ALJDEC decisions subject to certification as final

18F-DI-024-REL · Department of Real Estate · 2017-10-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

Cardenas, Joelle, holder of license number SA673143000 (Candidate),

Petitioner.

No. 18F-DI-024-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 26, 2017

APPEARANCES: Joelle Cardenas, Petitioner; Ryan Krench, Attorney for the Department of Real Estate; Shaun Cardenas, Commander Rebecca Fox, La Vada Brown, Stanley Brown, Joshua Brown, Jacob Brown, Petitioner’s witnesses; Wayne L. Jackson, Respondent’s witness; Susan Hack, observer

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

On appeal from the denial of her application for a real estate salesperson’s license, Petitioner was unable to establish that the decision to deny her application was not appropriate. Although Petitioner has determined to make changes in her life, and although it is clear that she has struggled with some very difficult issues, she still has unresolved warrants that raise legitimate concerns about whether she will subject herself to governance by the legal system and the licensing agency. Respect for and compliance with all applicable laws and regulations by licensees, regardless of any excuse or disagreement, is a factor that is of paramount importance to any licensing agency. Once Petitioner’s outstanding warrants are resolved, she will need to establish that the changes she has decided to make in her life have become enough of a habit that they are a permanent part of her character. While the efforts Petitioner has made to face her painful past are to be commended and encouraged, it would not be appropriate to issue her a real estate salesperson’s license at this time.

FINDINGS OF FACT

On July 19, 2017, Petitioner applied for an Arizona real estate salesperson’s license with the Arizona Department of Real Estate (“the Department”). In the application, Petitioner disclosed a history of involvement with the criminal system, which included a 2006 conviction of Misconduct Involving a Controlled Substance in the Fourth Degree, a felony, an August 2012 conviction of Attempted Hindering Prosecution in the First Degree, a misdemeanor, a 2013 conviction of Driving Under the Influence, a misdemeanor, an August 2013 conviction of Criminal Mischief in the Fourth Degree, a misdemeanor, and another August 2013 conviction of Criminal Mischief in the Fourth Degree, another misdemeanor.

For the last two offenses noted above, Petitioner was sentenced to 20 days in jail for each conviction, 2 years of probation, fines, and costs. Unfortunately, Petitioner opted not to serve either sentence. She left the State of Alaska where the convictions occurred instead. She still has not served either sentence.

Based on her criminal history, the Department issued an Intent to Deny Application Letter on July 28, 2017. Petitioner submitted a timely appeal from that letter, and the matter was set for hearing at the Arizona Office of Administrative Hearings, an independent State hearings agency.

The text of Petitioner’s appeal letter stated as follows:

I am writing this letter to appeal the Departments intent to deny my license based on violations to the Arizona Revised Statute 32-2153(A)(3), (B)(2), and (B)(7). I am also requesting an “Informal Settlement Conference”. I am appealing this decision based on discrepancies I have to the A.R.S. 21-2153(B)(2). It is my understanding that I have no felony “convictions”. The (7/13/2006 Class C felony for misconduct involving a controlled substance) conviction you lay out was never a conviction at all. It is my understanding, that felony conviction, based on conditions set forth by the courts in which I followed, was “set aside”. I also have discrepancies with the (8/27/2012 Class C felony for Attempted Hindering Prosecution in the first degree) conviction laid out in the Intent to Deny letter I received. The amended conviction on that charge is a Class A misdemeanor. Further more, I am able to prove Arizona Revised Statute (B)(7).

I am aware that my criminal past on paper does not look good. I struggled with drug addiction at a point in my life. Even as a drug addict I always considered myself to be an honest, and caring person. I was never out to fraud people, or steal, or scam people. I have always strived to be a good person. I don’t want the person I was while under the influence, to make the true person I am. I am a hard worker, and more importantly, a person people can rely on. Every charge in my past was a direct result of the drug abuse. The misdemeanor DUI conviction on 3/14/2013 was a turning point in my life where I decided to make drastic changes. I came to Arizona from a small town in Alaska, where drugs ran rampant. I associated myself with the wrong crowd of people. In 2013 I got sober, and left Alaska to ensure I was able to maintain that sobriety. I left everything I knew behind, quit talking to anyone in Alaska, got off social media, and began a fresh start here in Arizona.

While here in Arizona, I have been in no trouble. I have focused my attention on the prosperous future. Everything I have accomplished while in Arizona since the fall of 2013, has been to better myself, my family, and to give back to society for my mistakes. Aside from wanting to better my life for myself, it is important to me that I am there for, and am able to care for my family. I have a disabled brother, and my parents are getting older and dealing with medical issues. I have dedicated so much time, effort, and money into getting this license. I have read qualification for obtaining a real estate license, and nothing I have read should exclude me. I believe I am a great fit for this type of profession. Thank you for your time.

At the hearing, Petitioner testified that she committed her last criminal offense, for which she received the DUI conviction, was on March 13, 2013. She stated that since then she has made great changes in her life. She stated that she does not have a felony on her record, nor has she ever had convictions for a list of other crimes that she noted. She stated that she does have some criminal violations on her record, but she wanted to show that she is a person of honesty, truthfulness, and good character nonetheless.

Petitioner acknowledged that she did not serve the sentences entered against her for 2 of her convictions, but she noted that she has been trying to “resolve” them. She noted that it has been difficult to do, and she has not yet been able to resolve them, but she is continuing to work on this. She stated that she did complete her sentence for the DUI while in Arizona and completed it. She outlined several telephone calls and emails that she had or exchanged with attorneys and people from the Alaska Department of Corrections. She argued that she does not have a felony on her record because the sole felony she was convicted of was set aside.

Petitioner stated that, after receiving some bad information from one attorney, she contacted another one and began the process of requesting that the Alaska court system allow her to serve her sentence in Arizona. She said she found a company that does ankle monitoring here and would be willing to do it. She said that on September 18, 2017, she made a formal request to Alaska to change the terms of her sentence so she could complete it in this manner but she has not yet received an answer.

Petitioner testified that in 2013 she stopped doing drugs and underwent several urinalysis tests, which were all clean. She said that in March 2018, it will have been 5 years since she did drugs. She stated that she wants to teach her children that one can go on and achieve things in life despite one’s mistakes. She asked that the Department consider giving her a provisional license and testified that she has a potential employer who would be willing to oversee her work.

On cross examination, Petitioner admitted to the criminal convictions laid out by the Department in its Intent to Deny letter.

Petitioner’s brother, Jacob, testified that he wants Petitioner to take care of him when his parents die. Her ex-husband, Shaun Cardenas, testified that he was the victim in one of Petitioner’s criminal mischief convictions. He said he has known Petitioner 11 years, that they were married 4 years and are now divorced. He testified that she has always been a good person and that she is turning things around in her life now. He is aware of the outstanding warrants against her and believes she needs to take care of them, but he does not think any good would be served for her to serve them in Alaska because the cost of flying there would be a hardship. He also said they have 4 children here, so leaving Arizona to serve her time would be a hardship for the whole family.

Petitioner’s older brother, Joshua, testified that Petitioner has turned her life around enough that he is now willing and proud to say that she is his sister. He did not feel that way when she was actively using drugs and getting in legal trouble. Her parents both testified that she is turning her life around and that they plan to have her care for Jacob after they die. Commander Rebecca Fox, Petitioner’s former mother-in-law, testified that she has known Petitioner for about 11 years and sees her with her family. She said Petitioner has changed and is kind, honest, and caring.

Senior Investigator for the Department, Wayne L. Jackson, testified that the Department’s position to deny Petitioner’s application for licensure was based on (B)(7) and (B)(9) of A.R.S. § 32-2153. He noted that Petitioner has had 3 years to straighten out the 2 outstanding warrants against her and they are still outstanding. He noted that the warrants are a big concern for the Department.

In closing, the Department’s Attorney, Ryan Krench, argued that the Department’s decision to deny Petitioner’s application should be upheld based on A.R.S. § 32-2153(B)(7) and (9), though he withdrew the Department’s initial allegations of violation of A.R.S. § 32-2153(A)(3) and (B)(2) as not pertinent. He argued that Petitioner does have a felony conviction because it did happen and a court’s decision to set it aside does not change that fact. He noted that Petitioner has two outstanding warrants against her that she chose not to serve. He pointed out that it is not Petitioner’s choice where or whether to serve the sentences that have been imposed against her.

CONCLUSIONS OF LAW

The Commissioner of the Department has jurisdiction over Respondent and the subject matter in this case.

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

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

* * * *

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:

* * * *

7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character.

* * * *

9. Violated the terms of any criminal or administrative order, decree or sentence.

Petitioner did not dispute her criminal history. Her disagreement with the Department regarding whether she has a felony on her record was based on her legal argument that the judgment setting it aside means that it is no longer on her record. The Department withdrew its reliance on A.R.S. § 32-2153(B)(2), which concerns the conviction of a felony. Nevertheless, Petitioner was convicted of a felony, and that fact may still be considered by the Department when trying to determine whether she is a person of honesty, truthfulness, and good character. However, the incident occurred in 2005, and the conviction was in 2006. Given the passage of time and other considerations, it would not be recommended that the Department place a great deal of weight on this conviction.

Regarding Petitioner’s DUI conviction, she offered evidence that she complied with urinalysis testing the same year as the conviction, 2013, and the urinalysis results she provided were all clean. She also completed the DUI education classes she was sentenced to complete, but not until 2017.

Regarding the volume of criminal convictions against Petitioner, although there are several, it should be noted that they all, save one, were perpetrated between April 2012 and March 2013, which is a rather short period of time. It is fair to assume that Petitioner was experiencing a period of intense difficulties that appear to have been limited, at least in intensity, to that time in her life. An applicant with a background such as this may establish good character by demonstrating a clean ongoing legal record, in depth psychological treatment, community services, and other outward demonstrations of a good faith desire to change.

Petitioner’s greatest challenge in this matter is the fact that she chose to leave the State of Alaska without serving the sentences imposed on her by the Alaska District Court. In cases such as this, the Department would have a legitimate concern that the applicant may not be willing to subject themselves to outside authorities such as the legal system or the licensing agency. Therefore, until Petitioner complies with the legal judgments against her, even if she can manage to do so in Arizona, she will be in violation of A.R.S. § 32-2153(B)(9) because she is indeed in violation of 2 criminal sentences against her. It is not sufficient to establish that one has tried very hard to resolve a situation such as this because of the importance to the integrity of the real estate business that licensees can be trusted to follow the dictates, not only of the criminal law but of the laws, rules, and policies of the licensing agency. If the public cannot trust that licensees will, without exception, submit to the legal authorities placed by our society above them, the Department cannot meet its purpose, and licensing would be meaningless.

Once Petitioner’s sentences have been deemed by the Alaska District Court to have been satisfied, she will still have to establish the is a she person of truthfulness, honesty, and good character. As noted above, there are ways of proving this. However, common sense dictates that one cannot change overnight. Good character is shown by consistently good behavior over a period of time. Though it may start with a decision to change, it must be developed by habit.

Petitioner has only recently (since December 2016) begun addressing the sentences against her. Her demeanor at hearing while under cross-examination shows that facing her past is difficult and frustrating for her. The hard work and effort that she has invested in rehabilitating herself should be rewarded. However, it would not be appropriate for that reward to be given in the form of a real estate salesperson’s license. Until Petitioner is without any outstanding warrants and until she can show that she can maintain a lifestyle reflecting good character for a period of time that indicates such character has become her nature, it would not be appropriate to issue her a license, even a provisional one.

RECOMMENDED DECISION

Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that the Petitioner’s appeal be denied.

Done this day, October 6, 2017.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate