ALJDEC decisions subject to certification as final

19F-340-REL · Department of Real Estate · 2019-06-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 6, 2019, at 1:00 p.m. APPEARANCES: Crystil Gault (“Petitioner”) appeared on her own behalf; the Arizona Department of Real Estate was represented by Deian Ousounov, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT The Application 1. On or about March 1, 2019, Petitioner filed a Salesperson’s Application Form with the Department. Petitioner marked “yes” to the questions about whether she had “[b]een convicted and/or entered into a plea agreement and/or a plea of NOLO CONTENDERE (no contest) to ANY [felony or 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 court documents that indicated that on or about June 14, 2002, she pled guilty criminal trespass in the first degree, a class six felony, in Pima County Superior Court Case No. CR-20020042 and first degree hindering prosecution, a class five felony, in Pima County Superior Court Case No. CR-20020046 and was sentenced to one year in jail and six years’ intensive probation, including the requirement that she complete a residential treatment program and subsequent monitoring for substance abuse.[2] 3. Petitioner submitted an explanation for the offenses with her application, which provided in relevant part as follows: On the morning of December 24th, 2001, I [received] a ride from . . . someone that I knew. I was trying to get closer to my family’s side of town for Christmas Eve. While driving, this person made an illegal turn and was pursued by the police. He continued to drive in an attempt to escape and more police began to pursue the vehicle. During the chase, the driver ran a stop sign and hit the side of a truck. He then got out of the car, opened the passenger door for me to get out, and began to run on foot. I stayed in the car because I did not want to run because I was hurt and afraid of everything that was happening. After the police attempted to locate the man and failed, I was arrested. There were illegal things in the car that did not belong to me and I would not give police the name of the person I was with. Although I did not know at the time, a young girl died as a result of the accident. I was charged with hindering prosecution and promoting prison contraband due to them finding a piece of methamphetamine in the pocket of the pants I was wearing.

A few days later, I was called [for] booking at Pima County Jail on a burglary charge. This [burglary] took place around December 3rd, 2001. The police had found one of my fingerprints in the house. I was in the house because I had gotten a call from a person I knew saying that they were having a party and wanted me to go. They picked me up and we went to a really nice house. I was concerned because this did not look like a house that belonged to anybody I knew and when I went inside it was torn apart. I only stayed at the house long enough to do drugs and left. When I left I dropped my cell phone and did not realize, which is where the police [acquired] my fingerprint. When the police questioned me, I would not give them the names of the people that [committed] the crime and was charged instead. . . .

I was sentenced to one year in jail, completion of Casa De Vita drug rehab, and six years of intensive probation. I violated my probation halfway through my sentence and was on the run from the law for a year. In December of 2004, I was caught and arrested. I was ordered to complete the remaining three years of probation.

As you will see this was my first REAL wake up call that I had as an adult. I have made many really bad choices in my life, and my [children’s]. All I want is to be a productive member of society, and for my children to have a good life.[3]

4. On October 25, 2013, Petitioner was arrested and charged in Tucson City Court for possession/use of marijuana and drug paraphernalia. Appellant was released and, on November 7, 2013, Petitioner was charged with violation of promise to appear, which resulted in a warrant being issued for her arrest but the charge was later dismissed.[4] 5. Petitioner filed with her application an explanation for the 2013 charges, in relevant part as follows: On October 25th, 2013 the Tucson Police Department and Child Protective Services came to my house because they had received an anonymous call regarding my children. While in my house, they saw a jar a marijuana on the dresser in my room. I was paper arrested for possession and [paraphernalia]. I did not have a job, or a vehicle at the time of my court date so I did not go. I was given a failure to appear for this. I was aware for quite a while that I had a warrant, and when I was turned down for a job at a Frys Food store I decided it was time to take care of it. I talked to a friend about how to go about getting it taken care of. They told me about a program called Homeless Court, where you can pay off your fines by doing community service. I went down to warrant court at Tucson City Court and applied for the program. They gave me a hearing date which I went to and the judge gave me 90 hours of community service. I completed my hours at World Care and returned my hour sheet to the judge and he [quashed] my warrant, and my case was completed.[5]

6. On January 8, 2018, the Pima County Superior Court granted Petitioner’s motions to set aside convictions of guilt, vacate convictions, and restoration of rights in Case Nos. CR20020042[6] and CR20020046.[7] 7. On March 18, 2019, the Department sent a letter to Petitioner to notify her of its intent to deny her 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 first degree hindering prosecution, a class 5 felony, criminal trespass in the first degree, a class 5 felony, and marijuana-possession/ use. The Department stated that it considered Petitioner’s conduct to have violated A.R.S. § 32-2153(B)(2) and (B)(7).[8] 8. Petitioner requested a hearing on the denial, stating in relevant part as follows: My 2 felony charges are from 2002. Since then they have both been set aside by the Superior Court. The marijuana charge was a paper arrest, it was not on my person, it belonged to someone else in my home. It is now over 5 years old. None of these charges would in any [affect] my Real Estate career if I was granted my license.[9]

9. The Department referred Petitioner’s appeal to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. On May 1, 2019, the Department issued a Notice of Hearing that charged A.R.S. § 32-2153(B)(2) and (B)(7) as grounds to deny Petitioner’s license application. 10. A hearing was held on June 6, 2019. The Department submitted nine exhibits and presented the testimony of Bret Biesenthal, a Senior Investigator with the Department. Petitioner submitted one exhibit and testified on her own behalf. / / / / Additional Hearing Evidence 11. Mr. Biesenthal testified that Petitioner was forthcoming on her application and that she did not attempt to hide her criminal history. Mr. Biesenthal noted that, in the past, Petitioner had failed to cooperate with police more than once. Mr. Biesenthal testified that Petitioner’s non- cooperation with police in their investigations by providing the identities of perpetrators who were known to her concerned the Department because it demonstrated a disregard for the legal process and legal authority. Mr. Biesenthal explained that the Department feared that Petitioner would not be amenable to regulation if she were licensed. 12. Mr. Biesenthal testified that the Department’s primary purpose was to protect consumers in its decisions to license real estate salespersons, especially because salespersons have access to consumers’ homes and financial information. Mr. Biesenthal testified that, even after a conviction is set aside, the Department may consider the conduct upon which the conviction was based. Petitioner’s conviction of criminal trespass based upon her association with a burglary of a residential structure was a very serious offense for someone who wanted to work in the real estate profession. 13. Mr. Biesenthal testified that, even though the criminal trespass and hindering prosecution convictions occurred in 2002, in October 2013, Petitioner was arrested for possession/use of marijuana and paraphernalia and, in November 2013, a warrant was issued for her arrest after she failed to appear in court. Mr. Biesenthal testified that Petitioner continued to demonstrate a lack of respect for the law and for legal authorities. 14. Petitioner submitted four letters of reference from her boyfriend’s family, all of whom knew about her criminal history and have known her for between six and eighteen years, including Mike Kapella, her boyfriend’s sister’s husband, who renovates houses for a living, Terri I. Young, her boyfriend’s sister, who works with Mr. Kapella, John Sikora, her boyfriend’s mother’s husband, who is retired from a career as a civil servant for the military, and Karen L. Young, her boyfriend’s mother. All the letters praised her work ethic and called her a good mother and dedicated friend.[10] 15. Petitioner testified that in 2002, she was twenty years old and running with the wrong crowd. At that time, she had one child, her oldest daughter. She was a passenger in a car driven by an associate who was trying to avoid responsibility for his crimes by evading the police, but was not directly involved in his crimes. Petitioner acknowledged that she had not been forthcoming with the police, but testified that she was trying to protect herself because she was afraid of the people with whom she was associating at the time. 16. Petitioner testified that, when she failed to appear in court in November 2013, and a warrant issued for her arrest, she did not have a car. She did not ask her boyfriend or his family for a ride to the courthouse because she and her boyfriend were not getting along and were not together at that time. 17. Petitioner testified that she has five children, three of them at home, including one with her boyfriend. Petitioner testified that her boyfriend is named Jason Young and is a long-haul trucker. She and Mr. Young are raising the children together. Petitioner testified she would like to set a good example for her children. She is currently working at Burger King. Although her employer has asked her to be the manager, she declined the promotion. She attends Pantano Christian Church in Tucson. She spends most of her free time with her children. 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 2002 convictions for felony criminal trespass and hindering prosecution and the 2013 convictions for use/possession of marijuana and paraphernalia.

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.[11] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[12] 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.”[13] The legislature established the Department to protect “the public health, safety and welfare by regulating the sale of real estate . . . .”[14] A real estate salesperson’s license is a privilege, not a right. The Department has discretion[15] to grant or deny a license to an applicant under A.R.S. § 32-2153(B).[16] Petitioner acknowledged that in 2002, she was convicted of felony criminal trespass and hindering the prosecution. Petitioner acknowledged that in October 2013, she was convicted of misdemeanor possession/use of marijuana and paraphernalia and that a warrant was issued for her arrest after she failed to appear in court. Grounds therefore exist under A.R.S. § 32- 2153(B)(2) and (B)(7) for the Department to deny Petitioner’s application for a real estate salesperson’s license.[17] 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.[18] 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.”[19] A license applicant therefore may be required to disclose the fact of conviction, even if the conviction has been vacated or set aside.[20] 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.’”[21] The issue is whether, in light of Petitioner’s 2002 felony convictions for criminal trespass and hindering prosecution and 2013 conviction for possession/use of marijuana and paraphernalia, Petitioner at this time can be trusted to be responsible in her dealings with members of the public and to respect the Department’s authority if it 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 or aggravating circumstances, the degree to which the applicant participated in the offense, whether the applicant has completed her sentence, and whether she has performed subsequent positive actions that demonstrate rehabilitation.[22] 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 2002 convictions for criminal trespass and hindering prosecution occurred seventeen years ago, when Petitioner was only 20. However, at the hearing, Petitioner did not express remorse or take personal responsibility for her actions that led to the convictions. Twelve years later, moreover, Petitioner was convicted of possession/use of marijuana and paraphernalia and, less than a month later, failed to appear at her court date, resulting in a warrant being issued for her arrest. Petitioner minimized the arrest as a “paper arrest” based on another person’s acts. Petitioner still is not taking personal responsibility for her illegal acts. Based on this record, Petitioner has not established that she is qualified to be a real estate salesperson under applicable statute or that the Department abused its discretion in denying her application. RECOMMENDED ORDER Based on the foregoing, it is ordered affirming the Department’s intended denial of Petitioner Crystil Gault’s application to be licensed as a real estate salesperson and dismissing her 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 will be five days from the date of that certification. Done this day, June 19, 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 Exhibit 3 at 3. [3] The Department’s Exhibit 2. [4] See the Department’s Exhibit 7. [5] The Department’s Exhibit 6. [6] See the Department’s Exhibit 4. [7] See the Department’s Exhibit 5. [8] See the Department’s Exhibit 8. [9] The Department’s Exhibit 9. [10] See Petitioner’s Exhibit A. [11] 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). [12] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [13] Black’s Law Dictionary at page 1064 (6th ed. 1990). [14] See Laws 1992, Ch. 14, § 3. [15] See A.R.S. § 32-2153(B) (“The commissioner may . . . deny the issuance of a license” under certain circumstances (emphasis added)). [16] 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). [17] 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. . . . . 7. Not shown that the holder or applicant is a person of honesty, truthfulness and good character. [18] See A.R.S. § 13-904(E). [19] Id. [20] See Russell v. Royal Maccabees Life Ins. Co., 193 Ariz. 464, 470, 974 P.2d 443, 449 (App. 1998). [21] Id. at 469, 974 P.2d at 448 (quoting Adams v. County of Sacramento, 1 Cal. Rptr. 2d 138, 143-44 (App. 1991)). [22] 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