ALJDEC decisions subject to certification as final
18F-DI-154-REL · Department of Real Estate · 2018-02-12
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Original Application for Real Estate Salesperson License of:
TRAVIS JAY DRYSDALE, holder of license number SA669510000 (Candidate),
Petitioner.
No. 18F-DI-154-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: January 23, 2018
APPEARANCES: Petitioner appeared on his own behalf. The Arizona Department of Real Estate was represented by Assistant Attorney General Ryan Krench.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
On or about November 15, 2017, Petitioner Travis J. Drysdale submitted to the Arizona Department of Real Estate (Department) a Salesperson Application Form to be licensed as a real estate salesperson, in which Petitioner answered “yes” to the following question:
Has the Applicant . . . .
13. Been convicted or entered into a plea agreement or a plea of NOLO CONTENDERE (no contest) to ANY misdemeanor in Arizona or any other state, whether or not the plea or verdict was set aside, judgment or sentencing was deferred, the conviction was dismissed or expunged, or has been pardoned?
Petitioner also submitted a disclosure statement to the Department identifying several arrests and convictions. In the statement, Petitioner detailed events occurring on or about June 14, 1997, December 10, 2010, November 15, 2011, and February 16, 2014.
According to the court records obtained and presented by the Department, Petitioner’s criminal history as it relates to the instant matter consisted of the following:
On or about March 6, 2000, Petitioner entered a plea of guilty to and was convicted of Insurance Fraud, a felony, in the Court of Common Pleas of Allegheny County, Pennsylvania, Criminal Action Number 9611202. Petitioner was sentenced to nine months of unsupervised probation and fines. The offense was committed in 1996.
On or about August 17, 2011, Petitioner entered a plea of guilty to and was convicted of Acquire or Obtain, or Attempt to Acquire or Obtain, Possession of a Controlled Substance by Fraud, a felony, in District Court, Clark County, Nevada, Case Number C271627-1. Petitioner was sentenced to the Nevada Department of Corrections for a maximum term of 48 months with a minimum parole eligibility of 12 months; suspended period of probation not to exceed five years. Petitioner was discharged from probation on October 6, 2014.
On or about February 2, 2012, Petitioner entered a plea of guilty to and was convicted of Possession or Use of a Controlled Substance, a felony, in the Fifth Judicial District Court, Iron County, Utah, Case Number [number redacted]. Petitioner was sentenced to 90 days in jail, fines, and probation. Petitioner was discharged from probation on August 14, 2013.
On or about June 2, 2014, Petitioner entered a plea of guilty to and was convicted of Extreme DUI and Interfering with a Police Officer, both misdemeanors, in Gilbert Municipal Court, Arizona, Case Number 2014CT2461. Petitioner was sentenced to probation.
On or about November 21, 2017, the Department sent Petitioner, via certified mail, an Intent to Deny Application for Original Real Estate Salesperson’s License, in which the Department informed Petitioner that, based on his application, it had concluded that he did not meet the qualifications for licensure pursuant to A.R.S. §§ 32-2123, 32-2124, and 32-2153. The Department informed Petitioner that its conclusion was based in part, but not exclusively, based in part on his misdemeanor convictions detailed above. The Department informed Petitioner that his conduct had violated A.R.S. §§ 32-2153(B)(2), (5), (7) and (10). Therefore, the Department notified Petitioner that it intended to deny his license application.
On or about November 30, 2017, Petitioner requested an appeal.
At hearing, Petitioner admitted he did not keep adequate records relating to a small business he operated and that when he reported some items stolen, he did not have the appropriate documentation to support those claims. When notified he could be charged with fraud, Petitioner withdrew the insurance claim and believed the matter was resolved. Petitioner also stated that he had been involved in a car accident and had become addicted to painkillers prescribed to him. Petitioner indicated he was unable to get a refill over the weekend and forged a prescription. Petitioner testified that he was on his way to court for the fraudulent prescription when he was pulled over for speeding and was found to have Seroquel in the car. Petitioner acknowledged he was driving while intoxicated when he was stopped by an officer and he refused to get out of the car. The officer ended up breaking out his car window and shooting pepper spray at Petitioner. Petitioner stated that he had grown up and had changed his ways. Petitioner acknowledged that he would not have given himself a license five or seven years ago.
CONCLUSIONS OF LAW
The Department bears the responsibility to protect the public through its enforcement of licensing statutes. This matter lies within its jurisdiction.
Petitioner bears the burden of proof and must establish that he meets statutory qualifications for a real estate salesperson’s license by a preponderance of the evidence.
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”
A.R.S. § 32-2153 provides in relevant part 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 when it appears that the holder or applicant has:
. . . .
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.
. . . .
5. Been guilty of any conduct, whether of the same or a different character than specified in this section, which constitutes fraud or dishonest dealings.
. . . .
7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character.
. . . .
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 weight of the evidence presented at hearing established that Petitioner was convicted in a court of competent jurisdiction of a felony charge of fraud or dishonest dealings in violation of A.R.S. § 32-2153(B)(2), (5), and (10).
Rather than decreasing over time, Petitioner’s crimes became increasingly more serious and demonstrated that he was not a not a person of honesty, truthfulness, or good character in violation of A.R.S. § 32-2153(B)(7).
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.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that the Department affirm its decision to deny Petitioner’s application for a real estate salesperson’s license at this time and dismiss this appeal.
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, February 12, 2018.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate