ALJDEC decisions subject to certification as final

19F-132-REL · Department of Real Estate · 2019-01-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 18, 2018, at 1:00 p.m. APPEARANCES: Felicia Renee Blunt (“Petitioner”) appeared on her own behalf; the Arizona Department of Real Estate (“the Department”) was represented by Deian Ousounov, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT The Application 1. On or about August 21, 2018, Petitioner filed a Salesperson’s Application Form with the Department. Petitioner marked “yes” to the question, “Has the Applicant . . . Been convicted and/or entered into a plea agreement and/or a plea of NOLO CONTENDERE (no contest) to ANY misdemeanor 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?”[1] 2. Petitioner provided documents that indicated that on February 1, 1998, she made two unauthorized purchases in the amounts of $30.29 and $270.50 using another person’s credit card at a K-Mart. As a result, she was charged twice with forgery of under $500.00 in Shelby County, Tennessee Case Nos. 98-09022 and 98-09023.[2] On May 4, 1999, she pled guilty to two felony offenses and was sentenced to one year’s probation and required to pay a $500.00 fine.[3] 3. Petitioner submitted an explanation for the offenses with her application, which provided in relevant part as follows: I lived in Memphis, TN where I became homeless. I was sleeping in my car. I got a job doing medical records. I needed some clothes, gas, food. I went to see [an] apartment with a girl I just met at work and I did not bring in my ID so I had to wait inside. On [impulse] I [saw] the leasing agent leave her purse out. I took her credit card and got gas, clothing and food from Super K-Mart. . . . I got pulled over for not stopping at a stop sign and was arrested. I was placed on probation in Memphis. My probation was transferred to Wisconsin when I moved back home. I am not happy about my actions and I did not ever do that again. I changed my life around and got a job. In 2004 I opened TJ’s Family Daycare. I closed the daycare in 2013. In 2005 I got a Wisconsin Real Estate License that I had until December 2010. I moved to San Antonio TX and never got my real estate license there. In 2009 I got my Insurance License in Wisconsin and in Texas. In 2012 I open[ed] Daycare in Texas. I never got in any trouble with my license. I take my life serious[ly] and I have learned a valuable lesson about making better choices.[4]

4. On August 30, 2013, an Order of Deferred Adjudication was entered against Petitioner for Welfare Fraud in an amount between $1,500.00 and $20,000.00 in Bexar County, Texas, based on her plea of nolo contendere. She was sentenced to pay court costs of $814.00 and required to pay restitution in the amount of $5,586.65.[5] 5. On September 11, 2015, the Bexar County Court entered a Dismissal and Discharge from Deferred Adjudication, finding that Petitioner “has shown progress and adherence to the conditions of Deferred Adjudication . . . .”[6] 6. Petitioner filed with her application an explanation for the nolo contendere plea to Welfare Fraud, denying that the conviction was based on an intentional act. Petitioner explained in relevant part as follows: I had a tumor that affected my memory and my thyroid levels [were] very high. My tumor caused me to forget a lot! I was forgetting to pay bills and I got a job before I started in home daycare. I did not like the job so I was going to quit. I was behind on my bills so I stayed working for a few months, well I forgot to report (I honestly thought I did). Once I open[ed] the daycare I reported and came off food stamps. My health got worse, but I would not go to the doctor. (I did not know about the tumor or my thyroid at the time.)

When I went to the doctor in October 2012 I found out and closed the daycare because my business suffered. When I reapplied for food stamps I listed my work history 60 days later I was charged with welfare fraud. I was trying to fight my case, but I could not afford a lawyer. I moved back to Wisconsin with my mother to have brain surgery but because my thyroid levels [were] not getting better we had to get my levels down. Because of my medical history they gave me 2 yrs. to pay back $5,586.65 that was for food stamps and medical care for my children (5). The judge said if I pay it back the case would be dismissed (Deferred Adjudication). On 8/29/2015 the case was dismissed. I did not do this intentionally. Please do not hold this against me. I work very hard every day to become a better person. I am currently starting my foundation called Count Our Blessing foundation to help homeless people. I currently help a lot of people in my community. I love to help others. I also collect household items, food, clothing etc. to help others in need, but they are not homeless. I donate and provide toys and gifts for children in need. I love selling houses it is a passion of mine and for a while I told myself that I could not do it because it was too much for me to remember to take the test. Because I had 2 brain surgeries I said forget it! Because my faith I was able to pass my test. I am asking to be granted my Real Estate License because I deserve them and I will not let you down. I am saved. I currently hold my Notary License in Arizona. I will be doing real estate full time.[7]

7. On October 18, 2018, the Department denied Petitioner’s application to be licensed as a real estate salesperson because it found she did not meet the qualifications for licensure pursuant to A.R.S. §§ 32-2123, 32-2124, and 32- 2153, based on her convictions for Welfare Fraud and Forgery. The Department stated that it considered Petitioner’s conduct to have violated A.R.S. § 32-2153(B)(2), (B)(5), (B)(7), and (B)(10).[8] 8. On October 19, 2018, Petitioner requested a hearing on the denial. Petitioner stated that she had changed since 1998 and 2013. She substantially repeated her earlier explanations for the three offenses, but with respect to the 1998 offense, Petitioner stated that when the leasing agent left her alone in the office with the agent’s purse when the agent showed Petitioner’s friend the apartment, “I debated for a while, but I really was in need and on impulse I went to get money but she only had credit card so I took her card and went to get clothing and food from Super K-Mart and gas from a gas station.”[9] 9. The Department referred Petitioner’s request to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. On November 8, 2018, the Department issued a Notice of Hearing that charged A.R.S. § 32- 2153(B)(2), (B)(5), and (B)(10) as grounds to deny Petitioner’s license application. 10. A hearing was held on December 18, 2018. The Department submitted nine exhibits and presented the testimony of Brandon Stuart, a Senior Investigator with the Department. Petitioner submitted seventeen exhibits, testified on her own behalf, and presented the testimony of her mother, Cynthia White. Additional Hearing Evidence 11. Mr. Stuart testified that the Department’s most important duty is to protect the public in Arizona through licensing. Because real estate transactions typically involve large sums of money and frequently are the largest transactions that buyers and sellers of real estate make, the Department is concerned about felony convictions, especially those that involve fraud, forgery, or violence against another person. The Department feels that if someone has been dishonest in the past, they are more likely to be dishonest in the future. 12. Mr. Stuart stated that Petitioner did not seem to be forthcoming because her statement in her request for hearing that she debated whether to take the leasing agent’s credit card seemed to contradict her statement in the explanation that she attached to her application that she took the card on impulse. 13. Petitioner testified consistently with the explanations that she attached to her application for licensure and her request for hearing. As noted above, she stated in her request for hearing both that she debated whether to take the credit card and that she finally took it on impulse. 14. Petitioner testified that in 1998, she was desperate. She did the wrong thing and stole a credit card to purchase $270 in clothes and food and $30 in gas. She regrets that decision. 15. Petitioner was licensed as a real estate salesperson in Wisconsin between April 24, 2006, and December 14, 2010, when the license expired. Petitioner’s Wisconsin real estate salesperson’s license was never disciplined.[10] 16. Petitioner operated a licensed child care facility named TJ’s Family Daycare at three different addresses in Wisconsin between July 28, 2004, and September 6, 2010. She closed all three facilities voluntarily.[11] 17. Petitioner was also licensed as an insurance agent in Wisconsin on March 18, 2009. The license expired on June 30, 2011.[12] 18. Petitioner testified that she closed the day care in Wisconsin after her husband, the father of her five children, passed on June 7, 2010.[13] Petitioner testified that after she closed the third day care facility in Wisconsin, she moved to San Antonio, Texas with her five children. 19. Petitioner testified that after she moved to Texas, she applied for food stamps in 2011. Because one of her children is autistic and has medical issues, she took a job she could work while her children were in school. 20. Petitioner testified that she did not feel well and was forgetful after she moved to Texas, but did not immediately go to a doctor. Although she was honest with welfare officials and told them that she had a job, she forgot to give them her pay stubs. Eventually, she quit the job and opened a day care facility in Texas.[14] 21. Petitioner testified that she closed the day care facility in Texas after her symptoms worsened because she feared that she would not be able to adequately care for the children. 22. Petitioner submitted a printout of an article by Dr. Eric from the website www.naturalendocrinesolutions.com, that “[m]any people with thyroid and autoimmune thyroid conditions have problems with memory loss, as well as difficulty concentrating. This affects people with both hypothyroidism and hyperthyroidism, as well as autoimmune thyroid conditions such as Graves’ Disease . . . .”[15] 23. Petitioner testified that when she was first charged with Welfare Fraud in Texas, she intended to fight the charge because she did not intentionally defraud the State of Texas. Because she could not afford an attorney, a public defender was appointed to represent her. 24. Petitioner testified that due to her worsening health conditions, she moved back to Wisconsin, where she and her five children could live with her mother. On February 10, 2012, Petitioner was licensed as a property and casualty insurance producer in Wisconsin. On October 23, 2012, Petitioner was licensed as a life, accident, and health insurance producer in Wisconsin. The license for both lines of insurance became inactive on February 10, 2014.[16] 25. Petitioner submitted medical records for various procedures in Wisconsin in 2013 and 2014.[17] 26. Petitioner testified that her public defender in Texas notified her of several hearings in Texas that she would have to attend if she intended to fight the welfare fraud charge. The public defender also stated that the state was more interested in getting its money back than in sending her to prison. 27. Petitioner testified that she agreed to the deferred adjudication after her public defender told her she would have two years to pay the fine so that she could focus on her health. 28. Petitioner acknowledged that the judge informed her of the consequences of the deferred adjudication. Petitioner testified that she understood the nolo contendere plea to mean ”not guilty” or not “not guilty.” After she told the judge what was going on in her life, the judge offered the deferred adjudication. 29. Petitioner testified that she was diagnosed with Graves’ disease that required surgery. She could not have the brain surgeries until she got her thyroid levels under control and so started radiation on her thyroid in 2013. Petitioner testified that because the radiation did not work, she underwent a total thyroidectomy in July 2014.[18] 30. Petitioner testified that after she, her mother, and children moved to Arizona, they started a charitable 501(c) organization called Count Our Blessing Foundation to help people in need and that the organization was registered with the IRS in February 2018.[19] Petitioner testified that she licensed as a notary in Arizona through the business, Count Our Blessing Foundation. The license will expire on January 31, 2022.[20] 31. Petitioner testified that she also works with others to restore their credit because, after her illness, she had to work to restore her own credit. Petitioner testified that although she has access to others’ social security numbers, she would never use the information to benefit herself. Petitioner testified that she wants to set a good example for her children. She cannot tell them the importance of good credit unless she takes care of her own credit. Her children now are seventeen, sixteen, fourteen, eleven, and nine years old. She wants her children to learn from her mistakes. She is raising her children as Christians and trying to teach them about good credit, value, character, and charity. She wants to be a hero in their eyes. 32. Petitioner submitted a letter of reference from Lakesha Wilson, whom Petitioner identified as a person she worked with as a real estate salesperson in Wisconsin, in relevant part as follows: For the past thirty years I have known Felicia and have nothing but positive things to say. Before moving to her current state of residency she provided a number of services for myself and other Wisconsin [residents]. With her knowledge and talents she was able to obtain an amazing opportunity for my family. . . .

The outstanding service, professionalism, and most importantly, the expertise of Felicia Blunt as a real estate professional. I recognize the differences between excellent, average, and mediocre performance. From my experience with Felicia, she has demonstrated excellent customer focus and service, excellent market knowledge, an amazing work ethic, and genuine personal and professional integrity. . . .[21]

33. Petitioner submitted a letter of reference from Christina Kern, whom Petitioner identified as someone who works with Petitioner’s son every week, in relevant part as follows: It is my pleasure to be writing a recommendation for Felicia Blunt who I have gotten to know well over the past year. Felicia is a compassionate woman who works hard and strives to do great things.

Since I have known Felicia, she has been very passionate about helping others less fortunate in her community as well as in other cities throughout Arizona. Her whole family gets involved in collecting and distributing items for the homeless and they have volunteered on the weekends and during the holiday season.

Felicia is a wonderful person and would be an asset to any organization and has shown to always put all of her efforts into what she does.[22]

34. Ms. White testified that after Petitioner moved back in with her in Wisconsin, Ms. White took care of the kids while Petitioner went back and forth to doctor’s appointments. Petitioner was in bad shape, would urinate every two minutes, and forget things. It was hard for Petitioner to stay focused. She learned a lot about what Petitioner was going through at the hearing. 35. Ms. White testified that when Petitioner was living in Memphis, Tennessee in 1998, she had just turned 18 years old. Petitioner had grown up not knowing her father and went back to meet her father’s family. Petitioner had never been in trouble before then. 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 the 1999 convictions for forgery and the 2013 nolo contendere plea to welfare fraud. Petitioner bears the burden of proof to establish that she meets statutory qualifications for a real estate salesperson’s license by a preponderance of the evidence.[23] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[24] A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”[25] The legislature established the Department to protect “the public health, safety and welfare by regulating the sale of real estate . . . .”[26] A real estate salesperson’s license is a privilege, not a right. The Department has discretion[27] to grant or deny a license to an applicant under A.R.S. § 32-2153(B).[28] Petitioner acknowledged that in 1999, she was convicted twice of forgery for using another person’s credit card to buy $30.29 for gas and $270.50 for clothes and groceries. Petitioner acknowledged that on August 20, 2013, the court entered an Order of Deferred Adjudication based on her plea of nolo contendere to welfare fraud and her agreement to repay $5,586.65 to the State of Texas. Grounds therefore exist under A.R.S. § 32-2153(B)(2), (B)(5), and (B)(10) for the Department to deny Petitioner’s application for a real estate salesperson’s license.[29] A person who has successfully completed her sentences and had her civil rights restored, like Petitioner, may not be disqualified from employment by the state or any of its agencies.[30] But such a person may be denied employment or a certificate to engage in an occupation “by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or occupation for which the . . . certificate is sought.”[31] A license applicant therefore may be required to disclose the fact of conviction, even if the conviction has been vacated.[32] Because the criminal acts forming the basis of the conviction still occurred, even if certain legal consequences of the conviction have been obviated, the fact of the conviction is a fair area of inquiry and, in licensing or certification proceedings, “‘preclusion from certain types of employment is not the kind of penalty or disability which is eliminated . . . . Such preclusion is intended for the protection of the public, not as further punishment for the convicted felon.’”[33] The issue is whether, in light of Petitioner’s 1999 convictions for forgery and 2013 nolo contendere plea for welfare fraud and the positive acts that she has performed since, Petitioner at this time can be trusted to be responsible in her dealings with her clients and members of the public if the Department grants her an real estate salesperson’s license. Among the factors that may be considered in determining rehabilitation are the extent of the criminal record, the length of time that has elapsed since the offense was committed, the nature of the offense, any applicable mitigating circumstances, the degree to which the applicant participated in the offense, whether the applicant has completed her sentence, whether the applicant has paid restitution, and whether she has done subsequent positive actions.[34] 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 offenses that led to the 1999 convictions for forgery occurred more than twenty years ago, when Petitioner was very young, away from home, and in difficult circumstances, the amounts were relatively insignificant, Petitioner successfully completed her probation, Petitioner’s explanations for the forgeries, although not especially articulate, were not materially inconsistent, and Petitioner credibly expressed remorse for her actions. The two 1999 convictions, standing alone, would not justify unconditional denial of Petitioner’s application for a real estate salesperson’s license. Fourteen years later, however, Petitioner pled nolo contendere to welfare fraud. Petitioner credibly testified about the health conditions that led to the criminal charge and about the treatments that led to nolo contendere plea in exchange for the Order of Deferred Adjudication. Petitioner timely paid the restitution required by the court. Protection of the public does not require an unconditional denial of Petitioner’s application to be licensed as a real estate salesperson. Although hopefully the medical conditions that led to Petitioner’s 2013 nolo contendere plea to felony welfare fraud have resolved, protection of the public requires close monitoring of a conditional license at this time. RECOMMENDED ORDER Based on the foregoing, it is ordered granting Petitioner Felicia Renee Blunt a provisional real estate salesperson’s license, provided she satisfies all terms, conditions and restrictions set forth in the Commissioner’s Order. Petitioner should be issued a two (2) year provisional salesperson’s license effective upon the effective date of the final order. It is further ordered imposing the following conditions on Petitioner’s provisional license: 1) Except as otherwise provided, only periods of active licensure shall accrue to the provisional license period. 2) 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. 3) During the provisional license period, Petitioner shall be licensed under the supervision of a practice monitor, subject to the following terms and conditions: a) 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 effective date of the final order, whichever applies, any designated broker employing Petitioner shall submit a signed statement to the Department’s Compliance Officer (“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, agrees to act as Petitioner’s practice monitor or appoints an associate broker who qualifies under the terms of the final order, and agrees to comply with the following requirements: i) 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. ii) 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 sign a statement certifying that the associate broker has received and read a copy of the final order, agrees to act as Petitioner’s practice monitor, and agrees to comply with the requirements set forth in the Commissioner’s Order. iii) The proposed designated broker or associate broker who will act as Petitioner’s practice monitor is subject to review and written approval by the Compliance Officer. This written approval may be withdrawn in the sole discretion of the Compliance Officer at any time upon written notice from the Compliance Officer to Petitioner and the practice monitor. iv) The practice monitor shall submit quarterly written reports to the Compliance Officer that attest to Petitioner’s workload as well as to the quality of Petitioner’s services and client relationships. v) The practice monitor shall immediately submit a written report to the 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. vi) If the practice monitor is an associate broker, the designated broker shall sign and date all reports required pursuant to the Commissioner’s Order, noting that the designated broker has accepted and approved the associate broker’s report. vii) No practice monitor shall be required if Petitioner places her license in inactive status, or allows the license to expire; however, Petitioner’s license may not be activated until Petitioner’s new broker complies with the terms of the final order. viii) In the event Petitioner changes employment, Petitioner shall immediately notify the Compliance Officer and obtain a new practice monitor who qualifies under the terms and conditions hereof. The new practice monitor must qualify and be approved by the Compliance Officer prior to Petitioner’s hire by the new employing broker. ix) 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 Commissioner’s Order, or there is a new designated broker for Petitioner’s existing employer, Petitioner, her practice monitor and/or her designated broker shall immediately notify the Compliance Officer. Unless Petitioner obtains a new practice monitor who qualifies and is approved under the terms and conditions of the final order, termination of Petitioner’s employment shall be required within seventy-two (72) hours of the time Petitioner loses the practice monitor. x) 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 Compliance Officer that her license is inactive. Petitioner shall obtain a new practice monitor prior to reactivating Petitioner’s license. xi) In the event Petitioner discontinues active employment as a real estate licensee in the State of Arizona, she shall immediately notify the Compliance Officer and her practice monitor, who shall submit the proper form to the Department to place Petitioner’s license in inactive status. b) Petitioner shall attend nine (9) hours of approved continuing education classes in the categories of Commissioner’s Standards and Contract Law. Within forty-five (45) days after entry of the final order, Petitioner shall submit in writing to the Compliance Officer the course sponsor, title and number of the classes she proposes to take, and obtain the approval of the Compliance Officer. Petitioner shall submit certificates evidencing course completion to the Compliance Officer within ninety (90) days after entry of the final order. 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. (4) If the Commissioner determines that Petitioner has failed to comply with any of the terms of the final order, or is convicted of any class 1 misdemeanor or any felony, the Commissioner may summarily suspend Petitioner’s real estate license and/or institute any further disciplinary proceedings as the Commissioner deems appropriate. Petitioner shall have the right to appeal such summary suspension pursuant to A.R.S. § 41-1092 et seq. 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, January 7, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] The Department’s Exhibit 1 at 2. [2] See the Department’s Exhibits 2 and 3. [3] See id. It is not clear from the records whether Petitioner was fined a total of $500.00 or $500.00 for each offense. [4] The Department’s Exhibit 4. [5] See the Department’s Exhibit 5. [6] The Department’s Exhibit 6. [7] The Department’s Exhibit 7. [8] See the Department’s Exhibit 8. [9] The Department’s Exhibit 9. [10] See Petitioner’s Exhibit 1. [11] See Petitioner’s Exhibit 2. [12] See Petitioner’s Exhibit 5. [13] See Petitioner’s Exhibit 17. [14] See Petitioner’s Exhibit 3. [15] Petitioner’s Exhibit 16. [16] See Petitioner’s Exhibit 4. [17] See Petitioner’s Exhibits 6, 7, 8, 9, 10, 11, and 12. [18] See Petitioner’s Exhibit 12. [19] See Petitioner’s Exhibit 13. [20] See Petitioner’s Exhibit 14. [21] Petitioner’s Exhibit 15. [22] Petitioner’s Exhibit 15. [23] 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). [24] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [25] Black’s Law Dictionary at page 1064 (6th ed. 1990). [26] See Laws 1992, Ch. 14, § 3. [27] See A.R.S. § 32-2153(B) (“The commissioner may . . . deny the issuance of a license” under certain circumstances (emphasis added)). [28] See, e.g., Matter of Rivkind, 164 Ariz. 154, 160-61, 791 P.2d 1037, 1043-44 (1990) (“[C]ourts are uniformly impressed by an attorney’s sincere efforts at rehabilitation and contrition, especially if such efforts demonstrate that the public and the legal system are unlikely to suffer a risk of future misconduct.”); Application of Spriggs, 90 Ariz. 387, 388-90, 368 P.2d 456 (1962) (where 4 years had passed since conviction for income tax evasion and evidence showed rehabilitation, applicant readmitted to bar without being required to pass bar exam again); Ulrich v. Board of Funeral Service, 289 Mont. 407, 961 P.2d 126 (1998) (“[A]n applicant whose license has been denied or revoked due to a criminal conviction . . . is entitled to apply for reinstatement and he is entitled to a full hearing . . . .”); cf. Matter of Wines, 135 Ariz. 203, 205-06, 660 P.2d 454, 456-57 (1983) (after considering circumstances of conviction as well as respondent’s poor prior record, Arizona Supreme Court did not disbar attorney but instead suspended him for a period of 5 years, with credit for 16 months interim suspension during pendency of proceedings). [29] A.R.S. § 32-2153(B) provides several grounds on which the Commissioner of the Department may deny an application for a real estate salesperson’s license, including the following: 2. Been convicted in a court of competent jurisdiction in this or any other state of a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense. . . . . 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. . . . . 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. [30] See A.R.S. § 13-904(E). [31] Id. [32] See Russell v. Royal Maccabees Life Ins. Co., 193 Ariz. 464, 470, 974 P.2d 443, 449 (App. 1998). [33] Id. at 469, 974 P.2d at 448 (quoting Adams v. County of Sacramento, 1 Cal. Rptr. 2d 138, 143-44 (App. 1991)). [34] Cf. A.R.S. § 41-619.55(E). This statute sets forth the factors that should be considered in determining whether an applicant for a Fingerprint Clearance Card has established rehabilitation. Although this statute does not govern this proceeding, it is the only Arizona statute in which the legislature has explicitly set forth the factors that should be considered to determine whether a license applicant has demonstrated rehabilitation.

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