ALJDEC decisions subject to certification as final

18F-DI-258-REL · Department of Real Estate · 2018-05-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

McCOMMONS, CHERIE RENEE, holder of license number SA673857000 (Candidate),

Petitioner.

No. 18F-DI-258-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 22, 2018, at 1:00 p.m.

APPEARANCES: Cherie Renee McCommons (“Petitioner”) appeared on her own behalf; the Arizona Department of Real Estate (“the Department”) was represented by Ryan Krench, Esq., Assistant Attorney General.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Petitioner’s Application

On or about March 1, 2018, Petitioner filed an application to be licensed as a real estate salesperson with the Department. Petitioner answered “yes” to the following question on the application: “Has the Applicant . . . [b]een convicted or entered into a plea agreement or a plea of NOLO CONTENDRE (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 attached to her application for a real estate salesperson’s license a written explanation of her “yes” answer that stated that the offense had occurred on October 1, 2008, and explained the conviction in relevant part as follows:

The offense is writing a bad check. The actual offense occurred just under 10 years past, however for some reason for which I have no explanation, it was not properly adjudicated until 2012. The circumstances around the original offense were simply that I was a single mother, widowed and was working multiple jobs to make ends meet. My husband did not have life insurance, and so the bills were overwhelming. I simply made an error in my checkbook causing a landslide of charges and making it difficult to repay.

I have been assigned fees associated with this amount owed, and my current job of pharmacy technician does not allow me to get this paid off. A career in Real Estate would make it possible to pay this off and have this behind me.

Petitioner also attached to the application a printout for Tucson Justice Court Case No. CR09-901442A01 that showed that Petitioner had committed the offense of issuing a bad check on October 1, 2008, and had entered into a plea agreement on January 23, 2009, but that the matter was not terminated until October 2, 2012.

On March 9, 2018, the Department informed Petitioner via certified mail that based on her conviction of passing a bad check on January 23, 2009, it had concluded that she did not meet the qualifications for licensure pursuant to A.R.S. § 32-2153(B)(5), (B)(7), and (B)(10). Therefore, the Department notified Petitioner that it intended to deny her license application.

On or about March 9, 2018, the Department sent a second letter to Petitioner, informing her that she if she wanted it to reconsider its decision to deny her license application, she could provide written details and certified court records for four additional misdemeanor convictions that the Department had found or that she could request a hearing.

Petitioner sent a letter to the Department, disclosing the details of her other four misdemeanor convictions, in relevant part as follows:

Case #: CR-77106232

The Charge is contributing to the delinquency of a minor. I have two daughters, and when the youngest one turned 18, the older one who was 20, decided to give her a birthday party on an evening when I was out on business. There was alcohol involved, as one or two of the partygoers who were of age brought some into my home. I arrived home and was in the process of disbanding the party and calling the parents of the kids who were still at our home when the police arrived. I was not represented by an attorney and pled guilty to the charge. . . .

Case #: CR-44165022, CR-55210322 and CR-44196302

These charges, like the one I had originally sent in, are for issuing a bad check. As I stated before in my original application, these events, while not a one-time occurrence, happened because I was raising my two children as a widow. Like most women of my generation, I was not educated in managing finances, and did not know how to budget. I worked as a self-employed medical transcriptionist in my home office so that I could care for my children without having to put them in daycare. The cash flow of this business was not always steady, as is the nature of self-employment, and occasionally I mismanaged my checkbook, resulting in a dishonored check and the snowball effect of charges and negative checkbook balances. Beginning in 2008, and with the onset of changes in the medical record industry, my business failed and I found myself without work and without housing, and unable to repay the checks and fees. None of these checks were written to deliberately defraud anyone, and it is my intent to have every one of them repaid along with the charges and fines incurred.

I am not a dishonest person, nor did I engage in patterns of dishonest behavior. The above cases represent an unfortunate and difficult time in my life that has not and will not be repeated. I have been working extremely hard to rebuild and to find a new career which will allow me to give restitution for my earlier mistakes. I have educated myself in finances and leadership in order to ensure it. . . .

Petitioner also requested a hearing on the Department’s intended denial of her application for a real estate salesperson’s license. The Department referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On April 13, 2018, the Department issued a Notice of Hearing that charged cause to deny Petitioner’s real estate salesperson’s license under A.R.S. § 32-2153(B)(5), 32-2153(B)(7), and 32-2153(B)(10). The Department did not allege that Petitioner had misrepresented her qualifications for licensure on the application by failing to disclose the four additional misdemeanors.

On May 22, 2018, an evidentiary hearing was held. Petitioner submitted six exhibits and testified on her own behalf. The Department submitted fourteen exhibits and presented the testimony of its senior investigator, Brandon Stuart.

Additional Hearing Evidence

Petitioner committed the following misconduct, which resulted in misdemeanor convictions based on her plea agreements

9.1 On or about December 23, 2003, Petitioner wrote a bad check in the amount of $11.75 to the Arizona Department of Environmental Quality. As a result, on October 1, 2004, she was charged with a misdemeanor in Pima County Justice Court Case No. CR04-419630. On November 5, 2012 she pled guilty to the charge and was sentenced to pay $11.75 in restitution, $25.00 for a victim fee, $50.00 to the bad check program, and a $291.00 fine.

9.2 On or about May 23, 2004, Petitioner wrote a bad check in the amount of $281.97 to Costco Wholesale. As a result, on August 20, 2004, she was charged with a misdemeanor in Pima County Justice Court Case No. CR04-416502. On March 6, 2008, she pled guilty to the charge and was sentenced to pay $281.97 in restitution, $75.00 to the bad check program, and a $262.00 fine.

9.3 On or about April 7, 2005, Petitioner wrote a bad check to a photography studio in the amount of $23.00. As a result, on October 5, 2005, she was charged with a misdemeanor in Pima County Justice Court Case No. CR05-521032. On March 19, 2008, Petitioner pled guilty to the charge and was sentenced to pay $39.00 in restitution, a $50.00 victim fee, $100.00 to the bad check program, and a $262.00 fine.

9.4 On June 15, 2007, Petitioner was arrested at her home for contributing to the delinquency of a minor and furnishing liquor to a minor. As a result, on July 12, 2007, in Pima County Justice Court Case No. CR07-710623, Petitioner pled guilty to the offense and was sentenced to 6 months’ unsupervised probation, a $292.00 fine, and one session of counseling on civic responsibility.

9.5 As noted above, Petitioner disclosed on the explanation attached to her application that on October 1, 2008, she wrote a bad check and subsequently was charged with a misdemeanor in Case No. CR09-901442A in Tucson Justice Court. On January 23, 2009, Petitioner pled guilty and was sentenced to pay restitution and fines. The record does not disclose the amount of the check or the payee.

Petitioner testified that her husband died in 1997, when her daughters were approximately six and four years old. Her husband did not have life insurance and she did not have any special job training. Her husband had handled the family’s finances. To support herself and her daughters, while being able to stay home with her children, she started a medical transcription business, transcribing doctors’ dictated notes of their patients’ medical records.

Petitioner testified that the doctors sometimes did not pay on time and that she was not used to taking care of the family’s finances. She was frequently overwhelmed by her new responsibilities. Petitioner testified that she did not intend to defraud anyone by writing bad checks. Petitioner testified that her family responsibilities and limited income did not provide sufficient income to pay the restitution, bad check program fees, and court fines set forth in the sentences that the court imposed for the four bad checks.

Petitioner testified that in 2010, her medical transcription business failed due to the passage of Obamacare and new software like Dragon that allowed doctors to transcribe their own notes. She had no family who could help her, but went to California to live with friends.

Petitioner returned from California in 2013. The only job that she was able to get paid $12.00/hour as a pharmacy clerk. One of her daughters has chronic medical issues and still lives with her. Petitioner testified that she still did not have sufficient income to pay restitution, bad check program fees, and court fines.

Petitioner testified that when she contacted the court to resolve unpaid restitution, fees, and penalties, the total was more than $2,000.00. On April 30, 2018, the court agreed to rescind court costs and to require her to pay a total of $1,024.72 for past due restitution and bad check program fees. Petitioner testified that she has agreed to pay $100.00 per month, beginning on May 30, 2018.

Petitioner testified that she intended to make extra payments to pay the debt off early. Petitioner testified that she has a better handle on her finances and that she has not written any bad checks since 2008. Petitioner testified that the bad checks were the result of her mistakes in budgeting and keeping track of her money and did not reflect an intent to defraud anyone.

Petitioner acknowledged that she has not yet made any payments pursuant to her agreement with the court.

On or about June 7, 2013, Petitioner was licensed as an Insurance Producer by the Arizona Department of Insurance. Petitioner’s Insurance Producer’s License No. 16980299 is current and in good standing.

Petitioner testified that the insurance industry is regulated by federal and state statutes and regulations. As part of her job, Petitioner testified that she counsels clients about financial matters when she meets with them to discuss various insurance products. Petitioner testified that she uses the knowledge that she gained from her past financial mistakes to help her insurance clients.

Petitioner submitted a letter dated May 15, 2018, from Craig Nochumson, the Branch Officer Supervisor/Senior Marketing Director of Transamerica Financial Advisors, Inc. on 6979 E. Broadway #127, Tucson, Arizona 85701. Complainant testified that Mr. Nochumson was her direct supervisor. Mr. Nochumson’s letter stated in relevant part as follows:

After discussing with [Petitioner] the current disclosure issue you are considering, and understanding the hard times that her family was going through, I came to the realization that the issue had more to do with bad timing and not anything that would cause me a concern with any of my clients or reps. Cherie is one of the MOST HONEST, friendly, warm, caring people that I know. I the last 6yrs of her being involved on my team, I have never once had any issues with Client Complaints, or had an reason to suspect her of any form of [dishonesty] or misrepresentation. I would trust Cherie and her family with my kids if necessary. I consider her to be a hard worker a friend and valuable asset to our team. I hope that since the AZ Dept of Insurance was able to issue her a license to duct business that the Dept of Real Estate will also issue her [a] license so she can also help people enjoy the benefits of HomeOwnership. . . .

On or about August 3, 2014, Petitioner was licensed as a Pharmacy Technician by the Arizona State Board of Pharmacy. Petitioner’s Pharmacy Technician License No. T041898 is current and in good standing.

Petitioner testified that as a Pharmacy Technician, she has access to patients’ personal, financial, and medical information. She must check the dosages of medications that patients’ health care providers prescribe to them.

Petitioner testified that Peter M. Nuñez was her team leader and supervisor at Alorica, a pharmaceutical customer call center. Petitioner submitted a letter of reference from Mr. Nuñez dated November 8, 2017, that provided in relevant part as follows:

I have worked with Cherie McCommons for several years at Alorica Inc. In the years working directly with her, I have witnessed great professionalism, punctuality, and an ever-present positive and upbeat attitude. She is a person of great integrity and demonstrates excellent leadership abilities. Cherie always goes above and beyond what is required of her, and is a valuable member of our team.

I would consider Cherie the perfect addition to any team or organization. . . .

Petitioner testified that Mr. Nuñez no longer works for Alorica.

Petitioner also submitted a letter of reference from Asima Khan, the Operations Manager at Alorica, 2929 E. Corona Rd., Tucson, Arizona 85748. Ms. Khan’s letter provided in relevant part as follows:

In [Petitioner’s] position as a Pharmacy Technician, Cherie was employed with the Alorica Pharmacy for a little over 3 years. Throughout her time with our organization, she demonstrated critical skills that would make her an excellent employee at your company.

Cherie did a terrific job in her position and was an asset to our organization during her tenure with the office. She has excellent written and verbal communication skills, is extremely organized, can work independently, and is able to effectively multi-task to ensure that all projects are completed in a timely manner.

Due to her effectiveness, she was promoted from a Pharmacy Clerk to a Pharmacy Technician through an internal training program. Cherie went above and beyond in that assignment, as she does in all tasks, later holding an impressive quality of work record. Cherie was always willing to offer her assistance and had an excellent rapport with many of her peers in the office.

She would be an asset to any employers, and I wholeheartedly recommend her for any endeavor she chooses to pursue. I volunteered to write this recommendation for Cherie because I am very grateful for her contributions to our project and very confident that she has the intelligence, work ethic, and communications skills to add value wherever she works. . . .

Petitioner testified that Ms. Khan is currently in Alorica’s Human Relations Department.

Petitioner also submitted a letter of reference from Lillian L. Parisotto, RPh. Petitioner testified that Ms. Parisotto was the Pharmacist in Charge of the Alorica project. Ms. Parisotto’s letter provided in relevant part as follows:

I am pleased to offer my support and a personal reference as [Petitioner] embarks on an exciting and challenging career change.

Cherie has been employed by Alorica (previously EGS/APAC) since March 2014. I have known her professionally since May 2015. She started her employment first as a Pharmacy Clerk and then displayed knowledge and professionalism that merited a promotion to Pharmacy Technician. In each role, her quality and production metric were always excellent. In recognition of her varied skills and interpersonal maturity, she was asked to be a Subject Matter Expert, where she demonstrated compassion and the ability to guide, coach and support her peers. She has the ability to manage multiple tasks and accomplish goals in a timely and proficient manner.

Her work performance is consistently strong. She is responsible, sets high standards, and works hard to ensure that she and her peers are successful. Moreover, Cherie is positive and respectful in her dealings with her supervisors and colleagues. She is always pleasant, positive, and poised. She has proven herself to be a valuable member of our team with great ideas, constructive thinking and strong interpersonal skills.

Based on my personal observation of her professional work ethic, her wide-ranging talents and her engaging personality, I feel that she is very well prepared to undertaken her next challenge. . . .

CONCLUSIONS OF LAW

The Department has jurisdiction to consider Petitioner’s appeal of its denial of her application for a real estate salesperson’s license based on her history of misdemeanor convictions.

Petitioner bears the burden of proof to establish that he is rehabilitated and that she now 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.”

Petitioner does not dispute that between December 2003, and October 2008, after the death of her husband, she wrote four bad checks and that in June 2007, she pled guilty to contributing to the delinquency of a minor and furnishing liquor to a minor. The known amounts of the bad checks were small and Petitioner’s explanations for the offenses were credible. Nonetheless, cause exists under A.R.S. § 32-2153(B)(10) for the Department to deny Petitioner’s license application for a salesperson’s license.

Because Petitioner credibly testified that she did not intend to defraud or mislead anyone when she wrote the bad checks, cause does not exist to deny her license application under A.R.S. §§ 32-2153(B)(5) and 32-2153(B)(7).

The legislature established the Department to protect “the public health, safety and welfare by regulating the sale of real estate . . . .” A real estate salesperson’s license is a privilege, not a right. The Department has discretion to grant or deny a license to an applicant under A.R.S. § 32-2153(B). The issue is whether in light of Petitioner’s past mistakes and the efforts that she has made to rectify those past mistakes, Petitioner at this time can be trusted to be responsible and forthright in her dealings with her clients and members of the public if the Department grants her application for a real estate salesperson’s license.

The time period required for a license applicant to establish rehabilitation is commensurate with the period of misconduct and the severity of the offenses. The amounts of Petitioner’s bad checks were nominal. Nearly ten years have passed since Petitioner wrote the last bad check. Nonetheless, Petitioner has not paid any restitution to any of the persons to whom she wrote any of the bad checks or satisfied other financial requirements of her criminal sentences.

Petitioner credibly testified and her character references corroborated that she has learned from her mistakes and that she is using that knowledge to help others manage their finances. Petitioner also credibly testified that she has not paid the restitution and bad check program fines because until only recently, did she reached an agreement with the court or earn enough money to afford any additional expenditures to pay restitution, but that she intends to pay restitution and to satisfy the other requirements of her criminal sentences. At this time, Petitioner has established that she is rehabilitated and that the public does not need protection from the personality traits or conditions that caused her past mistakes.

RECOMMENDED ORDER

Based on the foregoing, Petitioner Cherie Renee McCommons shall be granted a real estate salesperson’s license, subject to a two-year provisional term. The provisions include the following:

Only periods of active licensure shall accrue to the provisional license period.

Petitioner shall submit sworn quarterly declarations, under penalty of perjury, to the Department’s Compliance Officer stating that she has been in compliance with all provisions on her license.

During the provisional license period, Petitioner shall not act as a supervisor, branch manager, partner, owner, co-owner, or officer of any entity licensed under Title 32, Chapter 20, Arizona Revised Statutes, and shall not handle or access property management clients’ trust funds.

During the provisional license period, Petitioner shall be licensed under the supervision of a real estate practice monitor (“practice monitor”), subject to the following terms and conditions:

Prior to or concurrent with hiring and submitting any license change form and fee to the Department, or if Petitioner is actively licensed within ten (10) days of the entry of the final order in this matter, whichever applies, any designated broker representing the Employing Broker employing Petitioner shall submit a signed statement to the Department Compliance Officer, together with the forms and fees for Petitioner to be employed by such broker, if required. The signed statement shall certify that the designated broker has received and read a copy of the final order in this matter, agrees to act as Petitioner’s practice monitor or appoints an associate broker who qualifies under the terms hereof, and agrees to comply with the following requirements:

The proposed practice monitor shall not have been a party to any prior disciplinary action by the Department.

The proposed practice monitor shall not be a partner of or a co-owner with Petitioner in any business enterprise, and shall not be a relative of or have any other relationship with Petitioner that may create, or create the appearance of, a conflict of interest or bias.

An associate broker may act as a practice monitor only if the associate broker is employed at the same location as Petitioner and has been appointed by the designated broker with full written authority pursuant to A.R.S. §§ 32-2151.01(G) and 32-2127. An associate broker appointed to act as practice monitor shall also submit to the Department a signed statement certifying that the associate broker has received and read a copy of the final order in this matter, agrees to act as Petitioner’s practice monitor, and agrees to comply with the requirements set forth herein.

The proposed designated broker or associate broker who will act as Petitioner’s practice monitor is subject to review and written approval by the Department Compliance Officer. This written approval may be withdrawn in the sole discretion of the Department Compliance Officer at any time upon written notice from the Department Compliance Officer to Petitioner and the practice monitor.

The practice monitor shall immediately submit a written report to the Department Compliance Officer if the practice monitor becomes aware of any behavior or conduct in which Petitioner has engaged that violates real estate statutes or rules in which Petitioner has violated any terms of the final order in this matter.

If the practice monitor is an associate broker, the designated broker shall sign and date all reports required pursuant to the final order in this matter, noting that the designated broker has accepted and approved the associate broker’s report.

No practice monitor is required if Petitioner’s license changes to inactive status or expires.

In the event Petitioner changes employment or reactivates, Petitioner shall immediately notify the Department Compliance Officer and obtain a new practice monitor who qualifies under the terms and conditions hereof. The new practice monitor must be approved by the Department Compliance Officer before Petitioner’s hire by the new employing broker.

In the event Petitioner’s practice monitor is no longer eligible to act as such or ceases to perform the duties required under the terms of the final order in this matter, or there is a new designated broker for Petitioner’s existing employing broker, Petitioner, Petitioner’s practice monitor and/or Petitioner’s designated broker shall immediately notify the Department Compliance Officer. Unless Petitioner obtains a new practice monitor who qualifies and is approved under the terms and conditions hereof, termination of Petitioner’s employment shall be required within seventy-two (72) hours of the time Petitioner loses the practice monitor.

In the event Petitioner’s license becomes inactive or Petitioner fails to obtain a new practice monitor, Petitioner shall immediately cease and desist from engaging in any activity authorized by Title 32, Chapter 20, Arizona Revised Statutes, and shall notify the Department Compliance Officer that the license is inactive. Petitioner shall obtain a new practice monitor before reactivating Petitioner’s license.

In the event Petitioner discontinues active employment as a real estate licensee in the State of Arizona, Petitioner shall immediately notify the Department Compliance officer and practice monitor. The practice monitor shall submit the proper form to the Department to place Petitioner’s license on inactive status.

Petitioner shall attend eighteen (18) hours of approved continuing education classes in the category of the Commissioner’s Standards. Within thirty (30) days after entry of the final order in this matter, Petitioner shall submit in writing to the Compliance Officer the course sponsor, title and number of the classes Petitioner proposes to take, and obtain the approval of the Compliance Officer. Petitioner shall submit certificates evidencing course completion to the Compliance Officer within one hundred twenty (120) days after entry of the final order in this matter. These continuing education classes shall be in addition to continuing education courses Petitioner has taken or will take for license renewal pursuant to A.R.S. § 32-2130.

On or before one year after the effective date of the final order in this matter, Petitioner shall provide satisfactory written proof to the Department that she has paid all outstanding restitution and other charges ordered to be paid as part of her sentences in Pima County Justice Court Case Nos. CR04-419630, CR04-416502, CR05-521032, and CR09-901442A.

If the Department receives information that it deems credible that Petitioner has violated any subsection of A.R.S § 32-2153(A) or (B) or the conditions of her provisional license, the Department shall summarily suspend Petitioner’s real estate salesperson’s license and refer the matter to the Office of Administrative Hearings for an expedited evidentiary hearing pursuant to A.R.S. § 41-1064(C) for revocation of the license.

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 will be five days from the date of that certification.

Done this day, May 30, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate