ALJDEC decisions subject to certification as final

16F-DI-225-REL · Department of Real Estate · 2016-07-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 10, 2016 with the record held open until July 1, 2016 to permit Petitioner to submit a letter from a designated broker in support of the issuance of a provisional license and to permit the Arizona Department of Real Estate (Department) to respond to any letter that might be provided. APPEARANCES: William Eric Jennings (Petitioner) represented himself. The Department was represented by Assistant Attorney Ryan Krench, Esq. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT On March 11, 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 three misdemeanors for Extreme DUI between July 2010 and October 2014. Petitioner “is precluded from driving any vehicle to transport employees or clients of the employing agency as part of the person's employment” pursuant to A.R.S § 41-1758.07(D). On April 1, 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, on your 2010, 2012 and 2014 convictions for Extreme DUI. 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).

Petitioner disagreed with the Department’s determination to deny his license application and requested an administrative hearing. On or about July 2, 2010, Petitioner was convicted of Extreme DUI, a misdemeanor in Scottsdale City Court, case number M-0751-TR-[number redacted]. Petitioner was sentenced to 60 days of work release, 66 hours of alcohol education/treatment, fines and fees. On or about April 25, 2012, Petitioner was convicted of Extreme DUI, a misdemeanor in McDowell Mountain Justice Court, case number TR-[number redacted]. Petitioner was sentenced to 60 days of work release, fines and fees. On or about October 16, 2014, Petitioner was convicted of Extreme DUI, a misdemeanor in Scottsdale City Court, case number M-0751-TR-[number redacted]. Petitioner was sentenced to 180 days of house arrest days of work release, hours of alcohol education/treatment, 30 hours of community service, fines and fees. At the hearing, the Department offered the testimony of its Manager of Auditing and Investigations, Robin King (hereinafter Ms. King). Ms. King testified that although the Petitioner claimed to be sober since November 2014 and no longer suffering back pain that caused him to self- medicate, the Department did not change its position with regard to its intent to deny Petitioner’s application in light of the how recent the convictions were and the fact that Petitioner had not demonstrated his ability to stay sober over the long term. Ms. King testified that the Petitioner made poor decisions without considering how other parties could have been affected. These poor decisions including circumventing an interlock device placed on his car by choosing to drive a friend’s car while under the influence of alcohol. Ms. King stated that the Department has an obligation under the law to assess an applicant’s ability to get a license. Therefore, the Department reviews criminal conviction information. She testified that a criminal conviction reflects upon the applicant’s character and behavior. The Department contended that insufficient time has passed to allow Petitioner to establish that he has changed. Ms. King stated that one of the real estate licensee’s obligations is to consider the interest of other parties. Petitioner did not consider the interests of other people on the road when he chose to drive under the influence. She stated that the Department is also concerned that a great deal of the time, real estate licensees are driving people around in their cars. Ms. King questioned how Petitioner could do so given the restrictions on his driver’s license detailed above. Petitioner testified that he takes full responsibility for the pain that he caused himself and his family due to his criminal acts. He indicated he was suffering from severe back pain that he self-medicated and also went through some hard times in his personal life, but that he was pain-free at present and ready to move forward with his professional life. He noted that he had been successful in investing in real estate and believed he could be similarly successful selling real estate to his contacts. Petitioner acknowledged that he had also been convicted of a DUI in Colorado in his 20s. He indicated that he had attended some meetings of Alcohol Anonymous but now simply trusted himself not to drink, by recalling the personal and financial toll drinking has had on his life. On July 7, 2016, Petitioner submitted a signed, notarized letter from C. Dale Hillard, which provides in full as follows: I, C. Dale Hillard, Designated Broker have reviewed the Administrative Hearings document for [Petitioner], and I agree to be his practice monitor. I will review and read any future consent order. I have not been a party to prior disciplinary action by the Department.

[Petitioner] and I are not related, nor are we business partners, or co-owners in any business enterprises. In the future we will not create, or create the appearance of, a conflict of interest or bias.

[Petitioner] and Dale Hillard will submit sworn declarations quarterly that comply with all Title 32 Statutes and applicable Real Estate regulations.

On July 8, 2016, the Department filed a response to the above letter, indicating its continued opposition to grating Petitioner a real estate salesperson’s license. The Department did not address how, if at all, Mr. Hillard’s willingness to serve as Petitioner’s practice monitor would impact the concerns expressed by Ms. King at hearing. CONCLUSIONS OF LAW 1. The Commissioner has jurisdiction over the subject matter in this case. 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). 2. 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). 3. 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:

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

4. The Department’s concern in this case is understandable. A person with a criminal record must be given close scrutiny and careful consideration when he applies for a professional license. 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 for Extreme DUIs. The conviction of multiple crimes is not a permanent bar to being licensed. However, the Petitioner has the burden of proving by the preponderance of the evidence that he has resolved the issues that led to the commission of the Extreme DUIs to establish that he has sufficient good character and reputation to satisfy the statutory requirement for licensure as a real estate salesperson. Petitioner has met this burden agreeing to be subject to a consent decree crafted by the Department that includes practice monitoring by C. Dale Hillard. He also indicated that he will abide by the conditions of his driver’s license and use alternative transportation such as Uber and taxi cabs to transport himself and clients. The granting of a provisional license appropriately balances the Department’s need to regulate applicants with Petitioner’s desire to better himself through the pursuant of professional success in the real estate field. RECOMMENDED ORDER Based on the foregoing, it is recommended that Petitioner be issued a two year provisional real estate salesperson’s license upon the effective date of the Order entered in this matter. 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 12, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

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