ALJDEC decisions subject to certification as final

16F-DI-215-REL · Department of Real Estate · 2016-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 22, 2016 APPEARANCES: James Travis Pavlik represented himself. The Arizona Department of Real Estate was represented by Assistant Attorney General Ryan Krench, Esq. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT On or about March 2, 2016, Petitioner submitted an application for a real estate salesperson’s license to the Arizona Department of Real Estate (hereinafter “Department”). In his application, Petitioner acknowledged that he had had been convicted of seven misdemeanors, including a conviction for Battery. On or about March 28, 2016, the Department issued an Intent to Deny Letter informing Petitioner that he did not possess the qualifications for licensure. The letter provided, in relevant part, as follows: The [Department] has reviewed your application for Original Real Estate Salesperson’s License and has determined that you do not meet the qualifications for licensure pursuant to A.R.S. § 32- 2123, 32-2124 and 32-2153. This conclusion is based in part, but not exclusively, 7 misdemenaor convictions, including a conviction for battery. The Department considers your conduct to have violated Arizona Revised Statutes and/or Arizona Administrative Codes, including, without limitation: A.R.S. § 32-2153 (B)(7) and (B)(10).

3. Petitioner disagreed with the Department’s determination to deny his license application and requested an administrative hearing. 4. On or about December 23, 2008, Petitioner was convicted and sentenced to probation, community service, fines and fees for the crime of Battery, a misdemeanor, in the Superior Court of California, County of Santa Clara. 5. On or about November 11, 2009, Petitioner was convicted and sentenced to probation, fines and fees for the crime of Disorderly Conduct - Disturbance, a misdemeanor, in Scottsdale City Court. 6. On or about May 11, 2010, Petitioner was convicted and sentenced to confinement, probation, alcohol classes, ignition lock, fines and fees for the crime of Driving Under the Extreme Influence of Intoxicating Liquor, a misdemeanor, in Mesa Justice Court. 7. On or about January 5, 2010, Petitioner was convicted and sentenced to

probation, alcohol education and treatment, fines and fees for the crime of being Under the Influence of Alcohol/Drugs in Public, a misdemeanor, in Scottsdale City Court. 8. On or about August 19, 2010, Petitioner was sentenced to confinement, probation, participation in Alcoholics Anonymous, fines and fees for the crimes of Failure to Obey a Police Officer and being Under the Influence of Alcohol/Drugs in Public, both misdemeanors, in Scottsdale City Court. 9. On or about November 21, 2011, Petitioner was sentenced to confinement, alcohol education and treatment, fines and fees for the crime of Damage Property – Deface Less Than $250, a misdemeanor, in Scottsdale City Court. 10. On February 5, 2016, Petitioner was issued an Arizona Department of Public Safety Level One Fingerprint Clearance Card containing driving restrictions pursuant to A.R.S. §41-1758.07 (D). Petitioner is “precluded from driving any vehicle to transport employees or clients of the employing agency as part of the person’s employment.” 11. At hearing, Petitioner testified that he has been clean and sober since May 31, 2012. 12. Petitioner completed anger management and substance abuse classes. He also attended Alcoholics Anonymous meetings. 13. Petitioner submitted letters of character from Brian Nolan and David Garr in support of his appeal of the denial determination. 14. Brian Nolan, a licensed realtor and the regional director for Willis Consulting wrote that he has always known Petitioner to be nice, hardworking and honest. Mr. Nolan has known Petitioner since September of 2015. Mr. Nolan wrote, “I see no reason why he should not have a license to practice real estate. I am a licensed realtor since 2014, so I know about what is required from a realtor.” Mr. Nolan’s letter was dated June 21, 2016. 15. David Garr, the Regional Director for Willis Consulting Inc., wrote that Petitioner worked for Willis Consulting Inc. as a search assistant and a Regional Recruiter. He wrote that he was aware of Petitioner’s past difficulties, but he has been very impressed with Petitioner’s high degree of integrity and professionalism. He wrote that Petitioner is highly effective in his work and should be allowed to proceed in his pursuit of his Arizona Salesperson’s license. Mr. Garr’s letter was dated June 21, 2016. 16. Petitioner requested that he be granted a provisional license, if he is not granted a Real Estate Salesperson’s license. 17. The Department presented its case through the testimony of Wayne L. Jackson, an investigator, and submitted exhibits 1,2,3,4,5,6,7,8,9,10,11 and 12. 18. The Department’s position is that insufficient time has passed to allow Petitioner to establish that he has changed his character. In addition, Petitioner was convicted of Battery, a crime that involves violence against another person, in violation of A.R.S. § 32-2153 (B)(10). 19. At hearing, the record was left open until July 6, 2016 for the sole purpose of allowing a letter or letters from a broker willing to supervise Petitioner under such a provisional license. 20. On June 24, 2016, Petitioner submitted a copy of a letter from Ian Chait, a designated broker at Ian Realty. In the letter, Mr. Chait stated that he was willing to supervise Petitioner more closely than the average salesperson, filing quarterly reports, oversee petitioner’s actions and ensure that Petitioner follows all of the rules and regulations that the Department demands. 21. On July 6, 2016, the Department submitted a letter opposing the granting of provisional salesperson’s’ license to Petitioner. CONCLUSIONS OF LAW 1. The Commissioner has jurisdiction over the subject matter in this case. 2. Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Petitioner has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119(A). 3. 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). It 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). 4. A.R.S. § 32-2153 provides as follows: B. The commissioner may suspend or revoke a license, deny the issuance of a license, issue a letter of concern to a licensee, issue a provisional license or deny the renewal or the right of renewal of a license issued under this chapter if it appears that the holder or applicant has:

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7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character.

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10. Violated any federal or state law, regulation or rule that relates to real estate or securities or that involves forgery, theft, extortion, fraud, substantial misrepresentation, dishonest dealings or violence against another person or failure to deal fairly with any party to a transaction that materially and adversely affected the transaction. This paragraph applies equally to violations of which the licensee was convicted in any lawful federal or state tribunal and to any admissions made in any settlement agreement by the licensee to violations.

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5. The Department’s concern in this case is legitimate and well-founded. A person with a criminal record must be given close scrutiny and careful consideration when he applies for a professional license. 6. Once good character is shown as absent, it is not automatically regained by the mere passage of time. The concern of the Department is essential and legitimate in light of the Petitioner’s past convictions, including DUI and Battery. 7. Petitioner contended that he currently is a person of good character. In support of that contention, Petitioner testified on his own behalf and he presented two character letters. 8. Although Petitioner offered two character letters, the Petitioner did not provide any character witnesses. 9. The above-mentioned letters of character authored by Mr. Nolan and Mr.

Garr are given little weight because Mr. Nolan and Mr. Garr were not present to be questioned by the Department’s counsel or by the Administrative Law Judge and could not be observed by the Judge. Further, due to the content of the letters, the extent of information known by Mr. Nolan and Mr. Garr, and certain relevant details concerning Petitioner could not be discerned nor could such information be explored because Mr. Nolan and Mr. Garr did not testify at the hearing. 10. Under all of the circumstances, although Petitioner has presented evidence that he has altered his character from that which existed when the acts underlying the above-mentioned convictions occurred, not enough time has passed since Petitioner convictions or release from probation to establish rehabilitation. Although Petitioner has shown himself to be truthful and honest, he failed to prove by a preponderance of the evidence that he has the good character required of a licensee, within the meaning of A.R.S. § 32-2153(B)(7). 11. In addition, the uncontested evidence established that Petitioner was convicted of battery, a crime of violence against another person, in violation of A.R.S. § 32-2153(B)(10). 12. 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 Petitioner as a real estate salesperson at this time. 13. In this case, the Department charged Petitioner with violations of A.R.S. § 32-2153(B)(7) and (B)(10). Petitioner was convicted of several misdemeanors including DUI, which reflect poorly on his character during the events that led to the convictions. In addition, Petitioner was convicted of Battery, a crime of violence against another person. Therefore, the Commissioner has discretion to deny Petitioner’s application for a real estate salesperson’s license under A.R.S. § 32-2153(B)(7) and/or (B)(10). 14. Petitioner failed to meet his burden of proof to establish that he has sufficient good character and reputation to satisfy the statutory requirement for licensure or a provisional license in this matter. Consequently, this Tribunal concludes that Petitioner’s application for licensure should be denied. RECOMMENDED ORDER Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends to the Arizona Department of Real Estate Commissioner that this appeal be denied.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order shall be five days from the date of the certification.

Done this day, July 26, 2016. /s/ Velva Moses-Thompson 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