ALJDEC decisions subject to certification as final

18F-DI-273-REL · Department of Real Estate · 2018-06-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

ASAY, AMBER, holder of license number SA673794000 (Candidate),

Petitioner.

No. 18F-DI-273-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 29, 2018, at 1:00 p.m.

APPEARANCES: Amber Asay (“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 7, 2018, Petitioner filed an application to be licensed as a real estate salesperson with the Department. Petitioner answered “yes” to the following three questions on the application:

Has the Applicant . . .

. . . .

6. Had any judgment and/or order against them by ANY court involving fraud, dishonesty, misrepresentation, unfair trade practice, or moral turpitude?

. . . .

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?

13. Been 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 written explanations for her “yes” answers:

2.1 Petitioner stated that on June 8, 2006, when she was eighteen years old, Peoria Traffic Ticket and Complaint #TR2006005062 was issued. Petitioner explained that after she was kicked her out of her mother’s house for her “party girl” mindset, she went to her father’s house while he was out of town. Petitioner explained that although her parents were divorced, on her mother’s advice, her father did not invite her to his house. When her mother came to her father’s house in the morning to feed the dogs and found Petitioner sleeping on the couch, an argument ensued. Petitioner left, but turned around after she realized that she had left some of her belongings at her father’s house. Because she was speeding, she hit the garage door and resumed the argument with her mother. Neighbors called the Peoria police, who arrested her. Although her parents did not press charges for the criminal damage, on July 5, 2006, Petitioner pled guilty to disorderly conduct and was sentenced to 30 days in Maricopa County Jail, of which Petitioner served fifteen days, 26 Domestic Abuse Intervention Program (“DAIP”) classes, drug and alcohol screening, and two years’ unsupervised probation. She has completed her sentence, including paying $994.00 for incarceration fees.

2.2 Petitioner stated that on July 12, 2012, in Maricopa County Superior Court #CR2012-008361-DT, she was charged with Attempt to Commit Acquisition or Administration of Narcotic Drugs as well as a “myriad” of other felony offenses. Petitioner explained that on August 4, 2009, two weeks before her twenty-second birthday, her then-boyfriend whom she thought she loved shot her in the face with a .22 caliber handgun. She was able to hide the wound by styling her hair differently and, two weeks later she returned to work as a receptionist for her mother’s commercial real estate management company, moved to north Scottsdale, and resumed an active social life that included smoking marijuana and drinking alcohol. In October 2010, Petitioner underwent surgery to repair the damage to her jaw from the gunshot wound.

2.2.1 After the 2010 surgery, Petitioner stated “it was as if the flood gates had opened,” leaving her “feeling very depressed with so much emotional pain and being spiritually broken that I started to tear down the façade of a life I was building.” Petitioner was prescribed opiates for the pain after her surgery and in 2011, went from using opiates to using heroin. In August 2011, Petitioner’s mother fired her from the receptionist job.

2.2.2 Petitioner moved into a motel, where she met people with whom she became involved in prescription drug fraud to support her own drug habit. Petitioner stated that she was arrested on July 12, 2012, when she was attempting to cash in three prescriptions at a pharmacy. She detoxed from heroin during the week spent in jail before she was released after the doctor whose prescription forms she had used declined to press charges. Petitioner stated that after her release, she returned to her car, which was still in the pharmacy parking lot. After a few days of living in her car and eating gas station hot dogs, Petitioner contacted the persons whom she had met at the motel because she needed money.

2.2.3 On July 20, 2012, Petitioner attempted to cash in prescriptions at a Walgreens Pharmacy and because the prescription pads had been reported as stolen, Peoria police arrived to arrest Petitioner. When one of the arresting officers asked Petitioner if she had anything in her vehicle, she told them, “Yes. Marijuana.” After Petitioner was placed in handcuffs in the back of a police car, she was able to escape by slipping out of the handcuffs and opening the door through a cracked window. After hiding out in a wash, Petitioner eventually stole a car that had been left running at a gas station and went to see her mother. Within 72 hours, Phoenix police arrested Petitioner.

2.2.4 Criminal charges were refiled in Case #CR2012-008361-DT. On July 24, 2012, Petitioner was also charged in Maricopa County Superior Court Case #CR2012-139204-001 with five counts of Forgery, False Reporting to Law Enforcement, Escape in the Second Degree, and Theft of a Means of Transportation. The cases were consolidated and, on December 14, 2012, Petitioner pled guilty to one count of forgery and one count of Theft of Means of Transportation. As a result, she was sentenced to six months’ imprisonment followed by three years of intensive, supervised probation and ordered to pay restitution for the stolen vehicle. Petitioner stated that she spent more than five months in Perryville Prison, successfully completed her probation, and paid the restitution.

2.2.5 Petitioner described what happened next in relevant part as follows:

December 21, 2012 was the date that everyone had predicted the world would end. On that morning I walked out of PerryVille Prison; and to me, the world which I once knew had ended. I felt reborn.

I moved in with my mom in East Mesa and embarked on the journey of healing and self-discovery.

It has not been easy. I not only hurt myself, but the family dynamics were completely thrashed by my destructive patterns. It has taken years of family counseling to heal from. Some scars will never be completely gone.

I checked into a 30day inpatient rehab facility, Calvary. For the first time I went through all twelve steps of Alcoholics Anonymous. I did a full inventory of myself, and was able to release my resentments towards God, towards the man who shot me, and towards myself.

I have come to find that the hearing process is like an onion. There are endless layers, and once peeled back, usually come with tears. I welcome it. I closed myself off for so long, detached myself from the trauma that I had endured, it took many forms of therapy to connect and process my pain.

I have explored many types of neuro-therapy one of the most beneficial, EMDR (eye movement desensitization and reprocessing). I even spent three nights in the desert with an Indian Shaman on the anniversary date of the shooting.

I enrolled at Mesa Community College, taking classes in Project Management and Exercise Science. I am grateful that I have the opportunity to explore both. Health and fitness have become a new way of life. I believe that what we put into our bodies is the ultimate reflection of self-love and care.

When I first began my healing journey it was out of desperation to stop hurting, emotionally and through my destructive behaviors. I remember in the beginning questioning myself, unsure about my future and ashamed of my story. The past two years have been all about integration. Even though I am not proud of what I’ve done, or what I have been through, it has been the fires that have forged the woman who I am today. I am able to stand strong in my convictions and not be swayed by the ‘easy route’. I fight for what I believe, and strive to reach my potential.

I knew I was going to have to make an appeal to the [Department], so I began gathering the documents back in April of 2017. I was not fully aware of the appeal process, however, I am determined to exhaust all options in order to display that I am an honorable woman and operate with integrity.

Commercial Real Estate has been a dream of mine since I was a child. I would dress up in my mother’s suits, adjust the shoulder padding, grab her briefcase and pretend I was going to work with her. Last year I was hired on with a company who despite my past, gave me a chance and ignited the spark of hope and belief that my dreams can still come true. I absolutely love what I do – Commercial Property Management. I have completed the required 90hours and have passed both the state and national real estate exams. During the course of gathering the court documents required for this packet and reading over my jail journals, along with the police reports has been a cathartic experience. Regardless of the outcome, I understand now that I needed this closure.

On March 23, 2018, the Department informed Petitioner via certified mail that based on her felony convictions, it had concluded that she did not meet the qualifications for licensure pursuant to A.R.S. § 32-2153(B)(2), (B)(5), (B)(7), and (B)(10). Therefore, the Department notified Petitioner that it intended to deny her license application.

Petitioner requested a hearing on the Department’s 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 May 22, 2018, an evidentiary hearing was held. Petitioner submitted as exhibits three letters of reference, testified on her own behalf, and presented the testimony of Samantha Kaskel and Jessica Webb Houston. The Department submitted nine exhibits to establish the facts set forth below and presented the testimony of its investigator, James Ledwith, to provide foundation for its exhibits..

Additional Hearing Evidence

Petitioner committed the following misconduct, which resulted in criminal convictions:

6.1 On June 8, 2006, according to City of Peoria Traffic Ticket and Complaint No. TR2006005062, Petitioner was arrested and charged with criminal damage, disorderly conduct, and reckless driving/speeding. As a result, on July 5, 2006, Petitioner pled guilty to disorderly conduct, a Class 1 misdemeanor, and speeding and was sentenced two years’ unsupervised probation, DUI Substance Abuse Screening/Education/Counseling, and 26 weeks of DAIP.

6.2 On September 12, 2012, in Maricopa County Superior Court Case No. CR 2012-008361, Petitioner was indicted for Attempt to Commit Acquisition or Administration of Narcotics, a Class 4 felony. On December 14, 2012, Petitioner pled guilty to Criminal Possession of a Forgery Device, a Class 6 felony, and was sentenced to six months’ incarceration, with credit for 97 days served, and three years’ probation.

6.3 On July 26, 2012, a direct complaint was filed against Petitioner in Maricopa County Superior Court Case No. CR2012-139204 charging five counts of forgery, all Class 4 felonies, one count of False Reporting to Law Enforcement Agency, a Class 1 misdemeanor, Escape in the Second Degree, a Class 5 felony, and Theft of a Means of Transportation, a Class 3 felony, based on conduct that occurred on July 20, 2012. As a result, on December 14, 2012, Petitioner pled guilty to one count of Forgery, a Class 4 felony, and one count of theft of a means of Transportation, a Class 3 felony. Petitioner was sentenced to six months’ incarceration and 3 years’ probation, to be served concurrently with the sentence in Case No. CR2012-008361.

Petitioner testified consistently with the disclosure that she submitted with her application. She is no longer the person who committed the crimes that resulted in the criminal convictions. She has been humiliated and has gone through the depths of hell and will never again go against what is right. Her passion is real estate and she seeks final redemption through a chance to prove herself

Petitioner testified that she has been off probation for 21⁄2 years and that she has settled all claims for restitution. She has been clean and sober since July 25, 2013. After her release from a 30-day residential treatment program at Calvary, she went to 12-step meetings for a year and underwent weekly detoxifications. Although she no longer attends Alcoholic Anonymous or another sobriety program, she practices healthy living and fitness programs, including hiking and aerial fitness. She is a distributor for Herbalife and continues to undergo and to help others with life coaching.

Ms. Kaskel testified that she met Petitioner 11⁄2 years ago through the Circus School in Arizona, where she a coach for aerial fitness programs. Ms. Kaskel also is an EMT skills instructor and assistant teacher of Fire I and II at Paradise Valley Community College.

Ms. Kaskel testified that she spent hours with Petitioner when Petitioner was shadowing her class. Petitioner later became her best friend. Ms. Kaskel described Petitioner as “light-hearted” but forthcoming about her past. Ms. Kaskel would not have believed that Petitioner had committed felonies if she had not disclosed her past. Ms. Kaskel testified that she trusts Petitioner with her life and that Petitioner has rigged Ms. Kaskel harness for aerial exercises over concrete and Plexiglas.

Ms. Kaskel testified that another coach at the Circus School had accessed client information to charge clients illegal illegally. Petitioner brought the coach’s misconduct to the attention of management.

Ms. Webb Houston testified that eight years ago, she was broken and overweight after being discharged from the military. Ms. Webb Houston testified that when she met Petitioner two years ago, she was struck by Petitioner’s positive energy. Ms. Webb Houston testified that as a result of Petitioner’s coaching, she has lost 60 pounds and gotten off medications that the Veterans’ Administration had prescribed to help her function. Ms. Webb Houston testified that Petitioner pulled her out of a dark place and inspired her.

Ms. Webb Houston testified that Petitioner deserves a real estate salesperson’s license because she has learned from past mistakes and has contributed to the community. Ms. Webb Houston would trust her two children with Petitioner.

Petitioner submitted a letter of reference from Geffen Liberman, LISAC, CRADC, CPC. Petitioner explained that Mr. Liberman provided weekly counselling session when she was first sober. Mr. Liberman’s April 25, 2017 letter stated in relevant part as follows:

I have known Amber for several years and have worked closely with her in my role as her therapist when she needed such services. Amber has allowed me to disclose this information to you as I write this character letter on her behalf. In my time of knowing Amber, I have seen her make tremendous strides physically, mentally, emotionally, and spiritually. She has put forth tireless effort to better her life and her self as a person, all the while continuing to display a true passion for helping other people. Amber is a truly exceptional person and I believe her to be of very high character and of equally high intelligence. I believe she would make a wonderful asset to any company or team of any kind. . . .

Petitioner testified that Cathy Clark is the Controller of Dynamic Asset Management, LLC, her mother’s real estate company. Ms. Clark’s April 5, 2017 letter stated in relevant part as follows:

I have known Amber Asay for over fifteen years. We have been friends and coworkers during this time and I’ve personally witnessed her go through many personal challenges. Over the past five years, I believe she learned from her experience and has put in the extra effort needed to reclaim her life and put her on the right track. Amber has a strong sense of duty, which applies in her job, family and community.

Amber’s contribution to Dynamic Asset Management, LLC, as an administrative assistant for the past five years is undeniable. During her time with Dynamic, Amber has come to live property management of commercial real estate and decided earlier this year to pursue her dream of becoming a property manager for Hannay Properties, her new employer. It was certainly an honor to be a supervisor of such a promising employee. She is a very hardworking person and will be an asset to whichever company she works for.

It must be difficult for you to make decisions like this when you don’t actually know the person requesting your approval, so I hope you will look at my letter and the others you’re receiving, and understand that Amber Asay is the kind of person that deserves a second chance to live up to her potential.

Ms. Kaskel’s January 10, 2018 letter urged approval of a level one fingerprint clearance card for Petitioner. Ms. Kaskel’s letter also stated in relevant part as follows:

I have only had the pleasure of [knowing] Amber for a little over a year now. At first, as a coach but now as a co-worker and more importantly a friend. In this past year she has opened up to me about her story and it’s a real page turner but she has in fact turned her life around completely. She meets new people everywhere she goes and you only have to know her for a minute to learn that she thirsts for knowledge, strives to be the best she can possibly be, and honestly and whole heartedly cares. I truly couldn’t ask for a better friend than her.

Working with her at the circus school is always a pleasure because of her amazing personality and outlook on different things. Especially, when there have been times where we worked times that ended up being 14 hour days or she stepped up into a role that wasn’t hers [due to] the fact that someone couldn’t fulfill their duty. She has been shadowing the last few months . . . . Amber is one of the most driven and caring people I have ever met. You can throw anything at her, and she will meet it with a smile and determination!

Knowing her true passion is in real estate I write this letter because I believe she is truly a person of amazing character, one that I can rely on to always support everyone, one that I can entrust my adult class of students to, and one who handles all situations calm and composed. As it has been explained above, I truly believe Amber deserves this chance to truly make something great of herself and exceed her own expectations of what she can do. . . .

CONCLUSIONS OF LAW

At the end of the hearing, the Department’s attorney withdrew A.R.S. § 32-2153(B)(7) as to deny her application for a real estate salesperson’s license.

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 criminal convictions.

Petitioner bears the burden of proof to establish that she 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 on July 12, 2012, and July 20, 2012, , she committed crimes that resulted in convictions of Criminal Possession of a Forgery Device, Forgery, and Theft of a Means of Transportation, which are all felonies that involve fraud or dishonest dealings. Petitioner’s explanations of the offenses were credible. Nonetheless, cause exists under A.R.S. § 32-2153(B)(2), (B)(5), and (B)(10) for the Department to deny Petitioner’s license application for a salesperson’s license.

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 is rehabilitated and 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. Between June 8, 2006, when Petitioner was eighteen years old, and July 20, 2012, when she was twenty-six years old, Petitioner abused drugs, forged prescriptions to obtain the drugs, and, after police arrested her for the forgery, stole a vehicle to escape the police. Nearly six years have passed since her last criminal act. Petitioner credibly testified that she no longer abuses drugs and that she has made substantial positive changes in her life. Her testimony as corroborated by the witnesses who testified on her behalf and letters of reference.

The issue of what constitutes good character or a lack thereof is nebulous at best. Former United States Supreme Court Justice Frankfurter noted:

No doubt satisfaction of the requirement of moral character involves an exercise of delicate judgment on the part of those who reach a conclusion, having heard and seen the applicant . . . , a judgment of which it may be said as it was of "many honest and sensible judgments" in a different context that it expresses "an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions; impressions which may lie beneath consciousness without losing their worth." . . .

Once good character is shown to be absent, it is not automatically regained by the mere passage of time. Positive and affirmative activities are required for a person to regain what was lost.

Petitioner credibly testified that she is using the personal insights gained from her past mistakes to help others attain health and personal control over their lives. 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, IT IS ORDERED that Petitioner Amber Asay shall be granted a real estate salesperson’s license, subject to a two-year provisional term. The provisions include the following terms:

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.

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, June 1, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate