ALJDEC decisions subject to certification as final

09F-LI-186-REL · Department of Real Estate · 2009-02-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 27, 2009 at 1:30 p.m. APPEARANCES: Petitioner Kris Michell appeared on his own behalf; the Arizona Department of Real Estate appeared through Liane Kido, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT The Application On October 8, 2008, the Department of Real Estate (“the Department”) received Petitioner Kristopher Michell’s application to the Department to be licensed as a real estate salesperson, in which he answered “yes” to the question, “In the past 10 years, have you been convicted of any misdemeanor in Arizona or any other State?” Mr. Michell also attached to the application documents relating to his criminal conviction history, which are discussed below, and certain letters of reference, which the Department did not include in the exhibits that were available at the hearing. On January 8, 2008, the Department informed Mr. Michell via certified mail that, based on his application, it had concluded that he did not meet the qualifications for licensure pursuant to A.R.S. §§ 32-2123, 32-2124, and 32- 2153. The Department informed Mr. Michell that its conclusion was based in part, but not exclusively, on his April 16, 2000 misdemeanor conviction for Minor in Possession of Alcohol; January 29, 2002 misdemeanor conviction for driving on a suspended license and making an illegal turn; December 2, 2005 misdemeanor conviction for trespassing; May 23, 2006 misdemeanor conviction for lending identification to another; October 9, 2007 Class 1 misdemeanor for driving under the influence (“DUI”); and December 23, 2007 misdemeanor conviction for assault. The Department finally informed Mr. Michell that his conduct had violated A.R.S. § 32-2153(B)(7). Therefore, the Department notified Mr. Michell that it intended to deny his license application. On December 3, 2008, the Department received Mr. Michell’s request for hearing. The Department referred the matter to the Office of Administrative Hearings and, on December 23, 2008 issued a Notice of Hearing, which set forth the details of the misdemeanor convictions and set an administrative hearing on January 27, 2009 at 1:30 p.m. A hearing was held on January 27, 2009. Mr. Michell testified on his own behalf and had admitted into evidence seven exhibits. The Department presented the testimony of Janet Blair, 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 Mr. Michell had provided with his application that related to his criminal history. Hearing Evidence Mr. Michell did not dispute the fact of his convictions set forth on the Department’s Notice of Hearing. However, he did dispute the circumstances leading to his convictions and offered evidence of rehabilitation. April 16, 2000 Minor in Possession of Alcohol On April 16, 2000, Chandler Police Department officers were called to the Wyndham Garden Hotel. The original call was not related to Mr. Michell. However, when police knocked on a hotel room, looking for their suspect, Mr. Michell answered the door. Mr. Michell was born in 1982. On April 16, 2000 he was 18 years old. He and some of his high school friends, who were also under the legal drinking age of 21 years, had rented two hotel rooms to celebrate prom night. According to the police report, after Mr. Michell consented to the police officers’ request to search the room, they found thirty to forty cans or bottles of beer. Mr. Michell admitted that he and two girls who were in the room were under 21 years old. The officers told Mr. Michell that, since they were busy, they were going to cut him a break. If he emptied all the beer down the bathtub drain, he would not be charged with possession of alcohol. He should get the two girls to help him, because it would be quicker. Mr. Michell agreed to empty the beer down the bathtub drain. When police later returned and knocked on the door of the room where Mr. Michell had been, they received no answer. The bathtub was empty. According to the report, “it was obvious that Michell did not empty any alcohol, but just took it to another location.” Police searched the hotel and found Mr. Michell in a third-floor hallway. He told them that he had dumped the beer in a trashcan by an ice machine. When police went to the ice machine they found only four beer cans or bottles. They found the remaining 30-40 beers on top of the ice machine, “pushed back so as to be just out of sight of the casual observer,” and in the bed of Mr. Michell’s truck in the parking lot. Police made Mr. Michell empty “each and every can and bottle” and return baskets and ice buckets to the hotel. According to the report, “Michell was very verbally belligerent with us as he did so, and this verbal barrage continued even after his mother arrived on scene.” Police cited Mr. Michell for “minor possess/consume alcohol” in violation of A.R.S. § 4-2449. According to the statement that Mr. Michell submitted to the Department regarding the incident, “I was 18 years old and I had rented a hotel room for Prom night. . . . Long story short I ended up with a MIP when it was supposed to be one of the greatest nights of a teenager’s life. (” January 29, 2002 Driving on a Suspended License According to the police report, on January 29, 2002 at approximately 1353 hours, Chandler P.D. Officer Daniel Lovelace observed Mr. Michell making an illegal left turn. The temporary license plate on Mr. Michell’s vehicle had expired on December 19, 2001. Officer Lovelace stopped Mr. Michell. Mr. Michell showed Officer Lovelace his Arizona driver’s license and advised Officer Lovelace that “he did not have a license plate due to the fact that ‘MVD wouldn’t give me one cause my license is suspended or something like that.’” Officer Lovelace made a Motor Vehicle Department (“MVD”) inquiry of Mr. Michell’s driver’s license status, “which returned suspended out of Tempe Justice Court on 120401 for Failure To Appear (FTA) on traffic citations.” When Officer Lovelace advised Mr. Michell of the status of this driver’s license, he responded, “‘I know…I was taking care of that now.’” Officer Lovelace cited Mr. Michell for the criminal traffic violation of driving on a suspended license and issued an MVD withdrawal notice regarding the seizure of Mr. Michell’s driver’s license due to the suspension. When Officer Lovelace advised Mr. Michell that he could not drive due to the suspended status of his license, “[a]fter much debate and belligerence, [Mr. Michell] reluctantly left the scene without driving and advised that he would seek alternate means of transportation.” Mr. Michell’s statement to the Department for this offense provided in relevant part: [T]here was no time served or classes given for this crime, only fines which were about $500.

I was 20 years old and my license was suspended for not paying a window ticket violation that I had received several months prior. I was just so busy and accidently overlooked the ticket. I was pulled over for taking a left turn where I was not supposed to and found out that my license was suspended. I went to court and explained this all to the judge. At that time I already had my license back and paid a smaller fine.

December 2, 2005 Disorderly Conduct and Trespass On December 2, 2005 at 0157 hours, Tempe Police Department Officer J. Giardino responded to the Tavern bar on Mill Avenue for a reported fight in progress. According to Officer Giardino’s report, when he arrived, Mr. Michell “was on the ground and being restrained by members of the Tavern’s security.” The security members told Officer Giardino that “they had contacted [Mr. Michell] when he had attempted to enter the bar by jumping over the fence outside the patio [and] then attempted to push past the bouncers to get inside . . . . The bouncers were not willing to aid in the prosecution and requested that a trespass warning be issued.” Officer Giardino reported Mr. Michell’s reaction to the trespass warning, in relevant part as follows: I then issued a trespass warning to [Mr.] Michell. During that time that I contacted him he shouted repeatedly at the bar staff and the other customers making loud and insulting statements. He continuously shouted at me and Officer K. Kelch who had responded to assist.

I then left [Mr.] Michell’s immediate vicinity and attempted to ascertain that he had a safe means of transportation away from the bar. I was able to contact an unknown subject who claimed to be a friend of [Mr.] Michell and who stated he was willing to drive [Mr.] Michell home.

During that time [Mr.] Michell continued shouting but I was unable to hear exactly what he was saying. I then heard Officer K. Kelch instruct [Mr.] Michell several time to cease shouting and Officer K. Kelch had to raise his voice in order to be heard.

I then joined Officer K. Kelch and again attempted to calm [Mr.] Michell down. Officer K. Kelch then informed me that he had heard Kristopher Michell make threatening statements toward the security employees.

I then informed [Mr.] Michell that he would be placed under arrest if he didn’t calm down and listen to us. [Mr.] Michell continued to shout and make insulting and obnoxious statements.

[Mr.] Michell was then arrested, transported and booked into the Tempe City Jail and charged with disorderly conduct.

During the booking process [Mr.] Michell began to make threatening and insulting statements to myself and Officer K. Kelch. . . .

According to Officer Kelch’s supplemental report of the incident, “Michell was very belligerent during the whole time we dealt with him and the last half of our conversation with Michell was recorded.” On December 2, 2005, Mr. Michell pled guilty to one count of trespass, in violation of A.R.S. § 13-1502(A)(1) and the charge of disorderly conduct under A.R.S. § 13-2904(A) were dismissed. Mr. Michell was sentenced to serve one day in jail, with credit for one day served. Mr. Michell’s statement to the Department regarding this incident in relevant part follows: This took place in Tempe on Mill Avenue one night while I was out with my friends. Me and some friends including my girlfriend were all out having a good time at a bar called Tavern. At around 1:20 I had received a phone call on my cell that I decided to take. Well in order to hear I had to leave the bar and stand out front. The bouncers saw what I was doing and had to of [sic] understood my purpose for stepping out front. When the call was finished it was about 1:40. I then tried to reenter the bar and the bouncers would not let me. “the bar is closed” is what they kept telling me. I had requested there [sic] manager several times and asked if I could just go in and close my tab and get my girlfriend. They continued to completely disregard me and treated me like I was someone they just wanted to mess with. After sitting there for minutes trying to convince them to just let me back in, this girl walks up and they card her and let her right in. As you can imagine I was infuriated at this, so I just started to walk in. I was immediately tackled and thrown to the ground where a 250 pound man was just laying on top of me while they called the cops. When the police arrived I was very upset and because of this I was arrested for disorderly conduct. This was later reduced to Trespassing because the stories didn’t match up and Tempe is a zero tolerance city so they had still arrest me.

I decided to just stay the night in jail because I would get to see the judge in the morning which was only 5 or 6 hours away and I just wanted to be done with the whole thing. Lesson learned!

May 13, 2006 Lending Identification On May 13, 2006 at approximately 2300, Tempe P.D. Officers Hayes and Arredondo were called to a bar on Mill Avenue for an ID check. The doorman informed the officers that a man who was later identified as Kerry Brudus was attempting to use an ID that did not look like him to enter the bar. Mr. Brudus admitted to Officers Hayes and Arrendondo that he had been born in 1986 and had not reached legal drinking age. The doorman indicated that he believed that the person to whom the ID belonged was inside the bar and led police to Mr. Michell. When Officer Arrendondo asked Mr. Michell for his ID, he took out his wallet and thumbed through it, then said, “man I think I might have dropped it.” Officer Arrendondo informed Mr. Michell that police had his license and that he needed to be honest. Mr. Michell said that he “gave his license to his friend . . . Kerry Brudus who had forgotten his ID at home. [Mr.] Michell said Kerry was old enough to be in the bar but did not have an ID to get inside.” Mr. Michell was cited for lending his driver license to another and booked into the Tempe City Jail. On May 23, 2006, Mr. Michell pled guilty to the offense of lending his identification to another and sentenced to pay a fine of $250.00. Mr. Michell’s statement to the Department about this offense provided in relevant part: This event in my life took place one night on Mill Avenue in Tempe at about 11:45pm. Me and some friends had just arrived to a Club called Margarita Rocks. Myself and 3 other friends were standing in line to get in to the club. My best friend Darren had brought a good friend of his who had forgotten his ID at home. This guy Kerry looked like me and instead of us going all the way back home we all had collectively suggested that he just use mine. Well I entered the bar and Darren had taken my ID out to him to use to get in. I had trusted my best friend that his buddy Kerry was over the drinking age so I thought it was no big deal. WELL… It turns out he did not look enough like me and he was not old enough. The door man had the cops came over to speak with him. The cops were not concerned with the person on the ID just the fact that he was using it. Well the bouncer had come in to find me because he had recognized the photo. So I decided to go out to speak with the cops because I thought that I would just get a slap on the hand or possibly a small fine. I felt that I had not broken that law because he was the only who used it to get it. BUT… Me and Kerry were both arrested and taken to jail…. I couldn’t believe that over something so petty I was arrested.

I spent a few hours in jail and paid a fine for such a baby thing. The exact crime was “lend ID to another”. I was in shock that with all the drunks around and the many other major crimes that were taking place that they took me to jail for that. Lesson learned!

March 22, 2007 DUI On March 22, 2007, Phoenix P.D. Officer Wade Cheatham observed a vehicle that Mr. Michell was driving “disregard the traffic control device and make a U-turn direction in front of me.” Officer Cheatham stopped Mr. Michell. Officer Cheatham’s report continues: I contacted Michell and asked for the required paperwork at which time I could smell a strong odor of intoxicating liquor coming from his breath as he yelled at me telling me “your not a real police officer and I know my rights. You are a Phoenix police officer and we are in Chandler so you are out of your jurisdiction and can’t do anything to me.” At that time I requested another unit and a DUI motor. Michell continued yelling and cursing at me. He then dialed 911 to the Chandler Police Department stating he was being held against his will by a subject pretending to be a police and won’t give his name. I was attempting to keep this situation calm by just listening to Michell due to him being very agitated. I asked again for the required paperwork but still did not obtain it. Finally after a 3rd request I was able to obtained the paperwork. Michell stated “I should just drive away but your car is blocking me.” Officer Breese #7987 arrived shortly thereafter and assisted me along with several other Phoenix officers . . . . I asked Michell to step out of his vehicle and he was placed under arrest by Officer Breese and I. He was cuffed behind his back after he placed his phone on the trunk of my police car. He continued with the yelling and cursing at which time he was placed in the back seat of my police car. Two Chandler police officers showed up . . . . Officer Smith . . . then attempted to administer the HGN test and Michell stated “I’m not doing any fucking test”. His vehicle was locked and secured . . . . I transported Michell to the DUI van where Officer Thornhill attempted to conduct the interview. . . . While in the van the belligerent Michell continued his behavior and asked for a supervisor. Sgt. Delatorre . . . arrived and spoke to Michell and his behavior continued with Sgt. DelaTorre. Michell retrieved some Listerine strips from his left front pants pocket and put one in his mouth. . . .

Officer Cheatham’s arrest report noted that he “did not read Miranda rights because [Mr. Michell] said he would not answer ‘any fucking questions.’” On October 9, 2007, Mr. Michell pled guilty/no contest to DUI and was sentenced pursuant to the plea to a fine of $1,727.00 and 10-day term of imprisonment, of which nine days were suspended. Mr. Michell’s statement to the Department regarding this offense provided in relevant part: This event happened to me on a Wednesday the day before my birthday. I was just at a small bar within walking distance to my house with some friends watching some football. When we were all finished and decided to drive down to Whataburger because we were all pretty hungry. I really felt that I was safe to drive so we went. We were almost to our destination when I performed a perfectly LEGAL U-turn to get to Whataburger. Well the officer said that it was an illegal one because he claimed to see a sign prohibiting that action. I was pulled over and sited [sic] for a DUI. I paid a lawyer $4000 dollars because I was illegally stopped and we thought we had a case. I blew a .096 which is .016 above legal, but that [is] what I was convicted for and I guess in AZ you can get a DUI with 1 sip if they can measure it.

This was the biggest lesson in life that I have ever learned. The entire thing cost me nearly $8000 dollars plus all the insurance I will have to pay in the future. It was incredibly stupid and I will never do anything like it again. I have always been a responsible individual and out of the three of us that night I was the safest choice to drive because I only had 4 in a 2 hour span.

December 23, 2007 Assault On December 23, 2007, Tempe P.D. was called for a fight at a bar called Grahams Central Station. According to Officer Kristina Doran’s report, Upon arrival, I contacted (V) Joseph Heinsler, who is a member of the security at Grahams, who told me that there was two outstanding individuals that were heading away from Grahams and were trying to fight with security. I headed out to the parking lot located to the north of Grahams with several other security members to locate the subjects. Heinsler pointed out (S) Kristopher Michell as one of the individuals trying to fight with security. I approached Michell and told him to sit on the curb while I went to contact another individual about 30 feet away that was getting into a vehicle. When I began to turn and walk away and head over to the other individual, I noticed Michell get off the curb, shove Heinsler in the chest with both hands, and take off running towards the north part of the parking lot.

Michell tripped over his shoelaces and fell to the ground. Security and I picked him up and I asked Michell why he got up from where I told him to sit. Michell replied, “Who the fuck are you to tell me where to sit?” At this point, I detained Michell for assault because he pushed Heinsler in the chest with both hands. . . .

Mr. Michell was arrested at 2:15 a.m. and transported to the Tempe City Jail, where he was booked and held to see a magistrate. On February 25, 2008, Mr. Michell was convicted of misdemeanor assault, in violation of A.R.S. § 13-1203(A)(2),[1] and placed on unsupervised probation for a term of twelve months. Mr. Michell was on probation for this offense at the time of the hearing. Mr. Michell’s statement to the Department concerning this incident provided in relevant part: This is honestly the worst thing that has ever happened to me in my eyes because I was accused of a crime that I did not do. We were exiting the club after the club had closed and one of my friends was very intoxicated and tried to start a fight with whomever he could, including security. Well this is a friend that I hardly ever! Hangout with because this is the kind of stuff I’m afraid he will do. I was the responsible driver and I was the one giving my friend a ride home so I had to stick by him. I did not try to fight anyone at the bar like the police report claims the security noticed. Three security guards detained me way outside of the clubs parking lot which is illegal. They took me back to their parking lot to wait for the police to arrive. I was upset that I did nothing and I was being held against my will by a non police officer. I got off the curb and ran towards my car and fell because my shoe came off. I did not want to get into any trouble because things were looking up in my life. I DID NOT push anybody and I have 2 witnesses that saw the entire thing. They both were ironically out of town during my trial so I could not use them as witnesses. I still felt that this entire thing was going to get dropped because I had spoken to the manager of the security and Joseph the supposed victim and said that he was not Assaulted. So when I went to court to fight this whole thing I knew that Joseph was not going to be there because he said he wasn’t. When I got in the court room I found out that the prosecution had changed the actually which allowed them to pursue me without there having to be a victim. I immediately objected and told the judge and the court room that this was unfair, unethical, and against my rights. This did not work and they screwed me over big time. I am still bothered by the fact that I was treated this way. I feel like my constitutional rights went right out the door that day. So I received 12 months of unsupervised probation. This just means I cannot get in any trouble for that time frame, which will be easy for me because I am not a trouble maker.

Other Evidence Ms. Blair testified that the Department is charged with protecting the public. To fulfill its statutorily prescribed duty, the Department may only issue licenses to persons of honesty, truthfulness, and good character. Mr. Michell’s criminal history indicates that he is not a person of good character. Mr. Michell testified that he went to real estate school and passed the real estate licensure examination, although he had to take the examination twice. He has been working for six years at a title company as a notary. Mr. Michell had admitted into evidence seven letters of reference. Brian Hardy, the Director of Sales for Architectural Impressions, wrote that Mr. Michell “[was] no ordinary guy, and you would be hard pressed to find anyone who believes in the power to positive thinking more than Kris.” Jennifer Mattison, the Customer Service Manager at Spartan Packaging, Inc., was “aware that within the last couple years Kris has experienced some life learning lessons with the law” but that she had “seen him grow and make the necessary changes in his life due to those mistakes.” Garrett Cesik, the President of Blue Horizons Group, stated that Mr. Michell “possesses an incredible ability to develop relationships and drive to meet new challenges and sales goals.” Pete Levas, the Recovery Manager of Amfinity Finance, stated that Mr. Michell was “always quick on his feet, with sensible reactions in all the circumstances I’ve seen him in.” Mr. Levas was “confident in saying that [Mr. Michell] is capable of handling any situation with thoughtfulness and maturity.” Adam Abreu, the President of Vermillion Contracting, Inc., called Mr. Michell “a pleasant generous person who is never afraid to meet even the most demanding challenge.” Kenny Hieb, the President of NLS, said that Mr. Michell was “definitely a leader rather than a follower,” with “a high degree of integrity, responsibility, and ambition.” Dan Fucello, the Phoenix Operations Manager of Dealer Specialties, stated that Mr. Michell’s “drive and ability to succeed make him an inspiration to others.” Mr. Michell pointed out that his criminal history involved his personal, not his professional life. He testified that, although he made poor choices when he was young, he has paid for his mistakes and has shown remorse. The March 2007 DUI was “a huge wake-up call” that caused him to make significant changes in his life. He lives with his girlfriend, whom he intends to make his fiancée. He goes to Cornerstone Church. Mr. Michell denied at the hearing that he had assaulted anyone in December 2007. He testified consistently with his statement regarding this incident. CONCLUSIONS OF LAW The Department bears the responsibility to protect the public through its enforcement of licensing statutes.[2] This matter lies within its jurisdiction. Mr. Michell bears the burden of proof and must establish that he meets statutory qualifications for a real estate salesperson’s license by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 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.”[5] A person who has successfully completed his sentences may not be disqualified from employment or licensure.[6] But such a person may be denied a certificate or license 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 Mr. Michell submitted his application for licensure, he 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] The six misdemeanors for which Mr. Michell was convicted were all relatively minor offenses. But they show a pattern of misconduct spanning six years. Two of the offenses occurred in 2007, within 18 months of Mr. Michell’s submission of his application to the Department. Mr. Michell was still on probation for the crime of assault on the date of the hearing. Mr. Michell’s guilty or no contest pleas to the crimes of minor in possession of alcohol, driving on a suspended license, trespass, lending identification, and DUI and his conviction of assault collaterally preclude him from arguing in this administrative action that he for not commit acts constituting the prima facie elements of these crimes.[13] This means that he cannot argue in this proceeding that he did not commit these crimes, including assault in 2007. These are not the acts of a person of good character. Cause therefore exists under A.R.S. § 32-2153(B)(7)[14] for the Department to deny Mr. Michell’s application for licensure. With respect to the issue of Mr. Michell’s claimed rehabilitation, the police reports and Mr. Michell’s statements reveal two patterns of behavior that do not demonstrate rehabilitation or good character. First, Mr. Michell fails to accept responsibility for any of the acts that led to his convictions. The convictions for minor in possession of alcohol and lending identification were petty and “baby things.” He just forgot to pay the traffic ticket because he was busy, even though he admitted to police that he knew he could not get a permanent tag for his vehicle when the temporary tag expired on December 19, 2001 because his driver’s license had been suspended. According to him, the bouncers at the Tavern bar, Margarita Rocks bar, and Grahams Central Station treated him unfairly. Phoenix P.D. Officer Cheatham should not have stopped or cited him for DUI because he had performed a “perfectly LEGAL U-turn” and “I guess in AZ you can get a DUI with 1 sip if they can measure it.” Mr. Michell’s statements to the Department about the incidents that led to his criminal convictions show a lack of respect for the law and an absence of legal accountability. His statements do not show good character. Secondly, the police reports and Mr. Michell’s statements to the Department shows his unfortunate and irresponsible tendency to escalate conflict, even when dealing with peace officers and others charged with keeping public order. In at least three of the incidents, Mr. Michell’s belligerence led him to be charged with and convicted of a crime. Police did not want to charge him with possession of alcohol, but he refused to pour his beer out in 2000. The bouncers at the Tavern bar wanted police to give Mr. Michell a warning in 2005, but police had to arrest him after he refused to heed numerous warnings to calm down and be quiet, and insisted on making threats and insults to the bouncers and to the police. In 2007, Officer Doran just wanted him to sit on the curb, but because she worked for Phoenix P.D. rather than Chandler P.D., Mr. Michell would not follow her instructions. Mr. Michell’s insistence on the correctness of his own point of view, to the point of escalating conflict with law enforcement and others charged with keeping the peace, shows immaturity, poor judgment, and a lack of good character. 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 Mr. Michell 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 Mr. Michell’s application for a real estate salesperson’s license at this time and dismiss this appeal. Done this day, February 3, 2009.

______________________________________ Diane Mihalsky Administrative Law Judge

Original transmitted by mail this ____ day of February, 2009, to:

Arizona Department of Real Estate Jerome Jordan, Interim Commissioner 2910 North 44th Street, Room 100 Phoenix, AZ 85018

By ___________________________ ----------------------- [1] A person commits this crime by “[i]ntentionally placing another person in reasonable apprehension of imminent physical injury.” [2] See Sigmen v. Arizona Dept. of Real Estate, 169 Ariz. 383, 388, 819 P.2d 969, 974 (Ct. App. 1991). [3] 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). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] Black’s Law Dictionary at page 1220 (8th ed. 1999). [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). [14] This statute allows the Commissioner to deny the issuance of a license if the applicant has “[n]ot shown that the . . . applicant is a person of honesty, truthfulness and good character.”

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