ALJDEC decisions subject to certification as final
17F-DI-224-REL · Department of Real Estate · 2017-06-26
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Original Application for Real Estate Salesperson License of:
JESSICA GORMAN MORRISON, holder of license number SA670645000 (Candidate),
Petitioner
No. 17F-DI-224-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 6, 2017
APPEARANCES: Jessica Gorman Morrison appeared on behalf of herself. Assistant Attorney General Ryan Krench appeared on behalf of the Arizona Department of Real Estate.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
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FINDINGS OF FACT
On or about March 29, 2017, Petitioner filed a real estate salesperson’s license with the Arizona Department of Real Estate, (hereinafter “Department”). In her application, Petitioner acknowledged that she had convicted of two DUIs, two felonies and one misdemeanor.
In 2003, Petitioner was convicted of Driving Under the Influence and/or Reckless Driving.
On or about November 19, 2007, Petitioner was convicted of the misdemeanor of Driving Under the Influence in Phoenix Municipal Court, complaint number 13641641. Petitioner was sentenced to incarceration, probation and ordered to pay fines. On January 3, 2011, Petitioner was found to have violated the terms of her probation.
On or about February 7, 2008, Petitioner was convicted of Posession od Drug Paraphernalia, a class 6 undesignated felony, under Maricopa County Superior Court case number CR2007-127148-001 DT. Petitioner was sentenced to probation and ordered to pay restitution, fines and fees. The conviction was based upon the April 28, 2007 arrest.
On or about March 2, 2010, Petitioner was convicted of Driving on a Suspended License, a misdemeanor, Phoenix Municipal Court complaint number 13956650.
On October 8, 2010, Petitioner was convicted of Aggravated Driving or Actual Physical Control While Under the Influence of Intoxicating Liquor or Drugs, a class 4 felony, under Maricopa County Superior Court case number CR2009-008380-001 DT. Petitioner was sentenced to incarceration and probation, and ordered to pay restitution, fines and fees. The conviction was based upon an April 28, 2007 arrest but was not prosecuted for several years.
On or about April 6, 2017, the Department issued an Intent to Deny Letter informing Petitioner that she did not possess the qualifications for licensure. The letter provides, 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 convictions in 2007 for Misdemeanor DUI; 2007 felony for Drug Paraphernalia; 2009 misdemeanor for Driving on a Suspended License and 2009 felony for Aggravated DUI (3rd). 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)(2) and (B)(7).
On or about April 12, 2017. Petitioner filed a Notice of Appeal
to the Department’s April 6, 2017 Intent to Deny Letter.
At hearing, Petitioner initially testified that she had not consumed
alcohol in the last two years. Later in the hearing, Petitioner admitted that she last consumed alcohol last year.
10. Petitioner testified that she is now a responsible person. Petitioner testified that she has attended Alcoholics Anonymous meetings.
11. Petitioner provided the testimony of several character witnesses in support her case.
12. Gray Morrison III testified that he works in sales for a construction company. He testified that he does not believe that Petitioner will get another DUI conviction. He stated that he does not believe that Petitioner is a danger to public safety. He testified that Petitioner is more honest than most people. Mr. Morrison testified that he believes that Petitioner is dedicated to her recovery. He also testified that he would hire Petitioner to sale his home.
13. Kerry Eaves testified that she has known Petitioner for the last year. Ms. Eaves testified that Petitioner is an honest and disciplined person. Ms. Eaves testified that she would hire Petitioner to represent her in a real estate transaction.
14. Scott Johnson, Petitioner’s boyfriend, testified that Petitioner is honest and trustworthy. He stated that he has never seen Petitioner break the law. Mr. Johnson testified that he is a mortgage lender. Mr. Johnson testified that he would send his clients to Petitioner.
15. Petitioner’s father, Gray Morrison, testified that he believes that Petitioner has learned from the mistakes of her past and possess good moral character to become a real estate salesperson.
16. Petitioner provided the testimony of several other character witnesses
who testified that Petitioner is a person of good moral character and they would hire her to represent her in a real estate transaction. Petitioner requested that he be granted a provisional license, if she is not granted a Real Estate Salesperson’s license.
17. The Department’s position is that insufficient time has passed to allow
Petitioner to establish that she has changed her character. The Department contended that Petitioner should be denied a real estate salesperson’s license due to her criminal convictions.
CONCLUSIONS OF LAW
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).
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).
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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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.
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.
Petitioner contended that she currently is a person of good character. In
support of that contention, Petitioner testified on her own behalf and presented the testimony of several character witnesses.
8. Under all of the circumstances, although Petitioner has presented
evidence that he has altered her 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 herself to be truthful and honest, she 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).
9. In addition, the uncontested evidence established that Petitioner was
convicted of a drug felony and DUIs, in violation of A.R.S. § 32-2153(B)(2).
10. 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.
11. Petitioner failed to meet her burden of proof to establish that she 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.
Done this day, June 26, 2017.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate