ALJDEC decisions subject to certification as final

19F-284-REL · Department of Real Estate · 2019-04-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 10, 2019 APPEARANCES: Geranard Kiev O’Neal represented himself. Assistant Attorney General Deian Ousonov represented the Department of Real Estate. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________ Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Commissioner of the Arizona Department of Real Estate. FINDINGS OF FACT 1. In January 2019, Petitioner submitted an application for a real estate sales person’s license to the Arizona Department of Real Estate (“Department”).[1] 2. On February 7, 2019, Department issued Petitioner a letter informing him of its intent to deny the application on the basis of A.R.S. §32- 2153(B)(2), (B)(7) and (B)(10).[2] 3. When Petitioner appealed,[3] the matter was set for hearing with the Arizona Office of Administrative Hearings, an independent state agency.[4] 4. The Notice of Hearing indicated the Department’s position that grounds existed to deny Petitioner’s original application for a real estate salesperson’s license based on the violations of A.R.S. §32- 2153(B)(5), (B)(7), and (B)(10). 5. At hearing, the Department presented the basis for its decision to deny Petitioner’s license application. The reasons include various convictions in Florida in 1998, 2001, and 2003. 6. In 1998, Petitioner was arrested for Battery on a law enforcement officer and Disorderly conduct.[5] The charge was later reduced and Petitioner pled not guilty; adjudication was later “withheld.” The incident sprang from Petitioner being intoxicated, walking/bumping into someone, trying to avoid a fight with that person by walking across the street and trying to tell a police officer what had happened; unfortunately, Petitioner thought the officer had asked him to show him what happened, which resulted in Petitioner touching the officer. 7. In 2001, Petitioner was arrested for driving while his license was suspended [suspended as a result of a 2000 DUI charge].[6] Petitioner subsequently plead guilty and was convicted of Driving while license was suspended and Providing a false name to the law enforcement officer.[7] 8. In May 2003, Petitioner was charged with Uttering a Forged Instrument (a 3rd degree felony) and Petit Theft (a 1st degree misdemeanor).[8] In October 2003, Petitioner subsequently plead guilty and the court ordered that an adjudication of guilt be “withheld.” The court ordered that Petitioner be placed on 18 months of probation, pay restitution, and pay fines. Probation was terminated in January 2005.

9. In its Notice of Hearing, the Department alleged that Petitioner had violated state law regarding those past actions, in conduct constituting fraud or dishonest dealings violating A.R.S. § 32- 2153(B)(5), in not being a person of honesty or truthfulness or good character violating A.R.S. § 32-2153(B)(7), and in the action involving forgery violating A.R.S. § 32-2153(B)(10). 10. Generally, a court having determined a factual basis for a plea, a voluntary guilty plea to a charged crime establishes that the person committed the acts that constituted the charged crime. 11. At hearing, Petitioner did not dispute the past incidents and outcomes. He openly and humbly acknowledged the incidents and his youth and irresponsible behavior at those times. 12. Regarding the 2003 check incident, Petitioner explained that he was or 26 years old, working to learn mortgage processing for a new firm and, when not a lot of loans had been closing that month, a secretary in the firm had written out a check to him for $200.00 so that he could have some money for the weekend. Petitioner indicated that he normally would have received $500.00 for completing the loan paperwork, and that he had previously received four $500.00 checks. Petitioner indicated that the deal was to cash the check and give the secretary back $100.00; he indicated that he had not really thought through the situation. He indicated that when the owner’s wife found out, she was adamant that he be prosecuted.[9] Petitioner openly and humbly indicated that he did plead guilty, that he had not been represented by counsel, and that he was ordered to do community service. 13. Petitioner has been in restaurant management work since 2004, has not been in any trouble since then; he indicated that here has never been a time since then that he has not excelled at his work. He has managed anywhere from four (4) to over two hundred fifty people at a time. 14. He moved to Arizona in 2013 in restaurant management for Taco Bell and later worked at Cain’s until December of 2015, after which he spent a year at Avanti. He is now married with two children and he and his family determined that he would take a break from the restaurant line of work; in 2106 he began to work in customer service in the insurance industry. In June 2018, he determined to work toward a real estate license, taking the classes and the tests before applying for the license. 15. Petitioner requested consideration of the circumstances in his life now and argued that those issues in the distant past were only a small segment of his life and did not reflect the man of good character that he is now. 16. At hearing, the Department argued that the license should not be granted as Petitioner plead guilty to various charges and was convicted of a forgery. The Department requested that the license denial be upheld. CONCLUSIONS OF LAW 1. This hearing was conducted in accordance with Arizona Revised Statutes (“A.R.S.”) § 41-1092.01 et seq. Petitioner has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See Arizona Administrative Code (“A.A.C.”) R2-19-119. 2. A.R.S. § 32-2153 provides 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 if it appears that the holder or applicant has:

5. Been guilty of any conduct constituting, whether of the same or different character than specified in this section, which constitutes fraud or dishonest dealings.

7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character.

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.

3. The Commissioner is authorized under A.R.S. § 32-2153 to deny licenses for a felony conviction or in circumstances demonstrating lack of good character. The Department’s concerns in these areas are legitimate. A person with a criminal record must be given close scrutiny and careful consideration when he or she applies for a professional license. In the event of past criminal convictions or the lack of good character, good character is not automatically regained by passage of time or self-serving testimony. However, the conviction of a crime is not a permanent bar to being licensed. 4. The Department removed, as one of its denial bases, the allegation of a violation of A.R.S. § 32-2153(B)(2) and, as indicated in the Notice of Hearing, noticed the allegation of a violation of A.R.S. § 32- 2153(B)(5). 5. Petitioner has the burden of proving by the preponderance of the evidence that he has resolved the conduct issues that led to the actions that resulted in the conviction, that the public would be protected from any such actions, and that he has sufficient good character and reputation to satisfy the statutory requirements for licensure as a real estate salesperson. 6. Based on the evidence presented, the Administrative Law Judge found that Petitioner has met this burden. Petitioner credibly explained and described himself and his past actions, all of which took place over fifteen (15) years ago. Petitioner demonstrated his changed character and credibly testified to the present circumstances. While Petitioner brought forth no objective character references in support, he demonstrated a determined competence and an approach to the present and his present circumstances that the Administrative Law Judge concludes provide assurance of the type of character and actions that the Department would expect from a real estate professional and, therefore, would be able to regulate in the real estate field. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Department’s denial be reversed and Petitioner’s appeal be granted for licensure.

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, April 30, 2019.

/s/ Kay A. Abramsohn Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

----------------------- [1] See Exhibit 1. The pending application was given the license number of SA682312000. [2] See Exhibit 10. [3] See Exhibit 11. [4] See Administrative Record. Although the Notice of Hearing contained a different pended license number, in comparison with the application and the denial letter, the Tribunal determined that the pended application number was the correct number to be used in this case. [5] See Exhibits 4 and 5. At hearing, Petitioner indicated this took place as he and friends who had been drinking were leaving a bar in an “entertainment district.” Petitioner indicated that he was given a pre- trial “deal” in which he was required to do a certain amount of community service. [6] See Exhibits 6 and 7. [7] At hearing, Petitioner acknowledged that it had been a stupid thing to do to try to give a name other than his own to the officer. [8] See Exhibits 8 and 9 [9] To his knowledge, the secretary who wrote the check had not been prosecuted.

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