ALJDEC decisions subject to certification as final

18F-DI-209-REL · Department of Real Estate · 2018-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

HARTNETT, BRENDAN GARRETH, holder of license number SA676303000 (Candidate),

Petitioner.

No. 18F-DI-209-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 29, 2018, with the record held open until April 9, 2018

APPEARANCES: Petitioner Brendan Garreth Hartnett 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 January 23, 2018, Petitioner Brendan Garreth Hartnett 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 November 2, 2014, April 17, 2015, February 3, 2016, and June 27, 2016.

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 December 2, 2014, Petitioner entered a plea of guilty to and was convicted of DUI/.08, 1st Offense, a misdemeanor, in the County Court of Lancaster County, Nebraska, case number CR14-19114. Petitioner’s license was revoked for six months and he was sentenced to seven days incarceration, fines, and fees. In lieu of incarceration, Petitioner was allowed to serve seven days of house arrest. Petitioner was also required to install an ignition interlock device on his vehicle.

On or about August 6, 2015, Petitioner entered a plea of guilty to and was convicted of Driving During Revocation, a misdemeanor, in the County Court of Douglas County, Nebraska, case number CR15-9914 for conduct that occurred on April 17, 2015. Petitioner was ordered to pay a fine and his license was revoked for one year.

On or about April 20, 2016, Petitioner entered a plea of guilty to and was convicted of Driving During Revocation, a misdemeanor, in the County Court of York County, Nebraska, case number CR16-57 for conduct that occurred on February 3, 2016. Petitioner was sentenced to two days in the York County Jail and fines and his license was revoked for one year.

On or about June 27, 2016, Petitioner entered a plea of guilty to and was convicted of Attempted Possession of a Controlled Substance To Wit: Hashish, a misdemeanor, and Possession of Paraphernalia, an infraction, in the County Court of Dawson County, Nebraska, case number CR16-100. Petitioner was sentenced to fines and fees.

On or about January 26, 2018, 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 convictions detailed above. The Department informed Petitioner that his conduct had violated A.R.S. §§ 32-2153(B)(7) and (9). Therefore, the Department notified Petitioner that it intended to deny his license application.

On or about February 1, 2018, Petitioner requested an appeal.

At hearing, Petitioner acknowledged that he had made mistakes in his recent past while he was in college. Petitioner asserted that he moved from Nebraska to Arizona to change his lifestyle. Petitioner stated that since moving to Arizona he had not even been to a bar. Petitioner indicated that he had started reading books, including Think and Grow Rich and How to Win Friends and Influence People, that had given him a new purpose in his life. Petitioner stated that he was now concerned with and making plans for his future.

Petitioner presented the testimony of family and coworkers regarding his character and the changes he has made in his life.

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:

. . . .

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 was convicted in four separate cases over a period of 18 months. His most recent conviction was less than two years ago. While Petitioner maintained he had made some changes to his lifestyle, insufficient time has passed to determine if those are long-term changes or merely transitory.

Petitioner’s crimes 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).

Twice, Petitioner was convicted of Driving During Revocation establishing that he violated the terms of a criminal or administrative order, decree, or sentence in violation of A.R.S. § 32-2153(B)(9).

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, April 26, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate