ALJDEC decisions subject to certification as final

10F-DI-1127-REL · Department of Real Estate · 2010-08-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 4, 2010 APPEARANCES: Randall Sharman appeared on his own behalf; Assistant Attorney General Kelly LaPrade appeared for the Department of Real Estate ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On June 17, 2010, the Arizona Department of Real Estate issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. August 4, 2010, at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing provided that the hearing was to determine whether grounds exist to affirm the Order of Summary Suspension of Mr. Randall Sharman’s real estate broker’s license, and whether Mr. Sharman’s license should be revoked. 3. Mr. Sharman has been licensed by the Department as a broker since October 1, 1996, and he was licensed as a salesperson beginning in 1977. Mr. Sharman’s broker’s license will expire on September 30, 2012. 4. On March 25, 2010, Mr. Sharman pleaded guilty to Conspiracy to Sell Dangerous Drugs, a class 2 felony. See Exhibit E (Judgment). 5. Mr. Sharman was sentenced to 5 years probation and 180 days in jail, with the jail sentence to be suspended provided that Mr. Sharman completes inpatient drug treatment. See Exhibit E. 6. In a letter dated April 2, 2010, Mr. Sharman informed the Department of his felony conviction. See Exhibit B. 7. On May 3, 2010, the Department issued an “Order of Summary Suspension and Notice of Opportunity for Hearing.” See Exhibit H. 8. Mr. Sharman filed an appeal, which led to the instant hearing. 9. The Department presented the testimony its licensing manager Ms. Diane Paulsen and had 8 exhibits admitted into evidence. 10. Mr. Sharman presented his own testimony and that of Mr. Dorel Cioara and Mr. Charlie Walters, and he had 3 exhibits admitted into evidence. 11. Mr. Sharman testified that: a. During the last down turn in the real estate market he lost his home and he tried to earn money the wrong way (i.e., by selling methamphetamines). b. He is sorry for what he did and he has admitted his guilt and is taking his punishment. c. He first used methamphetamines about 2 to 3 years ago and he also smoked marijuana over the last 5 years. d. He used the methamphetamines because he lost focus. e. Methamphetamines are easy to get “hooked” on. f. As part of his sentence, he is tested for drugs bi-weekly and he is not now using illegal drugs. g. He has volunteered his time to a number of organizations. h. Real estate is his way of life and he needs to work to help support his 3 children, 2 of which are in college and 1 who is 15. i. He does not believe that revocation is appropriate, but he would accept suspension until he is off probation. 12. Mr. Cioara is the designated broker for Real Estate Brokers International – Commercial, which was Mr. Sharman’s employer prior to the summary suspension. Mr. Cioara testified that Mr. Sharman’s work had been exemplary and that he deals well with difficult people. 13. Mr. Cioara was aware that Mr. Sharman had been convicted of a felony related to selling drugs, but he was not aware of the details of Mr. Sharman’s illegal drug use. 14. Mr. Walters is licensed by the Department as a salesperson. He has known Mr. Sharman since they were teenagers, and he is in business with Mr. Sharman’s brother. 15. Mr. Walters testified he and Mr. Sharman’s brother buy and renovate houses after which they sell them, and that allowing Mr. Sharman to remain licensed would be helpful to that business. 16. Mr. Walters testified that Mr. Sharman would go to great lengths to help people and that Mr. Sharman had made a mistake but his real estate work was always done right. 17. Mr. Walters had little knowledge about Mr. Sharman’s illegal drug use. CONCLUSIONS OF LAW 1. The Department bears the burden of persuasion. See A.R.S. § 41- 1092.07(G)(2). The standard of proof on all issues in this matter is by a preponderance of the evidence. See A.A.C. R2-19- 119. 2. A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). 3. Mr. Sharman was convicted of a felony for which he is on probation and, consequently, the Department acted within its authority when it issued the summary suspension. The Order of Summary Suspension was in compliance with the statutory requirements. See A.R.S. § 32-2157. 4. Mr. Sharman has been convicted of a felony, which is a violation of A.R.S. § 32-2153(B)(2). Mr. Sharman’s felony conviction shows that he is not a person of honesty, truthfulness and good character. See A.R.S. § 32-2153(B)(7). Consequently, discipline against Mr. Sharman’s license is appropriate. 5. Although Mr. Sharman argues for a suspension rather than revocation, considering the nature of his criminal acts and that Mr. Sharman will be on probation for 5 years, revocation is appropriate.

ORDER IT IS ORDERED that the Department’s “Order of Summary Suspension” is affirmed; and IT IS FURTHER ORDERED that Randall Sharman’s license No. BR005886000 is revoked. Done this day, August 19, 2010.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate -----------------------

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