ALJDEC decisions subject to certification as final

17F-DI-270-REL · Department of Real Estate · 2017-08-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Original Application for Real Estate Salesperson License of:

HAILEY ROSE CREASON, holder of license number SA669403000 (Candidate),

Petitioner.

No. 17F-DI-270-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 25, 2017 with the record held open until August 8, 2017 to permit the parties time to attempt to resolve the matter.

APPEARANCES: Hailey Rose Creason (Petitioner) was represented by Eric Peterson, Esq. The Department was represented by Assistant Attorney Ryan Krench, Esq.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

FINDINGS OF FACT

On May16, 2017, 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 two misdemeanors for Driving under the Influence (DUI) and a misdemeanor for marijuana possession between September 2013 and May 2014.

In that application, Petitioner failed to include another misdemeanor conviction for possession of marijuana that stemmed from the same occurrence as one of her DUI convictions, but was handled by a different court. At hearing, Petitioner insisted she was not attempting to hide a conviction, but was simply confused about how the conviction was handled and forgot it was separate because her sentence ran concurrently with another offense.

On May 31, 2017, 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 multiple misdemeanor convictions including: 9/13/13 misdemeanor conviction for Possession of Marijuana, 5/12/2015 misdemeanor conviction for DUI, 5/15/15 misdemeanor conviction for DUI, 9/13/2013 misdemeanor conviction for Possession of Marijuana and your filing of a false or misleading application by falling to disclose your 9/13/2013 conviction.. 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)(1) and (B)(7).

Petitioner disagreed with the Department’s determination to deny her license application and requested an administrative hearing.

On September 22, 2014, Petitioner was convicted of Possession of Marijuana, a Class 1 Misdemeanor, Maricopa County Superior Court, case number CR2014-109526. Petitioner was sentenced to twelve (12) months of probation, restitution, fines and fees. On June 8, 2015, Petitioner was discharged from probation.

On May 12, 2015, Petitioner was convicted of DUI, a Class 1 Misdemeanor, Mesa Municipal Court, Docket Number [number redacted]. Petitioner was sentenced to ten days in jail with nine days postponed and one day to be served, fines, counseling and an ignition interlock device. The interlock device is scheduled to be removed on August 11, 2017.

On May 15, 2015, Petitioner was convicted of DUI, Alcohol, Drugs, Toxic Vapors or Combination, a Class 1 misdemeanor, Gilbert Municipal Court, Case Number 2015-CT- 0001304. Petitioner was sentenced to home arrest, counseling, fines and fees. On May 15, 2016, Petitioner was discharged from probation.

Out of the same DUI incident, Petitioner was convicted of Possession of Marijuana, a Class 1 Misdemeanor, Maricopa County Superior Court, case number CR2014-133218. Petitioner was sentenced to twelve (12) months of probation to run concurrent with probation in CR2014-109526. Petitioner was also assessed restitution, fines and fees.

At, hearing, the Department acknowledged that the manner in which Petitioner was charged for two different misdemeanors by two different courts stemming from the same occurrence was confusing and indicated that it was not continuing to pursue a finding that Petitioner had submitted a false and misleading application. The Department still contended that Petitioner lacked the good character, honesty and truthfulness necessary to be licensed as a real estate salesperson.

At the hearing, the Department offered the testimony of its Manager of Auditing and Investigations, Robin King (hereinafter Ms. King).

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 she has changed. King noted that Petitioner had made a string of poor decisions, which goes to the question of character. In addition, King found it significant that Petitioner’s last conviction had occurred just over two years ago. She opined that insufficient time had passed to ascertain if Petitioner had truly changed her ways.

Petitioner testified that she made some bad choices after high school, hanging with the wrong crowd, leading to the convictions. She indicated that she had changed and gone to work for her mother’s real estate business, Sun Dial Real Estate, LLC (Sun Dial). Petitioner commented she had never expected to like working there so much, especially managing property and helping with neighborhood initiatives in conjunction with the Mesa Police Department. Petitioner said she had worked hard to move on from her mistakes and now sought her real estate license to continue to advance.

Petitioner submitted reference letters from members of the Mesa Police Department she has worked with while attempting to clean up the apartment complex she helps manage, which the Administrative Law Judge has reviewed and considered. These references note that Petitioner has evicted problem tenants and fixed up the building, leading to a safer environment and fewer police calls to the apartment complex.

Diana Creason, Petitioner’s mother and the owner/designated broker of Sun Dial, testified that Petitioner is currently learning about property management, including evicting tenants and fixing squalor. She indicated that both the client who owns the apartment complex and the Mesa police are happy with the job Petitioner has done. She said that if she ever had information that Petitioner acted dishonestly, she would terminate her because she had too much invested in her business to do otherwise. She praised Petitioner for doing the work to move on from her mistakes and offered to serve as Petitioner’s practice monitor if Petitioner was granted a provisional license.

Julie Yance, a property manager and real estate sales person at Sun Dial, said that although she does not work directly with Petitioner, she has observed her to be a smart, hard-working employer. Yance indicated that Petitioner does not call in sick, is a fast learner and went to real estate school.

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:

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 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 convictions for DUIs and marijuana possession.

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 she has resolved the issues that led to the commission of the DUIs and possession of marijuana convictions 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 agreeing to be subject to a consent decree crafted by the Department that includes practice monitoring by Diana Creason. She has also had no problems with intoxicating substances despite working in a neighborhood where such substances are available. Petitioner has worked in property management and done community service cleaning up a blight on the community of Mesa. The granting of a provisional license appropriately balances the Department’s need to regulate applicants with Petitioner’s desire to better herself 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, August 14, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate