ALJDEC decisions subject to certification as final

19F-038-REL · Department of Real Estate · 2018-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 3, 2018 APPEARANCES: Petitioner Justin Fish (“Petitioner”) appeared on his own behalf. The Arizona Department of Real Estate (“Department”) was represented by Assistant Attorney General Deian Ousounov. ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _____________________________________________________________________ FINDINGS OF FACT On April 22, 2008, the Department had issued a license, No, SA626946000, to Petitioner; it would have expired on April 30, 2010.[1] The Department revoked that license on March 10, 2010.[2] On July 31, 2018, Petitioner submitted to the Department a Salesperson Application Form (“Application”) to be licensed as a real estate salesperson.[3] On that Application, Petitioner answered “yes” to the questions regarding prior licenses being discipline, suspended or revoked and “yes” to a question regarding misdemeanor convictions. With the Application, Petitioner submitted a disclosure statement identifying several arrests and convictions and his explanation regarding current matters. 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: a. On or about April 19, 1999, Petitioner pleaded guilty to and was convicted of resisting arrest, a misdemeanor, in Maricopa County Superior Court, case number CR1999-090981. Petitioner was sentenced to 18 months of probation.[4] b. On November 18, 2008, Petitioner pleaded guilty to and was convicted of Assault, a misdemeanor, in Maricopa County Superior Court, case number CR2007-166894.[5] Petitioner was sentenced to 60 days in jail, two years of probation, and ordered to pay restitution, fines and fees. c. On December 29, 2009, Petitioner pleaded guilty to and was convicted of Extreme DUI, with blood alcohol count (BAC) .15 - .19 1st, a misdemeanor, in Scottsdale City Court, case number M- 07521-TR-[number redacted].[6] Petitioner was sentenced to 30 days in jail, ordered to install an ignition interlock device, participate in alcohol screening, and ordered to pay fines and costs. d. On January 22, 2010, Maricopa County Superior Court found that Petitioner had violated the terms of probation [Case No. CR2007- 166894]; as a result, the Court revised the probation expiration date to November 18, 2010.[7] e. On March 10, 2010, the Department revoked Petitioner’s real estate license based the 2008 conviction [Case No. CR2007- 166894] and Petitioner’s failure to have timely reported that conviction to the Department.[8] f. On March 3, 2015, Petitioner pleaded guilty and was convicted of Resisting Arrest, a misdemeanor in Oregon, in Jackson County Circuit Court, case number 14CR27745.[9] Petitioner was sentenced to 11 months of probation. On August 6, 2018, the Department sent Petitioner, via certified mail, a letter of 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, on the convictions and actions detailed above.[10] The Department informed Petitioner that his conduct had violated A.R.S. §§ 32- 2153(A)(24), (B)(7), and (B)(10). The Department notified Petitioner that it intended to deny his license application. The Department received Petitioner’s appeal on August 13, 2018. At hearing, Petitioner acknowledged he previously had an alcohol problem but that he had really limited his drinking beginning in 2009 and had stopped drinking in 2012 due to life changes and family and having a daughter born. He indicated that the 2014 incident, resisting arrest, was due to alcohol but was an isolated circumstance where he had some alcohol at a party. Petitioner indicated that such horrible judgment and mistakes would not happen again as he is just not that person anymore. Petitioner requested that he be given the opportunity to go back to the real estate business and that being able to do so would be flexible so that he could still be involved in his family and coaching kids. Petitioner noted that, while he was licensed before, there had not been complaints against him and he had not perpetrated any fraud on anyone. Petitioner requested that the Department consider issuing a provisional license to him, indicating that he has a friend in Oregon who is a broker and would be a mentor to him in the business. Petitioner does not have a local broker who has offered to be a mentor but he indicated that he was certain he could find one if that is what was required. In closing, Petitioner indicated that he had submitted letters of reference to the Department. However, these letters were not presented to the hearing record, either by the Department or Petitioner. Petitioner did not bring forward any testimony of such character references. The Department’s position is that the Application contained false or misleading information, that Petitioner had convictions and violated Court orders, and had committed violent acts against others.[11] The Department argues that the above-detailed convictions and actions demonstrate that Petitioner is not a not a person of honesty, truthfulness, or good character in violation of A.R.S. §§ 32-2153(B)(1), (B)(7), (B)(9), and (B)(10). The Department noted its overall concerns of a licensee’s truthfulness and protecting the public. The Department noted that, in order to have a provisional license, a person must be mentored by a designated broker in Arizona who would be required to submit various reports to the Department. CONCLUSIONS OF LAW The Department bears the responsibility to protect the public through its enforcement of licensing statutes.[12] 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.[13] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[14] 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.”[15] 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: 1. Procured or attempted to procure a license under this chapter … by fraud, misrepresentation or deceit, or by filing an original or renewal application which is false or misleading. ..… 7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character. ….. 9. Violated the terms or any criminal or administrative order, decree or sentence. 10. Violated any federal or state law, regulation or rule that relates to real estate or securities or that involves forgery, theft, substantial misrepresentation, dishonest dealing or violence against any person ….

The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. The Department’s concern in this case is understandable. A person with a criminal record must be given close scrutiny and careful consideration when he or she applies for a professional license. The hearing record demonstrated that, within the past 10 years, Petitioner engaged in a pattern of activity resulting in criminal convictions. Petitioner relates these convictions to his now-past use of alcohol. While none of Petitioner’s criminal actions relate to dishonesty or fraud in the business of real estate, the convictions remain of concern as to the good character of Petitioner. Once good character is shown to be absent, it is not automatically regained by the mere passage of time or simply indicating that the past is the past. However, the conviction of multiple crimes is not a permanent bar to being licensed. An applicant has the burden of proving by a preponderance of the evidence that he or she has resolved the issues that led to the actions and convictions and to establish that he or she has sufficient good character and reputation to satisfy the statutory requirement for licensure as a real estate salesperson. In this case, the Administrative Law Judge concludes that Petitioner has not met his burden. Based on the hearing record, the Administrative Law Judge concludes that the Department would not fulfill its statutory mandate by licensing Petitioner as a real estate salesperson at this time. The hearing record lacked support of present-day good character and the criteria for possibility of a provisional licensure were absent. RECOMMENDED ORDER The Commissioner shall affirm the Department’s decision to deny Petitioner’s Application for a real estate salesperson’s license and dismiss Petitioner’s 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, October 30, 2018 /s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] Exhibit 1; also Exhibit 5. [2] Exhibit 11. [3] Exhibit 2. [4] This conviction was not disclosed on Petitioner’s 2008 or 2018 Application. Exhibits 5 and 2, respectively. At hearing, Petitioner indicated that he had not remembered the conviction. [5] Exhibit 8. [6] Exhibit 9. [7] Exhibit 10. [8] Exhibit 11. [9] Exhibit 12. [10] In its letter, the Department noted another conviction, a DUI in “2001” in Scottsdale City Court for which no records were located at this time; a 2002 DUI had been disclosed by Petitioner on his 2008 application. Exhibit 5. [11] The “violent acts” the Department considered were acts in regard to Petitioner’s 2008 Assault conviction. At hearing, Petitioner indicated that he hadn’t assaulted the taxi driver but had pushed him into a bush and, when he was called down to the police station with regard to the incident, he had been inappropriately charged with a felony (endangerment) so that they could arrest him and proceed with the matter. [12] See Sigmen v. Arizona Dept. of Real Estate, 169 Ariz. 383, 388, 819 P.2d 969, 974 (Ct. App. 1991). [13] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [14] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [15] Black’s Law Dictionary at 1220 (8th ed. 1999).

-----------------------

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826