ALJDEC decisions subject to certification as final
17F-13245-BOA · Division of Real Estate Appraisal · 2017-06-27
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Denial of the Certified General Appraiser License Application of:
THOMAS OAKLEY
#AG13245
Petitioner.
No. 17F-13245-BOA
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 21, 2017
APPEARANCES: Thomas Edward Oakley (“Petitioner”) appeared on his own behalf; Assistant Attorney General Shane Foster for the Arizona Department of Financial Institutions (“Department”), of which the Board of Appraisal is now a part.
ADMINISTRATIVE LAW JUDGE: Suzanne Marwil
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1. On December 27, 2016, the Department received an application for a Certified General Appraiser license (“Application") from Petitioner.
2. Petitioner answered “Yes” to Question 1 of the Application, which asked:
1) Have you ever been charged with, convicted of or pled nolo contendere (no contest) to a criminal offense, other than a minor traffic violation, in this or in any other jurisdiction (i.e., locality)? You must answer “YES” even if you received a pardon, the conviction was set aside, the records were expunged, your civil rights were restored, and whether or not a sentence was imposed or suspended.
3. As part of submitting the Application Petitioner applied for a level one fingerprint clearance card with the Department of Public Safety. See Exhibit 4. The Department of Public Safety reviewed Petitioner’s past criminal history and he answered some questions about the same. Ultimately, the Department pf Public Safety issued Petitioner his fingerprint clearance, leading him to believe he was on the path to becoming a certified general appraiser in Arizona.
4. Notably, Petitioner testified that the Department of Public Safety did not ask him about his conviction for felony perjury. At hearing, Petitioner explained that his perjury conviction stemmed from his applying for and obtaining a California driver’s license under the name Thomas Edward Kingsley after his California drivers’ license had been revoked for life following a road rage incident.
5. During the Application process, Petitioner gave Deborah Rudd, a Department employee, a copy of an Administrative Law Judge’s Decision in California (Exhibit 5) that denied Petitioner an Appraiser license in California following the competition of his prison term for perjury. Petitioner’s previous appraiser license in California expired while he was in prison. In pertinent part, that Decision concluded as follows:
Cause exists to deny Respondent's application for a real estate appraiser license, pursuant to Regulation section 3721, subdivision (a)(2), on the grounds that Respondent committed an act involving dishonesty, fraud, or deceit with the intent to benefit himself by presenting police officers with his fraudulently obtained unrestricted California driver's license while failing to disclose his surname “Oakley,” under which he had a suspended driver's license and a prior history of convictions . . .
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Although Respondent's perjury conviction is fairly remote in time, the dishonesty inherent in his acts leading to that conviction is conduct plainly contrary to the fundamental honesty and truthfulness required of a real estate appraiser. Respondent's act of failing to disclose to police the fact that he had a driver's license another name with a long history of suspensions showed that he was still acting dishonestly years after he had fraudulently obtained the new license. He also used that fraudulently obtained license for years in the course of his work as an appraiser. Respondent's candor and sincere remorse evidence a commendable maturity and seriousness. However, aside from his recent history of not sustaining any further convictions, he provided no other evidence of his rehabilitation under the Bureau's applicable criteria, nor did he provide any evidence from others who could have attested to his character (Legal Conclusion 7.) As a result, Respondent did not show sufficient rehabilitation to overcome the multiple causes for denial of licensure the Bureau sustained.
6. On March 24, 2017, the Department denied the Application based on Petitioner’s failure to meet the minimum criteria for licensure set forth in A.R.S. § 36-3620(A). The denial letter explained: “Specifically, records indicate that you have been convicted of multiple felonies, including one felony conviction for perjury.”
7. After issuance of the denial letter, Petitioner appealed the Department’s determination regarding the Application (See Exhibit 3), resulting in hearing being set before the Office of Administrative Hearings.
9. Petitioner testified that he had paid his debt to society for his crimes, had his convictions expunged and should be given a chance to prove himself. Petitioner believed that the Department of Public Safety’s fingerprint clearance meant his convictions have been looked at and he was approved as an appraiser. He found the Department’s belated raising of objections and requests for more information to be very frustrating, particularly because he almost expended significant funds to take classes at the Department’s request.
10. Mark Murphy, the Department’s licensing manager, testified that the purpose of a fingerprint clearance card is to assist the Department in assessing applicants and was not intended to divest the Department of its discretion to determine that applicants who commit felonies may in certain circumstances be denied an Appraiser license. Mr. Murphy stressed that honest and integrity are essential attributes of an appraiser given that consumers and other parties must rely on an appraisers’ valuations. Mr. Murphy indicated that the Department had determined that Petitioner should not have a Certified General Appraiser license in view of his felony perjury conviction for many of the same reasons expressed by the California Administrative Law Judge.
CONCLUSIONS OF LAW
1. A.R.S. § 32-3620 A) provides that “[t]he board may deny the issuance of a license or certificate as a state licensed or state certified appraiser to an applicant who has been convicted of a felony or on any of the grounds prescribed in this chapter.”
2. A.R.S. § 32-3631(A) provides:
The rights of an applicant or holder under a license or certificate as a state licensed or state certified appraiser may be revoked or suspended or the holder of the license or certificate may otherwise be disciplined in accordance with this chapter on any of the grounds set forth in this section. The board may investigate the actions of a state licensed or state certified appraiser and may revoke or suspend the rights of a license or certificate holder or otherwise discipline a state licensed or state certified appraiser for any of the following acts or omissions:
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5. An act or omission involving dishonesty, fraud or misrepresentation with the intent to substantially benefit the license or certificate holder or another person or with the intent to substantially injure another person.
3. Petitioner has the burden of proving by a preponderance of the evidence that the denial of the application should be reversed. See A.R.S. § 41-1092.07(G)(1); and A.A.C. R2-19-119.
4. 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 “evidence 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).
5. The weight of the evidence of record established that Petitioner has been convicted of felonies, including the felony of perjury. In addition, the record showed that Petitioner perjury conviction stemmed from his desire to obtain a driver’s license to which he was not legally entitled so that he could drive and work as an appraiser in California.
6. The mere fact that the Department of Public Safety issued Petitioner a fingerprint clearance card does not change the analysis or erase the perjury conviction. The Administrative Law Judge concurs with the Department that the fingerprint clearance card in simply a tool to assist the Department in exercising its discretion to decide whether to grant or deny a Certified General Appraiser license. Such a clearance certainly does not and should replace the Department’s discretion, especially where as here, the testimony was that the Department of Public Safety did not even consider the Petitioner’s perjury conviction.
7. The weight of the evidence of record established that pursuant to A.R.S. §§ 32-3620(A) grounds exist for the Board to deny the Application.
8. Petitioner failed to meet his burden of proving by a preponderance of the evidence that he is qualified to hold a Certified General Appraiser license or that the Department’s determination to deny the Application should be reversed.
ORDER
Based on the above, the Department’s denial of the Application should be affirmed.
Done this day, June 27, 2017.
/s/ Suzanne Marwil
Administrative Law Judge
Transmitted electronically to:
Robert D. Charlton,
Arizona Department of Financial Institutions