had twice been convicted for DUI (in 2000 and 2002), and that he also had been convicted in 2004 for Driving on a Suspended License.

5. The Administrative Law Judge addresses the evidence with respect to each of Mr. Bruning’s convictions in turn. DUI (2000 Conviction) 6. On May 26, 2000, Tempe Police Officer R. Fougner stopped Mr. Bruning for suspected DUI. According to the police report (Exhibit C), Officer Fougner observed Mr. Bruning weaving back and forth while operating a Toyota pickup truck on University Drive in Tempe. Officer Fougner also observed Mr. Bruning impinging on a designated bicycle lane and generally driving in an erratic manner. 7. After making the stop, Officer Fougner detected an odor of intoxicants on Mr. Bruning’s breath. Officer Fougner asked Mr. Bruning if he had been drinking, and Mr. Bruning stated that he had. Officer Fougner then performed a horizontal gaze nystagmus test on Mr. Bruning and observed six indicators of impairment. See Exhibit C. 8. Officer Fougner conducted Mr. Bruning through a series of field sobriety tests, the results of which were consistent with intoxication. Officer Fougner then arrested Mr. Bruning and transported him to the Tempe City Jail. See Exhibit C. 9. At the Tempe City Jail, Mr. Bruning agreed to submit to a breath test. That test was positive for blood alcohol at a concentration of .204%. See Exhibit C. 10. The Tempe Police cited Mr. Bruning for DUI in violation of A.R.S. § 28-1381(A)(1), Driving with a BAC of .10% or above in violation of A.R.S. § 28-1381(A)(2), Extreme DUI in violation of A.R.S. § 28-1382(A), and Driving in a Bike Lane in violation of A.R.S. § 28-815(D). See Exhibits C and D1.[1] 11. On July 19, 2000, Mr. Bruning pleaded guilty to DUI, a Class 1 Misdemeanor, in Tempe Municipal Court. See Exhibit D4. The court sentenced Mr.

Bruning to ten days in jail, eight of which would be suspended upon Mr. Bruning’s successful completion of alcohol abuse screening/education and/or treatment. The court further ordered that Mr. Bruning pay a $300.00 fine. The remaining charges were dismissed. See Exhibits D3 and D4. DUI (2002 Conviction) 12. On May 5, 2002, Arizona Department of Public Safety (“DPS”) Officer B. Favela stopped Mr. Bruning after observing him driving at a high rate of speed on State Route 101 and weaving from left to right. Officer Favela noted a smell of alcohol and asked Mr. Bruning if he had been drinking. Mr. Bruning replied that he had been drinking earlier. See Exhibit E. 13. Officer Favela performed a horizontal gaze nystagmus test on Mr. Bruning and observed six indicators of impairment. See Exhibit E. 14. Officer Favela conducted Mr. Bruning through a series of field sobriety tests, the results of which were consistent with intoxication. Officer Favela then arrested Mr. Bruning and transported him to a DPS command post site. See Exhibit E. 15. At the DPS command post, Mr. Bruning refused to submit to a breath test. Officer Favela obtained a warrant to draw blood from Mr. Bruning, the samples of which were submitted to the DPS crime lab for storage analysis. The evidence of record does not reflect whether the samples were tested or, if they were, the results of those tests. 16. DPS cited Mr. Bruning for DUI in violation of A.R.S. § 28- 1381(A)(1), and Driving with a BAC of .08% or above in violation of A.R.S. § 28-1381(A)(2). See Exhibit E. 17. On December 19, 2002, Mr. Bruning pleaded guilty to DUI, a Class Misdemeanor, with one prior conviction, in East Tempe Justice Court. See Exhibit F2. The court sentenced Mr. Bruning to 90 days in jail, all but 30 to be suspended pending successful completion by Mr. Bruning of an alcohol screening, counseling, education and treatment program. The court further ordered that Mr. Bruning pay a $500.00 fine plus jail costs, and that Mr. Bruning use an interlock device on any vehicle that he operated for a period of twelve months after his license was reinstated. The remaining charge was dismissed. See Exhibits F2, F3, F4 and F5.

18. Mr. Bruning participated in 56 hours of intensive group therapy as part of his alcohol counseling; Mr. Bruning also completed a separate 16 hour program. See Exhibit 6. 19. Mr. Bruning served his 30 days in the Maricopa County Jail “tent city”, an experience he described as “awful”, but which also gave him an opportunity to consider the direction in which he was taking his life. 20. The court-ordered interlock device remains on Mr. Bruning’s vehicle, and will remain in place until February 2006. In response to a question as to how the interlock device would impact his ability to practice real estate, Mr. Bruning responded that he would either work in new home sales (no driving required), or take a job with a real estate office and focus on learning office management until the interlock device is removed. Driving On A Suspended License (2004) 21. On November 19, 2003, a DPS officer cited Mr. Bruning for driving on a revoked license in violation of A.R.S. § 28- 3473(B). See Exhibit G5. The officer also cited Mr. Bruning for not having insurance in violation of A.R.S. § 28-4135(A) and for driving over or across a gore area in violation of A.R.S. § 28-644(A)(2). See id. There is no evidence in the record that further explains the nature of the traffic stop or why it was effected. 22. On February 5, 2004, Mr. Bruning pleaded guilty in East Tempe Justice Court to one count of driving on a suspended license, a Class 1 Misdemeanor, in violation of A.R.S. §§ 28-3473(B), 13- 707 and 13-802. See Exhibit G2. The Court ordered that Mr. Bruning serve 48 consecutive hours in the Maricopa County jail. See Exhibit G3. In addition, Mr. Bruning’s driver’s license was suspended for a period of one year (Mr. Bruning’s driving privileges have since been reinstated). The Department’s Denial of Mr. Bruning’s Application 23. After completing its review of Mr. Bruning’s application, including his criminal convictions, the Department concluded that Mr. Bruning did not meet the qualifications for licensure as a real estate salesperson under A.R.S. §§ 32-2123 and

32-2153. The Department so notified Mr. Bruning by letter dated December 20, 2004. See Exhibit B. 24. Mr. Bruning appealed the Department’s decision to deny his application, and this matter was referred for hearing to the Office of Administrative Hearings, an independent state agency. 25. On February 9, 2005, the Department issued a Notice of Hearing, pursuant to which the Department alleged: (i) Mr. Bruning had been convicted twice in Arizona in courts of competent jurisdiction of DUI, a crime of moral turpitude, in violation of A.R.S. § 32-2153(B)(2); and (ii) Mr. Bruning’s actions and convictions demonstrated that he is not a person of good character, in violation of A.R.S. § 32-2153(B)(7). The Department alleged, based on the foregoing, that grounds existed to deny Mr. Bruning’s application. 26. In accordance with the aforementioned Notice of Hearing, the Administrative Law Judge convened the hearing in this matter on March 16, 2005 at 1:30 p.m. 27. The evidence demonstrated that for the past six years, Mr. Bruning has worked for American Valet. During a portion of that time, Mr. Bruning also worked for the Phoenix New Times (the “New Times”) ( see Findings of Fact Nos. 31-32 and 35-36. Mr. Bruning worked part-time for American Valet while he was in college, and took a full time position upon his graduation. Mr. Bruning is currently the manager of American Valet’s operations at the Myst night club (“Myst”) in Scottsdale, Arizona. 28. Mr. Bruning’s duties at American Valet include scheduling, payroll, time sheets, deposits, etc. In the course of an evening, Mr. Bruning may be responsible for up to $5,000.00 in cash receipts. There is no evidence in the record that Mr. Bruning has ever mishandled any such cash receipts. 29. At hearing, Mr. Bruning stated that he wants to take his career in a new direction, and that he has chosen real estate because he believes it is a profession in which he will be able to excel. Mr. Bruning acknowledged that his criminal convictions reflect poorly on his character, but contended that he has turned his life around and that he is presently a person of good character.

30. Mr. Bruning called six witnesses to testify in support of his contention that he is presently a person of good character. Those witnesses were David Haar, Michael Smith, Cory Strawn, Kim Stoegbauer, James Boensch and James Holmes. The Administrative Law Judge addresses each witness’ testimony in turn. David Haar 31. Mr. Haar works as an account executive at Infinity Broadcasting. Mr. Haar first met Mr. Bruning in 1996 or 1997, during their college years at Arizona State University (“ASU”). Mr. Haar and Mr. Bruning subsequently worked together at the New Times; Mr. Bruning was Mr. Haar’s assistant for approximately one year between mid 2003 and mid 2004. 32. Mr. Haar described Mr. Bruning’s position at the New Times as a position of trust. Mr. Haar credibly testified that Mr. Bruning performed his duties professionally and responsibly. Mr. Haar does not believe that Mr. Bruning ever abused alcohol or intoxicants while working at the New Times. 33. Mr. Haar was acquainted with Mr. Bruning at the time of Mr. Bruning’s second DUI conviction and his conviction for driving on a suspended license. Mr. Haar and Mr. Bruning discussed both of those incidents, and Mr. Bruning expressed both remorse and regret for his behavior. 34. According to Mr. Haar, Mr. Bruning has changed significantly since his last conviction, and has become a much more responsible person. Mr. Haar credibly testified that Mr. Bruning has a reputation for being honest, genuine and caring. Mr. Haar would not hesitate to recommend Mr. Bruning as a real estate salesperson. Michael Smith 35. Mr. Smith, a sales manager at the New Times, has known Mr. Bruning since 2000. Mr. Smith came to know Mr. Bruning through mutual friends and by playing on a recreational hockey team with Mr. Bruning. Mr. Smith subsequently recruited Mr. Bruning to work at the New Times. 36. At the New Times, Mr. Bruning served as Mr. Smith’s assistant for approximately one year before becoming Mr. Haar’s assistant. According to Mr. Smith, Mr. Bruning was very professional in the performance of his duties.

37. When Mr. Smith hired Mr. Bruning, he did so with knowledge about Mr. Bruning’s 2000 DUI conviction. Mr. Smith never saw Mr. Bruning under influence of any intoxicants while on the job. 38. Mr. Smith credibly testified that he has seen a lot of growth in Mr. Bruning since his convictions; specifically, a realization by Mr. Bruning that he needed to take responsibility for his actions and make some positive improvements in his life. Mr. Smith described Mr. Bruning as a very genuine and very caring person. Cory Strawn 39. Mr. Strawn, a former Sergeant in the United States Marine Corps, currently works for American Valet. Mr. Strawn serves as a regional manager for accounts in Scottsdale, Arizona. 40. Mr. Strawn met Mr. Bruning in 2001 after Mr. Bruning was transferred to the American Valet operation at the Axis/Radius night club. Mr. Strawn is now Mr. Bruning’s manager. 41. Mr. Strawn credibly testified that he trusts Mr. Bruning “completely” to handle any situations that may arise at his current assignment at Myst. 42. Mr. Strawn described Mr. Bruning’s honesty and trustworthiness as “top notch,” and stated that in the last six months he has observed a higher level of maturity in Mr. Bruning that Mr. Strawn attributes to Mr. Bruning’s recent engagement and his efforts to put himself “on the right track.” 43. Mr. Strawn would not hesitate to use Mr. Bruning’s services as a real estate agent or recommend Mr. Bruning to others. Kim Stoegbauer 44. Ms. Stoegbauer is a licensed real estate salesperson and a part owner of three “Help U Sell” real estate offices. Ms. Stoegbauer has known Mr. Bruning for approximately nine years. 45. Ms. Stoegbauer sold Mr. Bruning his first home in 2003; it was as a result of that process that Mr. Bruning became interested in the real estate field. Since that time, Ms. Stoegbauer has actively encouraged Mr. Bruning to obtain his real estate salesperson’s license.

46. Ms. Stoegbauer described Mr. Bruning as “very honest” and “very motivated”, qualities that she felt would make Mr. Bruning a successful real estate agent. Ms. Stoegbauer stated that Mr. Bruning has a reputation for caring and loyalty. 47. Ms. Stoegbauer credibly testified that Mr. Bruning has matured significantly since his convictions; specifically, that he is “more dedicated to focusing on his relationships and his family and his career and wants to move forward.” 48. Ms. Stoegbauer recommended Mr. Bruning for a real estate salesperson’s license, and would hire him if he received that license. James Boensch 49. Mr. Boensch, a former Major in the United States Air Force, is the father of Mr. Bruning’s fiancé. Mr. Boensch has known Mr. Bruning for approximately two years, and thinks highly of him. 50. The gravamen of Mr. Boensch’s testimony was that Mr. Bruning is deserving of a second chance, and that he will do a “great job” as a real estate salesperson. James Holmes 51. Mr. Holmes works for the Republican National Committee (“RNC”) in Washington, D.C. as the director of the RNC’s rapid response team (a part of the communications team). 52. Mr. Holmes has known Mr. Bruning for many years, but came to know him well during their college years at ASU in the late 90’s. Mr. Holmes and Mr. Bruning were roommates for several of those years. 53. Mr. Holmes is familiar with Mr. Bruning’s convictions, and stated that in conversations with Mr. Bruning, Mr. Bruning had expressed remorse for his actions. 54. Mr. Holmes described Mr. Bruning as “one of the more honest and forthright people [I know]” and a man of “utmost integrity”. 55. Mr. Holmes credibly testified that Mr. Bruning has undergone a lot of changes since his convictions. Among other things, Mr. Holmes stated that Mr. Bruning has become more responsible and has begun to set personal goals for himself. Mr.

Holmes also cited Mr. Bruning’s engagement and his purchase of a home as evidence of Mr. Bruning’s growth. 56. Mr. Holmes stated that he believes, “beyond a shadow of a doubt,” that Mr. Bruning is honest and possesses sufficient good character to merit the issuance of a real estate salesperson’s license. 57. Mr. Holmes would not hesitate to use Mr. Bruning’s services as a realtor or to recommend Mr. Bruning to others. Letters of Recommendation 58. Mr. Bruning offered five letters of recommendation into the record, three of which were written by licensed realtors. See Exhibits 1-5. Most of letters speak to Mr. Bruning’s good character, his integrity, and his reputation for honesty and reliability. (Exhibit 1 speaks favorably of Mr. Bruning but not in any detail.) 59. None of the individuals who provided the above-referenced letters of recommendation appeared to give testimony at hearing. Therefore, the Department was unable to cross-examine any of those persons as to the basis for their opinions. Consequently, although the Administrative Law Judge admitted the letters into evidence, the Administrative Law Judge gave them only modest evidentiary weight in the determination of this matter. 60. Mr. Bruning acknowledged having made serious mistakes in his past, but stated that he has worked through those mistakes and has grown considerably since his convictions. Mr. Bruning asked that the Department look favorably on his application, and expressed willingness to comply with any license conditions that the Department might choose to impose. 61. The Administrative Law Judge, having viewed Mr. Bruning’s demeanor at hearing and having listened to his testimony, finds that Mr. Bruning recognizes the seriousness of the crimes for which he was convicted, and that Mr. Bruning has grown in maturity and responsibility. The Administrative Law Judge further finds, based on Mr. Bruning’s testimony and the testimony of Messrs. Haar, Smith, Strawn and Holmes, and Ms. Stoegbauer, that Mr. Bruning is a person of honesty and integrity who is well

regarded by his peers.[2] For the foregoing reasons, the Administrative Law Judge finds that Mr. Bruning is presently a person of sufficiently good character to warrant the granting of a real estate salesperson’s license. However, in view of the recency of Mr. Bruning’s convictions, the Administrative Law Judge finds that such license should be issued on a provisional basis and subject to terms and conditions as set forth herein. CONCLUSIONS OF LAW 1. In this proceeding, Mr. Bruning bears the burden to prove, by a preponderance of the evidence, that the Department’s denial of his application for a real estate salesperson’s license should be reversed. See A.R.S. § 41-1092.07(G) and Arizona Administrative Code R2-19-119. 2. 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). 3. In this case, the Department charged Mr. Bruning with violations of A.R.S. § 32-2153(B)(2) and (B)(7). 4. At hearing and in his closing memoranda, Mr. Bruning urged that DUI is not a crime of moral turpitude and therefore cannot support an alleged violation of A.R.S. § 32-2153(B)(2). The Administrative Law Judge disagrees. 5. In Rothweiler v. Superior Court, 100 Ariz. 37, 410 P.2d 479 (1966), the Arizona Supreme Court addressed the question of whether a defendant charged with DUI was entitled to a jury trial. In answering this question in the affirmative, the Court established a three part test that included an analysis of the “moral quality” of the conduct in issue. Applying this test to DUI, the Court concluded: It must be accepted that under present-day conditions driving an automobile while under the influence of intoxicating liquor is an offense of a serious nature. The offense is a matter of statewide concern as it is a frequent infringement of a state statute enacted within the police power of the state, and its moral quality has become offensive to the public as demonstrated by the severity of the punishment. Such conduct is

repugnant to the community as well as the law because of the potential harm and evil that may result from such practice.

Id. at 44, 410 P.2d at 484-85.

6. In Benitez v. Superior Court, 198 Ariz. 90; 7 P.3d 99 (2000), the Arizona Supreme Court defined “crimes of moral turpitude” as crimes involving “behavior which is ‘depraved and inherently base,’ or actions which ‘adversely reflect on one's honesty, integrity, or personal values.’” Id. at 95, 7 P.3d at 104 (quoting O’Neill v. Mangum, 103 Ariz. 484, 485, 445 P.2d 843, 844 (1968) and State ex rel. Dean v. Dolny, 161 Ariz. 297, 300 n.3, 778 P.2d 1193, 1196 n.3 (1989)). 7. Applying the foregoing test to the Court’s characterization of DUI in Rothweiler, the Administrative Law Judge concludes that DUI is a crime of moral turpitude under Arizona law because, for the reasons stated in Rothweiler (i.e., those pertaining to the offensive moral quality of DUI), it must be considered an act that “adversely reflect[s] on one's honesty, integrity, or personal values.” 8. Several post-Rothweiler decisions corroborate the foregoing conclusion. For example, in Benitez, a case involving the question of whether a charge of driving on a license that had been suspended based on an earlier DUI conviction was jury-eligible, the Supreme Court reasoned: “Even though driving on a suspended license for DUI does not reach the level of moral deficiency required for jury trial, the court of appeals reasoned that because DUI is jury eligible, other DUI- based offenses should also be eligible. But moral turpitude, inherent in DUI, is absent from the offense before us. The moral quality of Benitez' original drunk-driving conviction does not extend to a subsequent violation of the license suspension penalty.” See 198 Ariz. at 95-96, 7 P.3d at 104-05 (emphasis added). Further, in Raye v. Jones, 206 Ariz. 189, 76 P.3d 863 (App. 2003), a case involving the question of whether a charge of underage drinking and driving was jury- eligible, the Court of Appeals concluded: “Because a person may commit the offense of underage drinking and driving without being impaired, the degree of moral turpitude associated with DUI is not present.” See 206 Ariz. at 192, 76 P.3d at 866 (emphasis added).

9. In support of his argument that DUI is not a crime of moral turpitude, Mr. Bruning relies heavily on In re Fernando Alfonso Torres- Varela, 23 I&N Dec. 78 (BIA 2001), a decision by the Federal Board of Immigration Appeals (the “Board”). The Board held in Torres-Varela that the offense of aggravated DUI with two or more prior DUI convictions is not a crime of moral turpitude under Arizona law. Mr. Bruning reasons that if the offense of aggravated DUI with two or more prior DUI convictions is not a crime of moral turpitude under Arizona law, then simple DUI is not a crime of moral turpitude under Arizona law. For the reasons set forth below, the Administrative Law Judge disagrees. 10. Although the Board asserts in Torres-Varela that its decision is “under Arizona law” (a theme echoed by Mr. Bruning), close analysis reveals that the Board reached its decision based solely on the application of federal law. See 23 I&N Dec. at 82-83 (“The meaning of the phrase ‘crime involving moral turpitude’ is a matter of federal law, and any analysis of whether a crime involves moral turpitude necessarily entails agency and judicial construction”). With one exception (not directly relevant to its analysis), the Board does not cite any Arizona case law in its decision; all of the cases on which it relies are federal cases. Further, at no point in its analysis does the Board discuss Rothweiler, nor does the Board address any of the other Arizona case law that defines moral turpitude. In view of the foregoing, the Administrative Law Judge concludes that Torres- Varela is not persuasive authority and that Mr. Bruning’s reliance on that decision is misplaced. 11. Mr. Bruning contends that Rothweiler is not a valid precedent because Rothweiler addressed the question of whether a DUI charge gives rise to a right to a jury trial, “an issue far removed from the question of whether an administrative agency may deny a license or discipline a licensee on the theory that D.U.I. is a crime of moral turpitude.” Reply Memorandum, at page 2. The Administrative Law Judge disagrees. Although it is true, as Mr. Bruning states, that the issue presented for review in Rothweiler was whether a DUI charge was jury eligible, the analysis employed by the Court is nonetheless relevant to the instant matter because it focuses directly on the

moral quality of DUI, which in turn informs the question of whether DUI can be considered a crime of moral turpitude. 12. Mr. Bruning further argues that Rothweiler is not a valid precedent because its “moral quality” analysis was overturned by the Arizona Supreme Court’s decision in Derendal v. Griffith, 209 Ariz. 416, 104 P.3d 147 (2005). The Administrative Law Judge disagrees. It is true, as Mr. Bruning contends, that the Arizona Supreme Court held in Derendal that the Rothweiler “moral quality” analysis is no longer an appropriate test by which to determine when a misdemeanor is jury- eligible. See id. at 424, 104 P.3d at 155. However, nothing in Derendal can be construed as overruling Rothweiler’s specific conclusion that the crime of DUI has a moral quality that is offensive to the public, or as suggesting that DUI should not be considered a crime of moral turpitude. 13. Mr. Bruning urges that to allow the Department to rely on DUI convictions as a basis on which to deny license applications would improperly invade the province of the Legislature, because the Legislature has not specifically listed DUI as a ground for license denial. See Reply Memorandum, at page 4. The Administrative Law Judge finds no merit to this argument. 14. Mr. Bruning’s argument fails in the first instance because it proceeds from the incorrect premise that DUI is not a crime of moral turpitude; DUI is such a crime, and therefore falls squarely within the definition of the crimes (as set forth by the Legislature) for which a real estate license application can be denied. Further, Mr. Bruning’s argument fails because it is contrary to the language of the statute. In drafting A.R.S. § 32-2153(B)(2), the Legislature did not endeavor to list all of the specific crimes for which conviction could result in license denial. To the contrary, the Legislature granted substantial discretion to the Department by including within the scope of A.R.S. § 32-2153(B)(2) not only crimes of moral turpitude, but also “any other like offense.” Given the broad scope of this language, the Administrative Law Judge must reject the narrow construction of the statute advanced by Mr. Bruning. 15. Several of Mr. Bruning’s other arguments merit brief comment.

16. In his reply memorandum, Mr. Bruning’s attorney states: “In the more than 20 years that counsel undersigned has been handling Department matters, first as an A.L.J. and more recently as an attorney representing licensees and applicants, he has never seen the Department take the position that the Rothweiler case provides the Department with grounds to deny or discipline a license based upon the theory that D.U.I. is a crime of moral turpitude.” Reply Memorandum, at page 2. The Administrative Law Judge concludes that this argument cannot properly be considered, as Mr. Bruning’s attorney was not a witness at hearing, and any facts as to what he has or has not seen in his 20 years of experience are not a part of the record.[3] 17. Mr. Bruning’s attorney makes the further argument that “[c]ounsel is aware of no other administrative agency with jurisdiction over professional licenses which has found that the Rothweiler case creates grounds for administrative action as a crime of moral turpitude. If a D.U.I. is not a crime of moral turpitude if you are a nurse, or an accountant, or a doctor or a lawyer, then it is not a crime of moral turpitude for real estate licensees.” Reply Memorandum, at page 4. For the same reasons as those stated above, the Administrative Law Judge concludes that such argument cannot properly be considered because there is no evidence in the record as to what other boards or agencies may or may not consider to be a crime of moral turpitude. 18. Having concluded that DUI is a crime of moral turpitude and that a DUI conviction is therefore a proper ground for denial of a real estate license application under A.R.S. § 32-2153(B)(2), the Administrative Law Judge turns to the specific facts presented by this case. 19. As the evidence demonstrated, Mr. Bruning was convicted twice for DUI, once in 2000 and once in 2002. Thus, grounds exist to deny Mr. Bruning’s application for a real estate salesperson’s license under A.R.S. § 32-2153(B)(2).

20. The Administrative Law Judge further concludes that Mr. Bruning’s convictions, and the conduct underlying those convictions, reflect poorly on Mr. Bruning’s character, and that grounds therefore exist to deny Mr. Bruning’s application for a real estate salesperson’s license under A.R.S. § 32-2153(B)(7). 21. Although grounds exist to deny Mr. Bruning’s application, the Administrative Law Judge concludes that the Commissioner should nonetheless exercise her discretion favorably towards Mr. Bruning and grant his application on a provisional basis. 22. The Administrative Law Judge bases the foregoing conclusion on the evidence presented at hearing as to Mr. Bruning’s good character and reputation, which the Administrative Law Judge found credible, and the further evidence that Mr. Bruning has grown and matured since his last conviction, has demonstrated remorse for his actions, and appears to have learned from his experience such that any repeat offense is unlikely to occur. RECOMMENDED ORDER The Administrative Law Judge recommends that the Commissioner enter the following Order: 1. Mr. Bruning’s application for a real estate salesperson’s license is hereby approved provided he satisfies all of the terms, conditions and restrictions set forth herein. 2. The Department shall issue Mr. Bruning a two (2) year provisional real estate salesperson’s license upon entry of this Order. 3. Except as otherwise provided herein, only periods of active licensure shall accrue to the provisional license period. 4. During the provisional license period, Mr. Bruning shall not be a manager, partner, owner, co-owner or officer of any entity licensed pursuant to Title 32, Chapter 20, Arizona Revised Statutes. 5. During the provisional license period, Mr. Bruning shall not act as a Branch Manager.

6. During the provisional license period, Mr. Bruning shall be licensed under the supervision of a practice monitor, subject to the following terms and conditions: a. Prior to or concurrent with hiring and submitting any license change form and fee to the Department, or if Mr. Bruning is actively licensed within ten (10) days of the entry of this Order, whichever applies, any designated broker employing Mr. Bruning shall submit a signed statement to the Department’s Compliance Officer (“Compliance Officer”), together with the forms and fees for Mr. Bruning to be employed by such broker, if required. The signed statement shall certify that the designated broker has received and read a copy of this Order, agrees to act as Mr. Bruning’s practice monitor or appoints an associate broker who qualifies under the terms hereof, and agrees to comply with the following requirements: b. The proposed practice monitor shall not have been a party to any prior disciplinary action taken by the Department. c. The proposed practice monitor shall not be a partner of or a co- owner with Mr. Bruning in any business enterprise, and shall not be a relative of or have any other relationship with Mr. Bruning, which may create, or create the appearance of, a conflict of interest or bias. d. An associate broker may act as a practice monitor only if the associate broker is employed at the same location as Mr. Bruning, and has been appointed by the designated broker with full written authority pursuant to A.R.S. §§ 32-2151.01(G) and 32-2127. An associate broker appointed to act as a practice monitor shall also sign a statement certifying that the associate broker has received and read a copy of this Order, agrees to act as Mr. Bruning’s practice monitor, and agrees to comply with the requirements set forth herein.

e. The proposed designated broker or associate broker who will act as Mr. Bruning’s practice monitor is subject to review and written approval by the Compliance Officer. The written approval may be withdrawn in the sole discretion of the Compliance Officer at any time upon written notice from the Compliance Officer to Mr. Bruning and the practice monitor. f. The practice monitor shall submit quarterly written reports to the Compliance Officer, which attest to Mr. Bruning’s workload, as well as the quality of his services and client relationships. g. The practice monitor shall immediately submit a written report to the Compliance Officer if the practice monitor becomes aware of any behavior or conduct in which Mr. Bruning has engaged that violates real estate statutes and rules. h. If the practice monitor is an associate broker, the designated broker shall sign and date all reports required pursuant to this Order, noting that the designated broker has accepted and approved the associate broker’s report. i. No practice monitor shall be required if Mr. Bruning places his provisional license on inactive status, or allows the license to expire; however, his license may not be activated until his new broker complies with the terms hereof. j. In the event Mr. Bruning changes employment, he shall immediately notify the Compliance Officer and obtain a new practice monitor who qualifies under the terms and conditions hereof. The new practice monitor must qualify and be approved by the Compliance Officer prior to Mr. Bruning’s hire by the new employing broker. k. In the event Mr. Bruning’s practice monitor is no longer eligible to act as such, or ceases to perform the duties required under the terms of this Order, or there is a new designated broker for Mr. Bruning’s

existing employer, Mr. Bruning, his practice monitor and/or his designated broker shall immediately notify the Compliance Officer. Unless Mr. Bruning obtains a new practice monitor who qualifies and is approved under the terms and conditions hereof, termination of Mr. Bruning’s employment shall be required within seventy-two (72) hours of the time Mr. Bruning loses the practice monitor. l. In the event Mr. Bruning’s license becomes inactive or Mr. Bruning fails to obtain a new practice monitor, he shall immediately cease and desist from engaging in any activity authorized by Title 32, Chapter 20, Arizona Revised Statutes, and shall notify the Compliance Officer that his license is inactive. Mr. Bruning shall obtain a new practice monitor prior to reactivating the license. m. In the event Mr. Bruning discontinues active employment as a real estate licensee in the State of Arizona, he shall immediately notify the Compliance Officer and his practice monitor, who shall submit the proper form to the Department to place Mr. Bruning’s license on inactive status. n. The practice monitor requirement shall be stayed during periods of inactive licensure or expiration of the license. 7. If the Commissioner determines that Mr. Bruning has failed to comply with any of the terms of this Order, or is convicted of any Class 1 misdemeanor or any felony, the Commissioner may summarily suspend Mr. Bruning’s real estate license and/or institute any further disciplinary proceedings, as the Commissioner deems appropriate. Mr. Bruning shall have the right to appeal such summary suspension pursuant to A.R.S. § 41-1092 et seq.

Done this day, May 10, 2005.

______________________________________ Daniel G. Martin Administrative Law Judge

Original transmitted by mail this ____ day of May, 2005, to:

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

By ___________________________ ----------------------- [1] At hearing, the Administrative Law Judge admitted Exhibit D1 (a traffic ticket and complaint) over Mr. Bruning’s objection (hearsay). The Administrative Law Judge agrees that the ticket is hearsay; however, the Administrative Law Judge finds that the ticket was properly admitted based on the following: (1) the ticket contains no inherent indicia of unreliability; (2) Mr. Bruning did not dispute his arrest or citation; and (3) there is no evidence in the record to suggest that the contents of the ticket are inaccurate. For these same reasons, the Administrative Law Judge admitted (over objection) and considered Exhibits E, F6 and G5.

[2] The Administrative Law Judge has discounted the testimony of Mr. Boensch, who, although a credible witness, could only attest generally to Mr. Bruning’s good character. [3] Even assuming arguendo that Mr. Bruning’s counsel’s argument could be considered, it is not persuasive, as Mr. Bruning cites no authority to support the proposition that because the Department has not in the past taken the position that DUI is a crime of moral turpitude, it is now barred from doing so.

-----------------------

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