ALJDEC decisions subject to certification as final

18F-DI-274-REL · Department of Real Estate · 2018-06-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

TWARDOWSKI, DONARD F, holder of license number SA669184000 (Candidate),

Petitioner.

No. 18F-DI-274-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 14, 2018, at 1:00 p.m.

APPEARANCES: Donard F. Twardowski (“Petitioner”) appeared telephonically on his 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 20, 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 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?”

Petitioner attached to his application for a real estate salesperson’s license a written explanation of his “yes” answer that stated that the offense had occurred sometime in 1997. Petitioner was living with his fiancée, Nicole, at the time and found another man’s telephone number in her car’s visor after she returned from work. A scuffle ensued, during which Petitioner held his fiancée’s arms to her sides to keep her from hitting him. After the scuffle, Petitioner and his then-fiancée had consensual “make-up” sex three times. As a result of the incident, Petitioner was charged with unlawful restraint based on his holding his fiancé’s arms to her sides and three counts of sexual assault and domestic violence. He was convicted of one count of unlawful restraint, but the three counts of sexual assault and domestic violence were dismissed.

Petitioner also attached to the application a plea agreement in Eighteenth Circuit Court of Du Page County, Illinois Case No. 85 CF559-04 (“the Illinois case”). Petitioner had pled guilty to one count of Unlawful Restraint and had been sentenced to serve 180 days in county jail, with credit for 21 days served, to serve 24 months of probation, ending on March 5, 1999, and to pay a $100 fine for domestic violence. The judge signed the plea agreement on March 7, 1997.

Petitioner also attached to the application a Criminal & Traffic Division Transcript that showed that on March 5, 1999, Petitioner had paid all fines and satisfactorily completed his probation and the other sentence requirements in the Illinois case.

On March 28, 2018, the Department informed Petitioner via certified mail that based in part on his conviction for unlawful restraint on March 7, 1997, it had concluded that he did not meet the qualifications for licensure pursuant to several statutes governing the licensure of real estate salespersons, including A.R.S. § 32-2153(B)(7). Therefore, the Department notified Petitioner that it intended to deny his license application.

Petitioner requested a hearing on the Department’s intended denial of his application for a real estate salesperson’s license. Petitioner stated that he was remorseful and more mature and that he had learned from the mistake that he made in unlawfully restraining his former fiancée more than 20 years earlier.

The Department referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On June 14, 2018, an evidentiary hearing was held. Petitioner submitted nine exhibits, testified on his own behalf, and presented the testimony of his friends and clients, Steven Pravica and Efthimia Pravica, RN. The Department submitted five exhibits and presented the testimony of its senior investigator, Jim Ledwith.

Additional Hearing Evidence

Mr. Ledwith testified to establish the facts set forth above.

In 1998, after the 1997 felony conviction, Petitioner’s father was diagnosed with lung cancer. Shortly thereafter, Petitioner moved in with his parents to help his mother care for his father. During the time he helped care for his father, Petitioner went to school. Petitioner was trained to be a BICSI certified electrical technician at the IBEW Local 134 tech school and became a journeyman wireman like his father.

Although Petitioner mostly worked with low-voltage electrical currents, shortly after he started working as a wireman, he was electrocuted on the job and almost died. Petitioner testified that he felt that the accident was God’s way of saying that he needed to calm down and become a better person.

After Petitioner returned to his job as a wireman, because Petitioner needed to take time off work to help care for his father, he was let go. Petitioner’s father died on September 17, 1999.

In 2000, Petitioner’s mother purchased a condominium in Arizona to use as a vacation home. After Petitioner got his mother settled in her vacation home, he moved to Las Vegas, Nevada.

In 2002 and 2004, Petitioner was twice convicted of misdemeanor Driving Under the Influence. Petitioner explained that after his father died, he became depressed. Petitioner testified that he hardly drinks alcohol anymore and no longer drinks hard liquor.

Since May 2002, Petitioner has been licensed as a real estate salesperson in the State of Nevada Department of Business and Industry Real Estate Division. He also holds a business license issued by Clark County, Nevada and Nevada State Business License, both of which are necessary for him to engage in real estate sales in Nevada. During the nearly 16 years that Petitioner has been licensed as a real estate salesperson in Nevada, he has never had a complaint against his Nevada real estate salesperson’s license. Petitioner testified that he joined the education committee of the real estate licensing agency in Nevada and undertakes other activities to improve the real estate profession.

In 2015, Petitioner helped his mother get a divorce from her second husband. Because Petitioner’s mother’s second husband had dementia and was in a nursing home, Petitioner feared that the government could lien Petitioner’s mother’s real estate assets to recoup the costs of her second husband’s care and leave her with no place to live. He helped her keep her home by researching the issue and advocating on her behalf. After his experiences with his mother, Petitioner testified that he wants to help senior citizens with all of their real estate issues. Petitioner wants to protect and serve the public as a real estate salesperson in Arizona.

In 2016, Petitioner’s now 80-year-old mother moved full-time to Scottsdale. Petitioner spent time with her. In May 2017, after a fall, Petitioner’s mother was diagnosed with lung cancer. Petitioner promised that he would never put his mother in a nursing home, which she did not want, and cared for her in her home. On August 31, 2017, after Petitioner’s mother fell and broke her hip, she was placed in Friendly Village Hospice in Tempe. Petitioner’s mother died on September 6, 2017. She wanted Petitioner to become a real estate salesperson in Arizona.

Petitioner grew up in Chicago, Illinois, and remains in touch with many of the people that he knew in Illinois.

Mr. Pravica still lives in Illinois and has known Petitioner more than 20 years. Petitioner has helped Mr. and Mrs. Pravica purchase investment properties in Nevada. Mr. Pravica currently works as a high school instructor in Crystal Lake, Illinois. Mr. Pravica provided a letter of reference for Petitioner and testified on his behalf.

Mr. Pravica testified that Petitioner has a good work ethic and is knowledgeable about real estate transactions. Petitioner’s positive attitude made Mr. and Mrs. Pravica’s real estate transactions in Nevada a pleasure. Mr. Pravica testified that after the 1997 legal issues, Petitioner has become more mature and respectful. Mr. Pravica has helped Petitioner understand that it is better not to escalate conflict. Mr. Pravica admires the care that Petitioner rendered to his parents.

Mrs. Pravica also wrote a letter of reference and testified on Petitioner’s behalf. Mrs. Pravica met Petitioner about 20 years ago through her husband. Mrs. Pravica testified that she did not know Petitioner well in 1997. Based on Mrs. Pravica and her husband’s real estate transactions in Nevada, Mrs. Pravica praised Petitioner’s experience, knowledge, and professionalism in real estate sales. Mrs. Pravica trusts Petitioner with her seven-year-old daughter.

Petitioner submitted a letter of reference from Steve P. Kaplan. Mr. Kaplan has known Petitioner for over 30 years and chose Petitioner to be his realtor when he moved to Las Vegas. Mr. Kaplan described Petitioner as a good person and a man of his word who helps his friends when possible. Mr. Kaplan stated that Petitioner has matured and that he took the time to explain every document in the real estate transaction in Nevada.

Petitioner submitted a letter of reference from Mike Salvaggio from Hoffman Estates, Illinois. Mr. Salvaggio has known Petitioner for about 25 years and knows that he is a reliable source for answers to real estate industry questions. Petitioner always tries to better himself, going to classes and trade shows to better serve his real estate clients.

Petitioner submitted a letter of reference from Eric DeSimone of London, England. Mr. DeSimone has known Petitioner for 27 years and has lived with Petitioner for several years. Petitioner testified that Mr. DeSimone was his college roommate. Mr. DeSimone described Petitioner as “a man with good judgment, positive outlook on life, with strong character, work ethic, high morals and integrity.”

CONCLUSIONS OF LAW

The Department has jurisdiction to consider Petitioner’s appeal of its denial of his application for a real estate salesperson’s license based on the 1997 conviction for unlawful restraint. The Department also has jurisdiction to grant Petitioner either a provisional or unrestricted real estate salesperson’s license.

Petitioner bears the burden of proof to establish that he is rehabilitated and that he 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 in March 1997, he pled guilty to unlawful restraint of his former fiancée during an argument, which was a felony. Therefore, cause potentially exists under A.R.S. § 32-2153(B)(2) 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 mistake more than 20 years ago and the positive acts that he has performed since, Petitioner at this time can be trusted to be responsible in his dealings with his clients and members of the public if the Department grants him an unrestricted 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. More than 20 years have passed since Petitioner unlawfully restrained his former fiancée. During that time, he has cared for his elderly and sick parents, obtained a real estate salesperson’s license in Nevada, engaged in the real estate profession for almost sixteen years and to all appearances, has lived an irreproachable and upright personal and professional life. Petitioner credibly testified and his character references corroborated that he has learned from his past mistake. At this time, Petitioner has established that he is fully rehabilitated and that the public does not need any protection from him.

RECOMMENDED ORDER

Based on the foregoing, on the effective date of the final order in this matter, Petitioner Donard Twardowski shall be granted an unrestricted real estate salesperson’s 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 19, 2018.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate