ALJDEC decisions subject to certification as final
18F-DI-102-REL · Department of Real Estate · 2017-12-05
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Original Application for Real Estate Salesperson License of:
LISAIUS, SOMCHAI P, holder of license number SA672824000 (Candidate),
Petitioner.
No. 18F-DI-102-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: November 21, 2017
APPEARANCES: Somchai P. Lisaius, Petitioner; Ryan Krench, Attorney for the Department of Real Estate; Wayne L. Jackson, Department representative; Jack Woolridge, witness; Susan Hack, observer
ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang
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On appeal from the proposed denial of his application for a real estate salesperson’s license, Petitioner has established that he should be allowed to be granted a provisional license on terms to be set by the Commissioner.
FINDINGS OF FACT
In September 2017, Petitioner applied to the Arizona Department of Real Estate (“Department”) for a real estate salesperson’s license.
On September 29, 2017, the Department issued Petitioner a letter titled Intent to Deny Application for Original Real Estate Salesperson’s License No SA6272824000 (“Notice”) informing Petitioner that the Department was denying his application for having a felony on his criminal record and failing to establish good character.
Petitioner and his wife had been arrested for using cocaine. Petitioner’s wife had breast fed their child after using it on the previous night and they rushed their child to the hospital. Petitioner testified that he knew on the way to the hospital that his career was over. Both Petitioner and his wife had been newscasters for a long time. Petitioner has completed his sentence and learned from it and asks that he be allowed to enter the real estate profession to provide a living for his family.
The Department’s witness testified that the Department’s concern is that Petitioner and his wife were using cocaine casually and it ultimately involved their child. He stated that the Department was not satisfied that Petitioner showed good character.
Petitioner submitted proof that he has received a fingerprint clearance card after an expedited review by the Arizona Board of Fingerprinting. He also submitted three reference letters and a Consent Order in another matter to show that the Department has a history of allowing some people with felony convictions to receive a license.
Petitioner also offered the testimony of Jack Woolridge, a Tucson Police Sergeant for almost 32 years and Petitioner’s wife’s god-father. He testified that he went to high school with Petitioner’s wife’s father and they are still good friends and socialize with their extended family about every 3 to 4 months. He testified that he and his wife were “hurt” when they learned of Petitioner and his wife being arrested. However, he said, he has seen that the couple has worked hard to redeem themselves and to take responsibility for their actions. He stated that he believes in the criminal justice system and its purpose of rehabilitating people and he believes that this is how it worked for Petitioner and his wife, that they have rehabilitated themselves. He said it is a big deal for him to give a character reference, but in Petitioner’s case, he is willing to do so because of how they met their challenge. He said Petitioner could have left his wife to suffer the consequences of using cocaine and exposing their child to it, but he opted to stand by her side and face the consequences with her. He said that he believes that, going forward, Petitioner will be a better husband and father and he trusts him enough that if he obtains his real estate license, Mr. Woolridge plans to have Petitioner sell it for him.
It is notable that as part of the consequences of their actions, Petitioner and his wife had their child removed from the home for a period of time.
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), 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).
According to the Department’s Notice, Petitioner’s license denial was based on A.R.S. § 32-2153(B)(2) and (7).
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
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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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F. For the purposes of this section:
1. "Letter of concern" means an advisory letter to notify a licensee that, while the conduct or evidence does not warrant other disciplinary action, the commissioner believes that the licensee should modify or eliminate certain practices and that continuation of the activities may result in further disciplinary action against the licensee.
2. "Provisional license" means a license that the department issues and that allows a licensee to practice subject to either a consent order as prescribed in section 32-2153.01 or the commissioner's terms, conditions and restrictions.
In this case, Petitioner and his wife did not show good character by ingesting illegal drugs. However, when Petitioner was arrested and convicted, he admitted wrongdoing and submitted to the judgment of the legal system, ultimately completing his sentence and being allowed to live with his daughter again. Petitioner also showed that he has earned back the respect of his family’s friend and former police officer, Jack Woolridge.
The Department is concerned about the casual use of drugs by Petitioner and his wife and the involvement of their child. Such concerns are legitimate considering the addictive nature of some drugs and the emotional needs that drive people to use them despite the very serious legal consequences meted out to illegal drug users. It is noted that having one’s child removed from the home must be a frightening and sobering experience, especially when coupled with losing one’s long standing career in such an embarrassing manner, but the Department has a duty to try to ensure that the public is not exposed to unscrupulous real estate salespeople and the only person who really knows an applicant deep down is the applicant him or herself. Therefore, it is recommended that Petitioner be allowed to obtain and provisional license, with terms to be determined by the commissioner. It is further recommended that the terms of Petitioner’s provisional license include drug testing through hair samples every 90 days for 5 years at Petitioner’s cost with consequences initiating if Petitioner misses retesting for a total of 20 days in any year long period. No other terms are recommended.
RECOMMENDED DECISION
Based on the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that this appeal be sustained insofar as Petitioner should be allowed to obtain a provisional license with terms to be determined by the Arizona Department of Real Estate Commissioner.
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, December 5, 2017.
/s/ Dorinda M. Lang
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate