ALJDEC decisions subject to certification as final

18F-DI-178-REL · Department of Real Estate · 2018-04-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

BOWCUT, DONALD KEITH, holder of license number SA674662000 (Candidate),

Petitioner.

No. 18F-DI-178-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 20, 2018

APPEARANCES: Donald Keith Bowcut appeared, representing himself. Assistant Attorney General Ryan Krench represented the Arizona Department of Real Estate.

ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

On or about December 13, 2017, Donald Keith Bowcut (“Petitioner”) submitted to the Arizona Department of Real Estate (“Department”) an application form to be licensed as a Real Estate Salesperson, in which Petitioner answered “yes” to the following question:

Has the Applicant . . . .

12. Been convicted and/or entered into a plea agreement and/or a plea of NOLO CONTENDERE (no contest) to ANY felony in Arizona and/or any other state, whether or not the plea or verdict was set aside, judgment or sentencing was deferred, conviction was dismissed or expunged, or has been pardoned?

Accompanying the application was an explanation of the circumstances regarding that “yes” response. In the statement, Petitioner identified the relevant dates of those circumstances, specifying that he was convicted on one count of Aggravated DUI, a Class 4 felony, on January 23, 2015 and was sentenced to four (4) months incarceration, after which he was on probation until January 29, 2017. Petitioner further indicated that his civil rights and firearm rights had been restored as of July 17, 2017.

Petitioner’s background was not in dispute at hearing.

On or about December 20, 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, on his February 2015 conviction for Aggravated DUI (a Class 4 felony). The Department informed Petitioner that his conduct was considered to be a violation of A.R.S. § 32-2153(B)(2) and (B)(7). The Department notified Petitioner that it intended to deny his license application.

By letter dated January 20, 2018, Petitioner requested an appeal. He noted that, while the charge was made in 2014 and the conviction was in 2015, the incident giving rise to the conviction had occurred in October of 2011; through mistakes at the jurisdiction, he had not been charged until 2014. He noted that his record had been “squeaky clean” since 2011 and that since 2016, he had been operating a successful locksmith business. He further noted that due to his good character, he had been able to have the conviction set aside and have all his rights restored. Petitioner requested reconsideration of the matter.

At hearing, Petitioner openly and candidly explained the circumstances and emphasized his actions and work history since 2011. Petitioner had gone to real estate school when he was 20 years old, but had not, at that time, taken the requisite exams. He worked as a personal banker at Chase Bank from 2009 to 2014 where he assisted the public with financial transactions and became the assistant manager at his branch. Petitioner noted that his two-year old locksmith business had a 5-star rating on Google and an A-rating at the Better Business Bureau. Petitioner pointed out that his current locksmith business requires that he be of good character and honest as he is, essentially, given access to homes of customers.

While they did not testify at the hearing, several persons provided character reference letters: a friend and neighbor; a current licensed real estate salesperson for whom Petitioner had been a personal banker from 2010 to 2014 at his prior Chase Bank employment; and a long-time friend and police officer. Petitioner’s work history demonstrates a steady work history. Petitioner indicated that since he met the woman who became his wife, he has had significant behavior changes in that he no longer drinks like he used to when he was single, only occasionally having a drink. Petitioner further noted that his driver’s license had been revoked for three years and that he was in the process of having those rights restored.

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.

. . . .

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

The uncontested evidence established that, in 2015, Petitioner was convicted of a felony in violation of A.R.S. § 32-2153(B)(2), based on conduct that had occurred in 2011. The hearing record demonstrated that Petitioner engaged in only one incident in the last ten years that resulted in a conviction. The hearing record demonstrated that Petitioner’s life and work circumstances have changed since 2011; he now operates a small business with a good reputation in a business that mandates trust and honesty in order to maintain customers and obtain any referrals. The Administrative Law Judge concludes that Petitioner has demonstrated that he is a person of honesty, truthfulness, and good character.

The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. The Administrative Law Judge concludes that the Department should, at this time, reconsider its denial of application for Petitioner to become a real estate salesperson and consider the grant of a provisional license.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Department reverse its decision to deny Petitioner’s application for a real estate salesperson’s license at this time and grant 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, April 9, 2018

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate