ALJDEC decisions subject to certification as final

16F-DI-257-REL-res · Department of Real Estate · 2016-07-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 28, 2016 APPEARANCES: Amanda Michelle Maestas (Petitioner) represented herself. The Department was represented by Assistant Attorney Ryan Krench, Esq. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT On April 7, 2016, Petitioner submitted an application for a real estate salesperson’s license to the Arizona Department of Real Estate (hereinafter Department). In her application, Petitioner acknowledged that she had had been convicted of assault, a class one misdemeanor, in Flagstaff Municipal Court on June 19, 2008. On April 12, 2016, the Department issued an Intent to Deny Letter, informing Petitioner that she 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 June 19, 2008 conviction for assault, a class 1 misdemeanor. The Department considers your conduct to have violated Arizona Revised Statutes and/or Arizona Administrative Codes, including, without limitation: A.R.S. § 32- 2153 (A)(3) and (B)(10).

Petitioner disagreed with the Department’s determination to deny her license application and requested an administrative hearing. On or about June 19, 2008, Petitioner pled guilty to and was convicted of assault, a class one misdemeanor in Flagstaff Municipal Court, case number CR2008001283. Petitioner was fined $300.00. At the hearing, the Department offered the testimony of investigator James Ledwith (hereinafter Mr. Ledwith). Mr. Ledwith testified that although the Petitioner claimed to have had no further problems with the law since she was a senior in college, the Department did not change its position with regard to its intent to deny Petitioner’s application based on her having violated state law involving violence against a person. The Department stated that it had offered Petitioner the option of accepting a provisional license, which she declined, leading the Department to oppose the granting of an unfettered real estate salesperson’s license to Petitioner and to request that the denial of her license application be affirmed. Petitioner testified that she has worked hard and come a long way as the general manager of an apartment complex, but requires a real estate salesperson license in order to advance to managing multiple properties. Petitioner explained the circumstances surrounding her misdemeanor assault conviction, beginning with a choice to go to a bar with her cousin Kara where they began to argue and ending with Petitioner kicking the bouncer who restrained her when he hiked her skirt and shirt up, leaving her exposed. Petitioner indicated that she deserved an unfettered real estate salesperson’s license based on her years of work and charitable activities in the city of Flagstaff. She noted that if she had to do so, she would accept a provisional license and request that a broker who works at Petitioner’s former employer serve as her practice monitor. Petitioner submitted letters of reference regarding her character, which have been reviewed and considered. 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:

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. (Emphasis added).

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 she 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 conviction for assault. The conviction of a crime is not a permanent bar to being licensed. However, Petitioner has the burden of proving by the preponderance of the evidence that she has resolved the issues that led to the commission of the assault to establish that she has sufficient good character and reputation to satisfy the statutory requirement for licensure as a real estate salesperson. Petitioner has met this burden with her testimony and agreeing to be subject to a consent decree crafted by the Department that includes practice monitoring by a licensed broker. The granting of a provisional license appropriately balances the Department’s need to regulate applicants with Petitioner’s desire to better herself by obtaining a real estate salesperson’s license. 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 29, 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