ALJDEC decisions subject to certification as final

17F-DI-241-REL · Department of Real Estate · 2017-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate Salesperson License of:

MICHAEL L LYONS, holder of license number SA668871000,

Respondent.

No. 17F-DI-241-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 12, 2017

APPEARANCES: Michael L. Lyons, Respondent; Ryan Krench, Attorney for the Department of Real Estate; Wayne L. Jackson, Department witness

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

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Having heard the evidence and testimony of record and having considered the matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Commissioner of the Arizona Department of Real Estate.

FINDINGS OF FACT

The Arizona Department of Real Estate (“Department”) issued Real Estate Broker’s License No. SA668871000 to Michael L. Lyons (“Respondent”) on November 15, 2016.

On April 19, 2017, the Department issued an Order of Summary Suspension and Notice of Opportunity for Hearing. Respondent requested a hearing in the matter, which was set before the Arizona Office of Administrative Hearings, an independent State hearings agency.

At the hearing, the Department argued that Respondent’s license should be revoked.

In support of its argument, the Department offered the testimony of Wayne L. Jackson, Senior Investigator. Investigator Jackson testified regarding the basis of the Department’s action, which consists of Respondent’s two convictions on March 23, 2017 of two Class 6 felonies that are classified as domestic violence offenses. The fact of the felonies was not disputed by Respondent.

Respondent was convicted of Attempt to Commit Stalking and Aggravated Harassment. Based on the two convictions, the Department argued that it is authorized to revoke Respondent’s license under A.R.S. § 32-2153(B)(2), (7), and (10) as well as A.R.S. § 32-2153(A)(3).

Respondent requested that his license not be revoked because of the facts surrounded the incidents that lead to his convictions. He testified that he did have an incident with his ex-girlfriend after they broke up and that, after she obtained an order prohibiting him from contacting her, he did contact her again, violating the order. In his defense, he argued that he was receiving several mixed signals from her in that she continued to contact him and to seemingly keep his hopes alive for a reconciliation.

To his credit, Respondent was honest about the convictions. However, he said some things at hearing and did some things that should be of concern to a licensing agency.

After they had broken up but prior to the court order prohibiting contact, Respondent went to his ex-girlfriend’s house to confront her regarding his suspicion that she was seeing someone else. He stated that he used his key to enter the home because he had it. Respondent did not seem to realize how inappropriate this was. Merely having a key does not authorize anyone to enter someone else’s home and Respondent mentioned this excuse for entering without any indication at all that he understands this. He also acknowledged that she was upstairs sleeping in her bedroom when he entered and she did not know that he was there.

In his written statement, Respondent stated, in relevant part, “She originally accused me of having a knife however there was nothing ever around her.” When asked to explain this statement, Respondent testified that he went into the home, and, while his ex-girlfriend was sleeping in her room upstairs and unaware that he was there, he took a piece of cake from the kitchen and walked up the stairs eating the cake off of a cake knife. He then surprised her in her bedroom. He stated that she saw the knife in his hand and said something about it, and at that point he put it down on the nightstand. He also said her bedroom is very large, implying that the presence of the knife would have been less threatening due to physical distance. He claimed that he was never a danger to her and has never been in any way a violent person. However, Respondent acknowledged that he went to the home to confront his ex-girlfriend about possibly seeing someone else. The Administrative Law Judge would have to be a complete idiot to believe that Respondent went to someone else’s homes surreptitiously as they slept, for the purpose of confronting a possible rival, but only took a knife from their kitchen with him because he alone in all the civilized world eats cake right off of a knife while he’s wandering around another person’s home as they sleep. Respondent’s professed confusion over his ex-girlfriend’s fear for her life is equally ridiculous and unconvincing.

Respondent also stated many times during the hearing that the reason he was convicted was because he hired the wrong lawyer. Considering the odd and illegal behavior that Respondent admitted to himself, blaming his convictions on his attorney does not indicate that he is fully aware of the part he played in his own fate. It also appears that Respondent has a very unusual understanding of what would be considered an appropriate argument to make in a hearing. The burden of proof in a criminal court is beyond a reasonable doubt, so anyone who believes that the cause of their criminal conviction was failure to hire the right attorney has a heavy burden to establish that this was indeed their problem. Rather than offering any legal or factual basis for believing that his attorney’s actions caused his convictions, Respondent admitted his crimes. It is hard to imagine how an attorney can be the cause of one’s convictions when one acknowledges committing the crimes.

Respondent also offered his opinion that he thought he was over-prosecuted and he found it surprising that the judge would not even listen to the reasons he did what he did. Apparently Respondent believed that his personal feelings of confusion and being misled by his ex-girlfriend should have been acceptable legal excuses that justify a gentleman’s decision to harass and attempt to stalk another person. Clearly, Respondent had not matured beyond this outrageous assumption by the time of the hearing.

Respondent offered into evidence 6 letters of support from people who have known him to be a good friend and a responsible person. The letters were all from people who knew Respondent from 5 to 20 years, and they include a letter of support from his ex-wife. However, although Respondent may have many fine qualities, nothing in the letters could explain Respondent’s behavior toward his ex-girlfriend to sufficiently reassure the Commissioner that Respondent would not act inappropriately if he found himself in a similar situation in the future.

Respondent’s supporters offered such explanations for Respondent’s troubles as Respondent being too trusting or wearing his heart on his sleeve. Some of them appeared to believe that Respondent’s ex-girlfriend was somehow responsible for his behavior. However, an attitude about human behavior that is so naïve as to hold that one person can be responsible for another person’s behavior does not inspire trust, and those portions of the letters of support were not helpful to Respondent.

Nevertheless, the Department’s action to revoke Respondent’s license was not a condemnation of his entire personality. The Department has merely taken the position that Respondent’s two felonies indicate that he does not meet all of the requirements for a real estate license holder. The concerns about Respondent’s belief that he could enter his ex-girlfriend’s home simply because he had the key, his reasons for going there and his actions while there, his need to blame his attorney for his convictions, his odd belief that blaming his attorney could be a convincing argument in a hearing, and his insistence that he was not responsible for the crimes he committed because the judge should have considered what his victim did to encourage him became clear during the course of Respondent’s defense during the hearing.

CONCLUSIONS OF LAW

The Commissioner of the Department has jurisdiction over Respondent and the subject matter in this case pursuant to A.R.S. § 32-2107.

Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B), the Department 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.R.S. § 32-2153(A) and (B) provide, in pertinent part, as follows:

32-2153. Grounds for denial, suspension or revocation of licenses; letters of concern; provisional license; retention of jurisdiction by commissioner; definitions

A. 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, within five years immediately preceding, in the performance of or attempt to perform any acts authorized by the license or by this chapter, has:

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3. Disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner.

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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 when it appears that the holder or applicant has:

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2. Been convicted in a court of competent jurisdiction in this or any other state of a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense.

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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.

The evidence of record established that Respondent violated A.R.S. § 32-2153(B)(2) because he was convicted of a felony by a court of competent jurisdiction and, in fact, he was convicted of two felonies.

The evidence also established that Respondent violated A.R.S. § 32-2153(B)(10) because he violated State law relating to violence against another person because his two felonies were classified as domestic violence offenses.

The evidence also established that Respondent violated A.R.S. § 32-2153(B)(7) by not showing that he is a person of honesty, truthfulness, and good character. While Respondent was at times honest and truthful in his testimony, it was not shown that he was honest and truthful in stating that he had no nefarious intent when he went into his ex-girlfriend’s home without her knowledge and took a cake knife to her bedroom because he suspected that she was seeing someone else. He was not honest and truthful in claiming that he was convicted because he hired the wrong attorney. He did not show that he was a person of good character when he entered his ex-girlfriend’s home with his key after they had broken up on the flimsy excuse that he “had it” (the key), and this is especially disconcerting in the case of a real estate agent because they often “have” the keys to others’ homes in the normal course of business. He did not show good character when he took a knife from his ex-girlfriend’s kitchen into her bedroom to see if she was with another man. He did not show good character when he committed the two felonies. He did not show good character when he took the position that something his victim did should have been considered in his defense in his criminal cases. He did not show good character when he appeared at his hearing and blamed his lawyer for his convictions. He did not show good character when he implied that his ex-girlfriend was exaggerating the situation when she said she was afraid for her life after he crept into her home and woke her up with a knife.

No additional violations of the rules or Chapter 20 of Title 32 were established at hearing such that A.R.S. § 32-2153(A)(3) was implicated.

The Department has established that License No. SA668871000 should be revoked for the above stated reasons. If Respondent should choose to reapply for a real estate license in the future, he must do so in accordance with A.R.S. § 32-2131.

RECOMMENDED ORDER

It is ordered that License No. SA [number redacted] shall be revoked on the effective date of the Order 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, June 22, 2017.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate