ALJDEC decisions subject to certification as final
18F-DI-314-REL · Department of Real Estate · 2018-07-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
In the Matter of the Original Application for Real Estate Salesperson License of:
MCCARTY, JUSTIN WAYNE, holder of license number SA674003000 (Candidate),
Petitioner.
No. 18F-DI-314-REL
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: June 26, 2018
APPEARANCES: Justin Wayne McCarty on his own behalf; Ryan Krench, Esq. for the Department of Real Estate
ADMINISTRATIVE LAW JUDGE: Thomas Shedden
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FINDINGS OF FACT
On May 21, 2018, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing setting the above-captioned matter for hearing on June 26, 2018 at the Office of Administrative Hearings in Phoenix, Arizona.
The Notice of Hearing provided that the hearing was being held to determine whether grounds exist to affirm the intent to deny Petitioner Justin Wayne McCarty’s application for a real estate salesperson’s license.
Through the Notice of Hearing, the Department alleges that Mr. McCarty has violated Ariz. Rev. Stat. sections 32-2153(B)(2), (B)(5), (B)(7), (B)(9), and (B)(10). At the hearing the Department withdrew the allegation that Mr. McCarty violated subsection (B)(2).
The Department presented the testimony of investigator Jim Ledwith. Mr. McCarty appeared and testified on his own behalf.
On April 5, 2018, the Department received Mr. McCarty’s application for a salesperson’s license.
With his application, Mr. McCarty disclosed that he had been convicted of three felonies and three misdemeanors, and that he was in a period of deferred judgment for an offense.
On August 22, 2003, Mr. McCarty pleaded guilty to, and was convicted of, possession of marijuana, a class 6 felony, and possession of paraphernalia, a misdemeanor (Navajo County Superior Court, case CR0020020311). Mr. McCarty was sentenced to probation, but on December 15, 2005, he was found to have violated the terms of his probation and was sentenced to one year in prison. Through an Order dated April 16, 2016, this conviction was vacated and Mr. McCarty’s civil rights were restored.
On December 4, 2003, Mr. McCarty pleaded guilty to, and was convicted of, possession of marijuana, a misdemeanor (Maricopa County Superior Court, case CR2003-021484). Mr. McCarty was sentenced to probation. On December 7, 2004, he was found to have violated the terms of his probation and was sentenced to 116 days in jail.
On December 4, 2003, Mr. McCarty pleaded guilty to, and was convicted of, possession of marijuana, a misdemeanor (Maricopa County Superior Court, case CR2003-022518). Mr. McCarty was sentenced to probation. On December 7, 2004, he was found to have violated the terms of his probation and was sentenced to 116 days in jail.
On December 17, 2004, Mr. McCarty pleaded guilty to, and was convicted of, leaving the scene of an injury accident, a Class 6 felony (Maricopa County Superior Court, case CR2004-124897). Mr. McCarty was sentenced to probation. On November 2, 2005, he was found to have violated the terms of his probation and was sentenced to one year in prison. Through an Order dated March 9, 2016, this conviction was set aside and Mr. McCarty’s civil rights were restored.
On November 2, 2005, Mr. McCarty was convicted of forgery, a Class 4 felony (Maricopa County Superior Court, case CR2005-118274). Mr. McCarty was sentenced to two years in prison. Through an Order dated March 9, 2016, this conviction was set aside and Mr. McCarty’s civil rights were restored.
The forgery conviction resulted from an attempt to cash a check that was either a forged instrument or that contained false information.
On or about August 26, 2016, Mr. McCarty was arrested and charged with DUI/Impaired to the slightest degree and Disorderly Conduct/DV only (City of Page Magistrate Court, case 20160373 TR). On October 25, 2016 a Deferred Sentence was issued in the DUI charge, with Mr. McCarty required to attend alcohol screening/counseling, to attend couples counseling, to perform community service, and to remain law-abiding until October 2018. Mr. McCarty has completed the alcohol screening, counseling, and community service and he has remained law-abiding.
Based on a Motion by the Page City Attorney, the Disorderly Conduct/DV Only charge was dismissed without prejudice.
Through a letter dated April 19, 2018, the Department informed Mr. McCarty that his application was denied based on his criminal convictions and his October 25, 2016 deferred sentencing for DUI.
Mr. McCarty testified that he understands why the Department denied his application. He explained however that he left home at the age of sixteen and fell in with the wrong people and that he had suffered from addictions, which led him to make bad choices.
Mr. McCarty testified that the forgery conviction marked a turning point and that he has been changed since 2007 when he was released from prison. He exercises and hikes and has a positive outlook. Mr. McCarty has a teenage daughter and he and his family spend time camping and engaging in other outdoor activities.
Mr. McCarty testified that he has too much to lose to cause him to engage in the type of bad behavior that he engaged in prior to 2007.
Regarding the October 2016 arrest, this resulted from an argument with his wife and mother-in-law. Mr. McCarty accepted responsibility for his actions and testified to the effect that the counseling he attended (and continues to attend) taught him (and his wife) to step away when emotions run high and address issues/problems at a later time.
Mr. McCarty has been a licensed salesperson in Utah since December 2016, during which time there have been no complaints against him.
CONCLUSIONS OF LAW
Mr. McCarty bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(1).
The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119(A).
A preponderance of the evidence is:
The 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.
Black’s Law Dictionary 1373 (10th ed. 2014).
Ariz. Rev. Stat. sections 32-2153(B) provides in pertinent part:
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:
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5. Been guilty of any conduct, whether of the same or a different character than specified in this section, which constitutes fraud or dishonest dealings.
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7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character.
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9. Violated the terms of any criminal or administrative order, decree or sentence.
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10. Violated any federal or state law, regulation or rule that relates to real estate or securities or that involves forgery, theft, extortion, fraud, substantial misrepresentation, dishonest dealings or violence against another person or failure to deal fairly with any party to a transaction that materially and adversely affected the transaction. This paragraph applies equally to violations of which the licensee was convicted in any lawful federal or state tribunal and to any admissions made in any settlement agreement by the licensee to violations.
The fact that a criminal conviction has been set aside does not render that conviction a nullity and the Department may consider Mr. McCarty’s convictions in its licensing determination. See Parsons v. Ariz. Dep’t of Health Servs., 242 Ariz. 320, 395 P.3d 709 (App. 2017).
Mr. McCarty was convicted of forgery, which is a violation Ariz. Rev. Stat. sections 32-2153(B)(5), (B)(7) and (B)(10).
Mr. McCarty was found to have violated the terms of his probation agreements, which are violations of Ariz. Rev. Stat. sections 32-2153(B)(9) and (B)(7).
Mr. McCarty’s other convictions are violations of Ariz. Rev. Stat. section 32-2153(B)(7).
Consequently, the Department’s Commissioner has authority to deny Mr. McCarty’s application or to issue a provisional license.
Considering the facts and circumstances of this matter, particularly that Mr. McCarty presented no character witnesses or witnesses to corroborate his testimony about the October 2016 arrest, Mr. McCarty has not met the burden of proof to show that his application should be granted.
RECOMMENDED ORDER
IT IS ORDERED that Justin Wayne McCarty’s application for a real estate salesperson’s license is denied.
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 is five days after the date of that certification.
Done this day, July 13, 2018
/s/ Thomas Shedden
Thomas Shedden
Administrative Law Judge
Transmitted electronically to:
Judy Lowe, Commissioner
Arizona Department of Real Estate