ALJDEC decisions subject to certification as final

08F-LI-227-REL · Department of Real Estate · 2008-03-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 18, 2007 at 9:00 a.m. APPEARANCES: Petitioner April Rivera appeared on her own behalf; the Arizona Department of Real Estate appeared through Liane C. Kido, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT The Application On May 4, 2007, the Department of Real Estate (“the Department”) received Petitioner April Rivera’s application to the Department to be licensed as a real estate salesperson, in which she answered “yes” to the question, “In the past 10 years, have you been convicted of any misdemeanor in Arizona or any other State?” Mrs. Rivera also answered “yes” to the question on the application, “Are you currently incarcerated, paroled, or on probation because of any conviction.” Mrs. Rivera also attached to the application documents relating to her criminal conviction history, which are discussed below, and letters of reference from Jeff Evans, the designated broker at Summit Realty, Inc. in Patagonia, Arizona, Lynnette Quiroga, who did volunteer work at her church with Mrs. Rivera and allowed her to care for her young son, Patricia L. Mellor, who has known Mrs. Rivera for eight years and has worked with her at the Stage Stop Motel, and Gary Retherford, of Century 21 Catalina Realty in Patagonia. All attested to Mrs. Rivera’s work ethic, considerateness, and commitment to the community. On January 8, 2008, the Department informed Mrs. Rivera via certified mail that it had concluded, based on her application, that her 1999 conviction for assault, 2000 conviction for issuing a bad check, 2002 conviction for cruelty to animals, 2002 judgment in favor of Bank of America for $2,680 plus interest, 2004 conviction for disorderly conduct, and 2004 convictions for driving while her license was suspended and for driving under the influence (“DUI”) prevented her from meeting the qualifications for licensure under A.R.S. § 32-2153(B)(7), (9), and (10). Therefore, the Department notified Mrs. Rivera that it intended to deny her license application. On January 28, 2008, the Department received Mrs. Rivera’s request for hearing. The Department referred the matter to the Office of Administrative Hearings and, on February 12, 2008 issued a Notice of Hearing, which set forth the details of the misdemeanor convictions and set an administrative hearing on March 18, 2008 at 1:30 p.m. A hearing was held on March 18, 2008. Mrs. Rivera testified on her own behalf, presented the testimony of Eva Wright, and had admitted into evidence seven exhibits. The Department presented the testimony of Janet Blair, its Assistant Commissioner over Licensing, Professional Education, and Auditing and had admitted into evidence nine exhibits, which mostly consisted of the court and police documents that Mrs. Rivera had provided that related to her criminal history. Hearing Evidence Mrs. Rivera did not dispute the facts of his convictions set forth on the Department’s Notice of Hearing and summarized by its attorney at the hearing. However, she did dispute the circumstances leading to her convictions and offered evidence of rehabilitation. The February 20, 1999 Assault On February 20, 1999, Tucson Police Department (“TPD”) officers responded to a noise complaint at a Tucson apartment complex. Police officers found Mrs. Rivera (who at that time was April Boeckner) with David Lange. Three TPD officers described Mrs. Rivera as uncooperative, verbally abusive, and combative: she slammed the apartment’s door on one officer’s back; after she was told she was under arrest, she continued to struggle; and, after she was handcuffed, she “started to run down” the stairs, while the officer behind her was holding the handcuffs. The police described Mrs. Rivera and Mr. Lange as “highly intoxicated.” Mrs. Rivera was charged with resisting arrest and, on July 6, 1999 pled guilty to assault in Tucson City Court. The resisting arrest charge was dismissed. She was sentenced to 12 months’ unsupervised probation and a fine of $150. Mrs. Rivera disputed at the hearing that she had intentionally slammed the door on the TPD officer or ran down the stairs. She claimed that she did not know that the officer’s foot was in the door when she closed it. She denied running down the stairs and testified that she just walked down the stairs “like always” but the officer told her to slow down. Mrs. Rivera completed her sentence for the assault on the police officer on May 31, 2001. The February 27, 1999 Bad Check Arrest On February 27, 1999, Mrs. Rivera was arrested for issuing a bad check at the Sears Park Mall in Tucson, Arizona. The bad check case was prosecuted in Tucson Justice Court, Case No. CR99- 912263. On June 28, 1999, a warrant was issued for Mrs. Rivera’s arrest. On July 13, 1999, Mrs. Rivera pled guilty to the offense. She paid a fine of $45. On December 15, 2000, the warrant was quashed and the case was terminated on December 27, 2000. Mrs. Rivera testified at the hearing that Sears’ policy is to refer all checks returned for insufficient funds for criminal prosecution. She had admitted into evidence a copy of her check register, which showed a balance of $115.50 in her account when she wrote check no. 2014 to Sears for $87.15. She testified that she did not know that the check would bounce when she wrote it. The November 3, 2001 Citation for Cruelty to an Animal On or about November 3, 2001, Mrs. Rivera was cited for cruelty to an animal and being in a park after hours. On or about August 14, 2002, Mrs. Rivera pled guilty to animal cruelty in Tucson City Court, Case No. CR11077715. Mrs. Rivera was sentenced to a fine of $2,500 with $2,400 suspended, 180 days of jail time with 170 days suspended and credit for 2 days served, and 36 months of probation, during which she was ordered not to own any animals. The charge of being in the park after hours was dismissed. At the time of hearing, Mrs. Rivera had completed her sentence in Tucson City Court, Case No. CR11077715. The June 20, 2003 Bank of America Civil Judgment On February 12, 2003, Bank of America filed a civil complaint against Mrs. Rivera in Pima County Justice Court, Case No. 03-002931. The complaint alleged that Mrs. Rivera breached her account agreement, leaving a balance of $2,680.56. On June 20, 2003, the Pima County Justice Court entered a default judgment against Mrs. Rivera in Case No. 03-002931 for $2,680.56, plus 10% interest from August 28, 2002 and court costs of $84.00. Mrs. Rivera testified at the hearing that she had been unable to pay the Bank of America judgment. Although she had been employed, she had been unable to “keep a roof over her head” and satisfy the judgment. The January 13, 2004 Conviction for Disorderly Conduct On September 17, 2003, Mrs. Rivera, along with Richard Rivera, whom she later married, was arrested and charged with aggravated assault by the Patagonia Marshal’s office for a fight which occurred at the Stage Stop Motel, a local bar. According to the police report, witnesses told police that Mr. and Mrs. Rivera had instigated the fight and that Mrs. Rivera had hit one the other participants in the fight with a pool cue. Police reported seeing a pool cue broken into three pieces at the scene and that Mrs. Rivera became belligerent when they arrested Mr. Rivera. Police noted that Mrs. Rivera “had a large bump on the back of her head” and transported her to the hospital for treatment. The report noted her and Mr. Rivera’s subsequent behaviors: As the situation deescalated, [Mrs. Rivera] kept trying to beat her head and body against the door and window of Deputy Matthews patrol unit. She had to be called down and warned at least 5-6 times. She would go from fits of screaming to crying hysterically. She had a strong odor of alcohol on her breath and she told EMT Hill she just had three drinks.

[Mr. Rivera] on the other hand was constantly threatening the safety of the victims, saying, “I’m going to get you motherfuckers”, and “I will get you back my way.” He told Marshal Barth in the presence of Deputy Schenek and I that we were wrong and that he will handle this his way when he gets out of jail. He made repeated statements in regards to the victims and their inability to protect themselves from him.

[Mrs. Rivera] was placed into the ambulance after Paramedic Pete Daniels evaluated her and after I had been advised by one of the witnesses that she had been thrown against the small shelf near the pool table and when she hit the floor she just sat there for a few minutes dazed and confused. I found out this information while talking to one of the female witnesses in the bar. It was determined to err on the side of patient safety.

Mrs. Rivera testified at the hearing that the fight had started when a man at the bar “made a derogatory comment” to her. Although she had ignored the comment, Mr. Rivera “did ask them not to speak” to her in that way. After she picked up their drinks at the bar, she could not immediately locate Mr. Rivera until she looked back at the pool table and the following occurred: This is when I saw that Richard was being held down on the ground by three men. At this point I looked for the smallest of the three and pried him away from Richard. I held him at bay with a chair until he pushed me into the pool table; whereby my head hit the change slot and I was knocked unconscious. When I came to I immediately located Richard again and was trying to leave the bar with him. It was at this point that the police arrived on the scene.

On October 2, 2004, in Case No. 200-0144, Santa Cruz Justice Court, Nogales, Arizona, a complaint was issued charging Mrs. Rivera with felony aggravated assault with a deadly weapon. On January 13, 2004, Mrs. Rivera entered into a plea agreement in Case No. 200-0144 whereby she pled guilty to disorderly conduct, a misdemeanor. On January 21, 2004, Mrs. Rivera was sentenced to three days’ incarceration, 30 hours’ community service, and payment of a $560 fine. On May 6, 2004, Mrs. Rivera was ordered, in addition to her original sentence, to pay the state’s attorney’s fees in the amount of $305.50. On August 27, 2007, Mrs. Rivera entered a not guilty plea for failure to appear. A hearing was set on September 17, 2004. Mrs. Rivera testified that she failed to appear because her husband Richard had been involved in a vehicle-pedestrian accident and had to be air-lifted to St. Joseph’s Hospital in Phoenix. She was in Phoenix, at his bedside, when she had been ordered to appear in Case No. 200-0144. On October 13, 2004, Mrs. Rivera agreed to plead guilty to failure to appear and was sentenced to the Santa Cruz County Jail for time served and ordered to appear before a justice of the peace within 24 hours of her release. Mrs. Rivera completed the sentences imposed in Santa Cruz County Justice Court Case No. 200-0144 on June 28, 2007. The November 14, 2003 DUI On November 14, 2003, Mrs. Rivera was operating a motor vehicle, with Mr. Rivera as passenger, when she crossed over the median, hit a tree, and attempted to drive away. TPD officers stopped her, asked her to exit the vehicle, and noted that she was swaying. After Mrs. Rivera failed voluntary field sobriety tests administered by the TPD officers, she was arrested for DUI. Mrs. Rivera refused to submit to a breathalyzer test or blood draw at the TPD station. After TPD officers obtained a warrant for a blood draw, Mrs. Rivera still refused to submit. After two failed attempts by the TPD phlebotomist, she was transported to Kino Community Hospital, where blood was successfully drawn. Subsequent analysis of Mrs. Rivera’s blood showed a blood alcohol level of 0.124% Mrs. Rivera was subsequently charged in Pima County Justice Court Case No. TR03-053133 with DUI, driving on a suspended license, and failure to control speed to avoid an accident. Mrs. Rivera had admitted into evidence a copy of her driver’s license, which showed that it had been issued on April 30, 2003 and would expire on August 12, 2042. On September 2, 2004, in Pima County Justice Court Case No. TR03-053133, Mrs. Rivera pled guilty to DUI and the other charges were dismissed. She was sentenced to 12 months’ unsupervised probation, committed to the Pima County Jail for 10 days, with 9 days suspended, fined $270, ordered to enroll in a MADD Victim Impact Panel by September 9, 2004, and ordered to complete an alcohol evaluation and alcohol education and treatment. She was ordered to report to COPE Behavioral Services for alcohol evaluation. On January 11, 2005, Myra Morales of COPE Behavioral Services wrote a letter to Mrs. Rivera, informing her that she had not completed her DUI treatment, which had been ordered by the court. On April 8, 2005, COPE reported Mrs. Rivera’s failure to complete her alcohol awareness education as a probation violation to the Pima County Justice Court. On May 18, 2005, Pima County Justice Court issued a warrant for Mrs. Rivera’s arrest. On that same date, Mrs. Rivera was advised to appear at the court to obtain a date and time to see a judge for consideration of the warrant. Mrs. Rivera testified that she first learned that a warrant had been issued for her arrest when she was involved in a car accident and the investigating officer informed her of an outstanding warrant. On June 7, 2005, Mrs. Rivera appeared in Pima County Justice Court and filed a motion to quash the warrant. On June 7, 2005, the Pima County Justice Court ordered Mrs. Rivera to complete her alcohol education by September 30, 2005. On June 8, 2005, the Pima County Justice Court quashed the warrant for Mrs. Rivera’s arrest. Mrs. Rivera completed her sentence in Pima County Justice Court Case No. TR03-053133 on November 20, 2005. The Shoplifting Conviction Mrs. Rivera testified that she had been arrested for shoplifting in late 2004. She did not go to court until mid-2007. Mrs. Rivera testified that, at the times when she submitted her application for licensure and the hearing, she was serving her term of 36 months of unsupervised probation for the shoplifting violation. Mrs. Rivera testified that she had disclosed all of her convictions, including the 2007 shoplifting conviction, to the Department on her application for licensure. She was not trying to hide anything. Unfortunately, she did not bring to the hearing her copies of the documents submitted with her license application. Ms. Blair testified that Mrs. Rivera had not disclosed the 2007 shoplifting conviction on the application for licensure. Evidence of Rehabilitation Mrs. Rivera testified that she stopped drinking for while and started a job at a real estate agency in Patagonia. She no longer drinks to excess. Mrs. Rivera testified that she went to real estate school and passed the real estate licensure examination not once but twice, due to the lapse of time between the completion of the test and submission of the license application to the Department. She enjoys working in the profession of real estate sales. She would like to be licensed so she can contribute to the community, especially by helping first-time homebuyers. Mrs. Rivera testified that she is active in the community of Patagonia. She is the secretary of the Amigos Family Health Center Support Group. Amigos Family Health Center is a health clinic that serves the Patagonia community, which has a population of about 1,000 persons. The Support Group takes care of landscaping on the grounds of the clinic and does projects to promote public health and well-being in Patagonia. Mrs. Rivera testified that she continues to try to be a better person. She has a great relationship with the Patagonia Town Marshal and the police. She volunteers with emergency medical technicians and is completing her emergency medical technician training. Mrs. Rivera testified that her husband Richard was incarcerated at the Arizona State Prison Complex at the time of hearing, with an anticipated release date of November 2012. He is teaching classes in horticulture in prison. Mrs. Rivera is more involved in Mr. Rivera’s daughter’s life and visits her husband in prison when she can. Mrs. Rivera had admitted into evidence a letter from Jeff Evans, the Designated Broker of Summit Realty, Inc., in relevant part as follows: This letter is in reference to . . . an individual whom I would like to join our firm, April Rivera.

Mrs. Rivera has worked in our office as the Office Manager for the last year. Her work and her work ethic have been more than acceptable. She is extremely knowledgeable about real estate rules and regulations. She has done an excellent job managing our records and business accounts.

I am aware of instances in her past, but I believe her immaturity at that time and not her present attitude, behavior and ethics. I ask that you rule on this matter favorably. As the Designated Broker of this firm, I am confident that Mrs. Rivera will perform the duties and be up to the standards of the profession.

Mrs. Wright testified that Mrs. Rivera had fully disclosed her “turbulent past” when she applied to work at Summit Realty, Inc. in Patagonia. Mr. Evans would have been present to testify but he had recently been hospitalized. Mrs. Wright testified that she had known Mrs. Rivera for more than a year. Mrs. Wright described Mrs. Rivera as “bright and honest.” Mrs. Rivera did a good job of taking care of things in the office. She was “trying very hard to better herself.” CONCLUSIONS OF LAW Mrs. Rivera bears the burden of proof and must establish that she meets statutory qualifications for a real estate salesperson’s license by a preponderance of the evidence.[1] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[2] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[3] It is not clear whether Mrs. Rivera disclosed the 2007 shoplifting conviction on her application. But, if she did not, the failure was inadvertent. She did disclose that she was still on probation when she submitted her application for licensure, even though other evidence shows she had completed the sentences for all the convictions that were included in the Department’s Notice of Hearing. Mrs. Rivera does not dispute her convictions. Mrs. Rivera admitted commission of criminal acts when she pled guilty to assault in Tucson City Court on July 6, 1999, when she pled guilty to writing a bad check in Tucson Justice Court on July 13, 1999, when she pled guilty to animal cruelty in Tucson City Court on August 14, 2002, when she pled guilty to disorderly conduct in Santa Cruz Justice Court on January 13, 2004, and when she pled guilty to DUI in Pima County Justice Court on September 2, 2004. Cause therefore exists under A.R.S. § 32-2153(B)(10)[4] for the Department to deny Mrs. Rivera’s application for licensure. Mrs. Rivera does not dispute that she failed to appear for a proceeding in Santa Cruz Justice Court Case No. 200-0144 and that she failed to comply with the terms of her sentence in Pima County Justice Court Case No. TR-03- 053133. Cause therefore exists under A.R.S. § 32-2153(B)(9)[5] for the Department to deny Mrs. Rivera’s license application. A person who has successfully completed her sentences may not be disqualified from employment by the state or any of its agencies.[6] But such a person may be denied employment or a certificate to engage in an occupation “by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or occupation for which the . . . certificate is sought.”[7] A license applicant therefore may be required to disclose the fact of conviction.[8] An agency may deny a license application to protect the public, not as further punishment for the crime.[9] The issue in this case is whether, on the date Mrs. Rivera submitted her application for licensure, she was “a person of honesty, truthfulness and good character” under A.R.S. § 32-2153(B)(7). The law recognizes that even convicted felons may be rehabilitated and the Department has discretion[10] to grant a license to an applicant who has established that he is rehabilitated.[11] Among the factors that may be considered in determining rehabilitation are the extent of the criminal record, the length of time that has elapsed since the offense was committed, the nature of the offense, any applicable mitigating circumstances, the degree to which the applicant participated in the offense, whether the applicant has completed his sentence, whether the applicant has paid restitution, and evidence of subsequent positive actions.[12] Mrs. Rivera’s guilty pleas collaterally preclude her from arguing in this administrative action that the acts she admitted in her plea agreements were not crimes or that she did not commit acts constituting the prima facie elements of her crimes.[13] This means that she cannot argue in this proceeding that she did not assault a police officer in 1999, did not write a bad check in 1999, was not cruel to an animal in 2001, did not break a pool cue over a man’s head in a barroom brawl in 2003, and did not drive while intoxicated in 2003. These are not the acts of a person of good character. Cause therefore exists under A.R.S. § 32-2153(B)(7) for the Department to deny Mrs. Rivera’s application for licensure. Mrs. Rivera has demonstrated that she has made substantial changes in her life and that she is well on her way to becoming a productive and law- abiding member of society. She is to be commended. But the length of time and quantum of evidence required for a person who has been convicted six serious misdemeanors in the past ten years to establish rehabilitation is commensurate with the number and seriousness of her past offenses. Although Mrs. Rivera’s testimony was credible that she no longer drinks to excess and has made substantial changes in her life, three and one half years of a law-abiding lifestyle does not counterbalance at least six years of persistent criminal misconduct. Although Mrs. Rivera has not committed any new crimes since late 2004, when she committed the crime of shoplifting, she still is on probation for that offense. In addition, she has not yet satisfied the Bank of America civil judgment. In addition, Mrs. Rivera’s failure accept responsibility for the assault on the police officer in 1999, the bad check, and her participation in the barroom brawl in 2003 demonstrates that her rehabilitation is still not complete. The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. It would not fulfill that statutory mandate by licensing Mrs. Rivera as a real estate salesperson at this time. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Department affirm its decision to deny Mrs. Rivera’s application for a real estate salesperson’s license at this time and dismiss this appeal. Done this day, March 24, 2008.

______________________________________ Diane Mihalsky Administrative Law Judge

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

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

By ___________________________ ----------------------- [1] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [2] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [3] Black’s Law Dictionary at page 1220 (8th ed. 1999). [4] This statute allows the real estate commissioner to deny a license application if the applicant has “[v]iolated any federal or state law, regulation or rule that . . . involves theft, . . . dishonest dealings or violence against another person . . . .” [5] This statute allows the real estate commissioner to deny a license application if the applicant has “[v]iolated the terms of any criminal or administrative order, decree or sentence.” [6] See A.R.S. § 13-904(E). [7] Id. [8] See Russell v. Royal Maccabees Life Ins. Co., 193 Ariz. 464, 470, 974 P.2d 443, 449 (App. 1998). [9] Id. at 469, 974 P.2d at 448 (quoting Adams v. County of Sacramento, 1 Cal. Rptr. 2d 138, 143-44 (App. 1991)). [10] See A.R.S. § 32-2153(B) (“The commissioner may . . . deny the issuance of a license” under certain circumstances (emphasis added)). [11] See, e.g., Matter of Rivkind, 164 Ariz. 154, 160-61, 791 P.2d 1037, 1043-44 (1990) (“[C]ourts are uniformly impressed by an attorney’s sincere efforts at rehabilitation and contrition, especially if such efforts demonstrate that the public and the legal system are unlikely to suffer a risk of future misconduct.”); Application of Spriggs, 90 Ariz. 387, 388-90, 368 P.2d 456 (1962) (where 4 years had passed since conviction for income tax evasion and evidence showed rehabilitation, applicant readmitted to bar without being required to pass bar exam again); Ulrich v. Board of Funeral Service, 289 Mont. 407, 961 P.2d 126 (1998) (“[A]n applicant whose license has been denied or revoked due to a criminal conviction . . . is entitled to apply for reinstatement and he is entitled to a full hearing . . . .”); cf. Matter of Wines, 135 Ariz. 203, 205-06, 660 P.2d 454, 456-57 (1983) (after considering circumstances of conviction as well as respondent’s poor prior record, Arizona Supreme Court did not disbar attorney but instead suspended him for a period of 5 years, with credit for 16 months interim suspension during pendency of proceedings). [12] Cf. A.R.S. § 41-619.55(E). This statute sets forth the factors that should be considered in determining whether an applicant for a Fingerprint Clearance Card has established rehabilitation. Although this statute does not govern this proceeding, it is the only Arizona statute in which the legislature has explicitly set forth the factors that should be considered to determine whether a license applicant has demonstrated rehabilitation. [13] See, e.g., William Morris Arenstein v. California State Board of Pharmacy, 265 Cal. App. 2d 179, 189-90, 71 Cal. Rptr. 357, 363-64 (App. 1968); Board on Law Enforcement Officer Standards and Training v. Rushing, 752 So. 2d 1085, 1090 (Miss. App. 1999); New Jersey Dept. of Law & Public Safety v. Gonzalez, 142 N.J. 618, 629-30, 667 A.2d 674, 690 (1995).

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