ALJDEC decisions subject to certification as final

19F-302-REL · Department of Real Estate · 2019-05-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 26, 2019 APPEARANCES: Ronald Washington, Esq. for Petitioner, Deian Ousounov, Esq. for the Department of Real Estate ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On March 21, 2019, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing setting the above- captioned matter for hearing on April 26, 2019 at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing provided that the hearing was being held to determine whether grounds exist to affirm the intent to deny Petitioner Michael Sylvio Calegari’s application for a real estate salesperson’s license. 3. Mr. Calegari was previously known as Michael Christopher Small. 4. Mr. Calegari was adopted as an adult by his step-father on September 20, 2016, and he took his adoptive father’s name on that date. 5. Throughout this Decision he is referred to as Mr. Calegari, but in many of the exhibits he is referred to by his former name. 6. Through the Notice of Hearing, the Department alleges that Mr. Calegari has violated Ariz. Rev. Stat. sections 32-2153(B)(2), (B)(7), and (B)(10). 7. The Department presented the testimony of Robin King its Audits/Investigations manager. Mr. Calegari appeared and testified on his own behalf. 8. On February 13, 2019, the Department received Mr. Calegari’s application for a salesperson’s license. It issued an Intent to Deny Application letter on February 15, 2019. 9. In response to questions 12 and 13 on the application, Mr. Calegari answered “yes.” As pertinent to this matter, question asks whether the applicant has been convicted of a felony, and question 13 as to any misdemeanor convictions. 10. With his application, Mr. Calegari included a disclosure statement providing details about his criminal convictions and related criminal history. Mr. Calegari also provided testimony about these events. 11. In June 1991, Mr. Calegari, who was eighteen at the time, was arrested for underage possession of alcohol while he was visiting his father in Florida. He returned home to California without resolving the matter. Mr. Calegari contacted the courts about ten years later and pleaded guilty. He paid a fine and the matter was dismissed. 12. In October 1991, Mr. Calegari was charged with a number of crimes including possession of narcotics and various weapons charges. He pleaded guilty to carrying a loaded firearm in a prohibited area and all other charges were dropped. Mr. Calegari served time in jail and was placed on three years’ probation. The matter has been expunged. 13. In November 2004, Mr. Calegari was convicted of battery and of petty theft, both misdemeanors. Mr. Calegari entered a four month diversion program, after which the charges were dropped. 14. Regarding the battery, Mr. Calegari testified that he was at a party at a friend’s house that was across the street from at bar that was closing and people were going back and forth between to two places. A person came into his friend’s house and started yelling. Mr. Calegari felt that the person was a threat to the friend’s house and he pushed him out. That person made a citizen’s arrest and Mr. Calegari was subsequently charged with battery. 15. The theft charge occurred at the same time. People were taking “souvenirs” from the bar, thinking it was okay to do so. When the police arrived all three of those in the house were charged with theft and with battery, even though Mr. Calegari had nothing to do with the theft, and the other two had nothing to do with the battery. 16. Mr. Calegari acknowledged that he pleaded guilty to the theft charge and explained that he had done so on the advice of his attorney. 17. In March 2009, Mr. Calegari pleaded no contest to, and was convicted of, false imprisonment by violence, a felony. In April 2009, Mr. Calegari pleaded no contest to, and was convicted of, threat to commit a crime resulting in death or bodily injury, a felony. 18. These two felony convictions arose out of the same set of facts. Mr. Calegari paid a fine and served fifteen days in jail. The false imprisonment conviction was set aside in 2012, and the threat to commit a crime resulting in death or bodily injury was expunged in 2013. 19. Mr. Calegari testified that these charges occurred after his then-girlfriend told him a man they saw in Target had raped her and he confronted the man. No physical harm occurred, but later, after he learned the girlfriend had lied, they had an altercation in which he restrained her and then locked her out of the house. 20. In February 2011, Mr. Calegari was cited for hit and run driving and for a probation violation. He served three days for the probation violation. 21. Mr. Calegari testified that he was driving home late at night and was close to home when he drove into a neighbor’s fence. Because his car was stuck in a drainage ditch, he left it there and walked home. To the best of his recollection, the police arrived at his house the morning and issued the citation. He repaired the fence to make the neighbor whole. 22. The Department denied Mr. Calegari’s application because of this criminal history and the type of conduct that led to those convictions. 23. In making determinations as to whether to grant an application when the applicant has a criminal history, the Department considers factors including whether the crimes were misdemeanors or felonies and the passage of time since the convictions. The Department puts more weight on documents from courts than what people say about the crimes. 24. Ms. King did not participate in the Department’s decision to deny Mr. Calegari’s application and she could not say what factors were actually considered, but she agreed with the reasons for the denial. Ms. King acknowledged that people can and do change, but in Mr. Calegari’s case, the only indication of change that the Department had when it denied his application was the passage of time since his convictions. 25. Ms. King testified to the effect that the Department saw a pattern of misconduct on Mr. Calegari’s part, and there was a concern because he had committed more than one crime of violence. Battery and petty theft are related to the Department’s duty to protect the public. 26. If granted a license, Mr. Calegari will be with the public in unsupervised settings. Ms. King explained that the Department’s concern is that if he offended before, he may do so again. 27. Ms. King’s opinion was that Mr. Calegari’s hit and run conviction shows a lack of judgment and failure to take responsibility on his part. 28. Mr. Calegari testified to the effect that he had a poor relationship with his father growing up and that his father was not a role model. He also testified that his older brother bullied him. 29. In November 2018, Mr. Calegari moved from California to Oro Valley where he has family. Since January 2019, he had been employed with a company selling solar energy products. 30. From 2013 through 2018, Mr. Calegari was employed by Platypus Wine Tours in Napa Valley. In that role, using a company van, he would pick-up people at their hotels and take them to various wineries. A typical tour would consist of eight to fourteen attendees. 31. Mr. Calegari would set the itinerary, cook and serve lunch, engage the customers, and track any purchases they made to ensure that they received their products. Mr. Calegari’s job included forming relationships with the wineries. He was required to have a commercial driver’s license with a passenger indorsement, and he was subject to random drug testing. 32. Mr. Calegari had entered into evidence 312 five-star reviews from Trip Advisor for which he was the tour guide. Mr. Calegari is the record-holder for five-star reviews and explained how he took care to ensure that the customers would have a first-rate experience on what was a trip of a lifetime for many of them. 33. Mr. Calegari had entered into evidence three letters of reference, one from Platypus Tours, a second from one of the wineries, and the third from a former co-worker in the restaurant industry. These letters speak to Mr. Calegari’s professionalism, dependability and honesty. 34. Mr. Calegari had entered into evidence two letters of reference from Realtors. These letters speak to Mr. Calegari’s honesty, trustworthiness, and kindness and empathy. Ms. Naomi L. DuMuccio also wrote of her willingness to mentor Mr. Calegari. 35. Mr. Calegari described himself as a social drinker of alcohol. 36. Mr. Calegari is amenable to a provisional license under such terms and conditions as the Department believe are appropriate. 37. Even if a conviction has been expunged or set aside, the Department considers the facts that underlie the conviction in making its licensing determinations. CONCLUSIONS OF LAW 1. Mr. Calegari bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(1). 2. 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). 3. 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).

4. 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: ***

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. *** 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. 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. (Underscoring added.)

5. The fact that a criminal conviction has been set aside or expunged does not render that conviction a nullity and the Department may consider Mr. Calegari’s convictions in its licensing determination. See Parsons v. Ariz. Dep’t of Health Servs., 242 Ariz. 320, 395 P.3d 709 (App. 2017). 6. Mr. Calegari has been convicted of false imprisonment by violence threat to commit a crime resulting in death or bodily injury, both of which are felonies, in violation of section 32- 2153(B)(2), and crimes of violence in violation subsection (B)(10). 7. Mr. Calegari has also been convicted of three misdemeanors and entered a diversion program related to another charge. These matters and the felony convictions are sufficient to show that at the time he engaged in that behavior Mr. Calegari was not a person of honesty, truthfulness and good character, in violation of section 32-2152(B)(7). 8. Because Mr. Calegari has violated Ariz. Rev. Stat. section 32- 2153(B)(2), (B)(7), and (B)(10), the Department’s Commissioner has authority to deny Mr. Calegari’s application. 9. The Department’s denial of Mr. Calegari’s application was based on its concern that Mr. Calegari may reoffend and that he will be working without supervision. But it has been over eight years since Mr. Calegari’s last criminal act (the hit and run citation), and at the hearing, Mr. Calegari presented letters of reference and the Trip Advisor reviews that tend to show he has changed since the time of his convictions. Of particular note are the Trip Advisor reviews, because Mr. Calegari was routinely dealing with the public in an unsupervised setting while acting as a tour guide. Moreover, the Department has authority to grant a provisional license through which it can require that Mr. Calegari be subject to more supervision than a non-provisional license holder would be. 10. Considering the facts and circumstances of this matter, Mr. Calegari has provided sufficient evidence to show that he should be granted a provisional license, subject to such terms and conditions as the Commissioner deems appropriate. RECOMMENDED DECISION IT IS RECOMMENDED that Michael Sylvio Calegari be granted a provisional real estate salesperson’s license, subject to such terms and conditions as the Commissioner deems appropriate. 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, May 13, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate

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