ALJDEC decisions subject to certification as final

08F-LI-214-REL · Department of Real Estate · 2008-03-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 11, 2008

APPEARANCES: William Stokes, Petitioner; Liane Kido, Assistant Attorney General representing the Department of Real Estate; Janet Blair, Department witness; Lacey Koning, observer

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

Petitioner's application for an Arizona real estate license was denied because of his legal history. Petitioner appealed the denial. He appeared at hearing and offered evidence and testimony in support of his application. However, the weight of the evidence established that he does not meet the statutory requirements for holding a real estate license in the State of Arizona. Therefore, it is recommended that this appeal be denied. FINDINGS OF FACT 1. Petitioner William Stokes applied for a real estate license with the Department of Real Estate ("Department") on September 13, 2007. On December 14, 2007, the Department issued Petitioner a notice of action informing him of its intent to deny the application. Petitioner appealed the denial and the matter came to hearing at the Office of Administrative Hearings, an independent agency authorized to conduct hearings in matters arising out of State regulation.

2. At hearing, it was established that the Department denied the application because of the Petitioner's extensive recent legal involvement. He was convicted for Operating (a vehicle) While Impaired by Liquor on March 15, 2002, for Controlled Substance-Possession of Marijuana on May 3, 2002 and August 15, 2002, for Furnishing False ID Information on December 26, 2002, and for Person Under 21-Purchase/Consume/Possess Liquor on December 26, 2002, for Attempted Weapons-Taser-Possession or Sale of and Attempted Felonious Assault on November 18, 2004. Because of this history, the Department concluded that the Petitioner did not have the character to possess an Arizona real estate license. 3. Petitioner argued that he made some bad decisions but he has matured since then. He stated that the State of Michigan has given him a real estate license. He also stated that his most recent conviction was an arranged pleading and his confession would not have been admissible in court anyway because he was interrogated for four hours. He offered into evidence three letters from people who have worked with him on a very important real estate sale. The letters state that he is professional, knowledgeable, and helpful. They also state that he is caring and that he has leadership abilities. 4. The Department argued that Petitioner's repeat offences regarding alcohol show an inability to learn from his mistakes. His conviction for giving an officer a false name when he was arrested shows dishonesty. And his last conviction shows premeditation and lack of character, and it occurred around four years ago, not long enough to show a change of character on his part. 5. The last conviction is the most disturbing. The criminal records show that Petitioner was stopped for a minor vehicle violation and items found in his car included a taser, rubber gloves, a hammer, cable cutters, pliers and lighter fluid, all in a backpack behind the driver's seat. His passenger had numerous warrants out for his arrest. According to the police report, when Petitioner was asked about the items in the backpack, he gave various reasons for his possession of each item, but when he was asked why they were all together in the backpack, he confessed that he and his passenger had been on their way to beat up a gentleman who Petitioner believed had raped his girlfriend. The passenger was going to do the assault as a favor to Petitioner because the passenger's friends had "robbed" Petitioner's friends in a drug deal. The following day, Petitioner and the passenger gave accounts that were consistent with the confession. The intended victim was called. He voluntarily went to the police station and told a similar story in that he had had sex with Petitioner's girlfriend, which he stated was consensual, and, as a result, he had had some problems with Petitioner. Both the alleged intended victim and the Petitioner recounted an incident where the Petitioner had confronted the potential victim, who had apparently "won" the physical altercation, causing embarrassment to the Petitioner. The police in that case suspected a murder for hire situation, but the Petitioner pled guilty to possession of the taser and attempted assault. 6. Considering the fact that three different people, the Petitioner included, offered consistent evidence to corroborate the background and facts surrounding Petitioner's confession that he was on his way to, at a minimum, assault someone, the weight of the evidence has established that this is exactly what had happened, and Petitioner's statements at hearing were untrue. The fact that the incident took place around four years prior to Petitioner's application for the real estate license and the fact that Petitioner is still unable to be honest about what really happened indicate that he does not currently have the character required to possess an Arizona real estate license. While Petitioner did testify as to some work he has done coaching inner-city children in fencing, this was not sufficient to establish that he now has good character in light of the other matters. 7. Petitioner’s character references indicate that he has qualities that will very likely bring him to success someday. However, those strengths are not sufficient to overcome the weight of the evidence presented regarding Petitioner’s legal history and likely lack of truthfulness at hearing. Further, they are not a substitute for the specific requirements of honesty, truthfulness and good character required by the Department for real estate licensing in the State of Arizona. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Commissioner of the Arizona Department of Real Estate pursuant to A.R.S. § 32-2153(A). The hearing was conducted through the Arizona Office of Administrative Hearings, an independent State agency, pursuant to A.R.S. § 41-1092.07. 2. Pursuant to A.R.S. § 32-2153(B)(7), an applicant for an Arizona real estate license must show that he or she is a person of “honesty, truthfulness and good character”. Petitioner’s legal history and testimony at hearing do not support a finding that these qualities reside in the Petitioner. Petitioner’s argument that sufficient time has lapsed to find that he has matured sufficiently to overcome the taint of his legal history is not convincing because little time has passed since his last conviction. His argument that he was actually not guilty of his last convicted offense cannot be entertained in light of the fact that he pled guilty. Further, his statements at hearing in denial of his guilt indicate that he has not become an honest and truthful person because the statements in the police record by other witnesses and the inconsistencies in Petitioner’s statements compel the Administrative Law Judge to conclude that it is more likely that he actually did commit the crime and that he was not truthful in denying this at hearing. Consequently, the weight of the evidence did not establish that Petitioner meets the requirements of A.R.S. § 32- 2153(B)(7). 3. In this case, the Petitioner has not established that he meets the above-stated requirements necessary to hold an Arizona real estate license. Therefore, the Department's determination to deny his application on December 14, 2007 was appropriate, and this appeal should be denied.

RECOMMENDED DECISION Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that this appeal be denied. Done this day, March 31, 2008 OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Dorinda M. Lang Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Department of Real Estate Samuel P. Wercinski 2910 North 44th Street, Suite 100 Phoenix, AZ 85018

By ___________________________ -----------------------

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