ALJDEC decisions subject to certification as final

19F-385-REL · Department of Real Estate · 2019-07-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 24, 2019, at 1:00 p.m. APPEARANCES: Jaymz Robertson (“Petitioner”) appeared on his own behalf; the Arizona Department of Real Estate (“the Department”) was represented by Deian Ousoumov, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT The Application 1. On or about April 4, 2019, Petitioner filed a Salesperson’s Application Form with the Department. Petitioner marked “yes” to the questions that asked whether he had ever been convicted and/or entered into a plea agreement to any felony or misdemeanor in Arizona or any other state.[1] 2. Petitioner provided documents that indicated that on September 1, 1993, he was convicted of burglary, a class 2 felony, in Woodstock, Illinois based on an incident that occurred on August 18, 1993. Petitioner was sentenced to 90 days in county jail and 30 months’ probation, which he completed on May 30, 1997.[2] 3. Petitioner submitted an explanation for the 1993 burglary conviction with his application, which provided in relevant part as follows: When I was 16 years old I lived in Huntley, Illinois and I was hanging around a guy named Dan that a few of us knew through a kid from school, he was 30 and rented a room from the kid[’]s dad above a pizza place. A few of us would hang out over there after school and Dan would always join in so we got to know him. As a lot of the kids got to know Dan, [he] and a lot of us would ride our bikes around town, run through the creeks, head over to people’s houses. He would buy some kids beer and drink with us, smoke pot with others. I was young, so I was easily manipulated at the time, and in August of 1993, a few months after I graduated High School, a couple of us were sitting around and were hungry. Eventually the conversation turned towards breaking into the pizza place, and I was against it at first, but because I was the skinniest of us Dan and another guy talked me into climbing through the furnace in the basement to unlock the side door. We went in just to grab some food but one of them took a bag of dimes and that’s what set them off that someone was in the place overnight. They left out the door and I slipped back down through the furnace grate on the floor and we went up and pigged out. It was a small town so a lot of people knew other people or other families[’] names, and I was a known trouble maker in town, but never anything even close to illegal trouble like this though. A few days later they brought me in for questioning and claimed they had proof, so I told them what I did, then they just tied the other two guys to me because we all hung around. Plus, at the time the pizza place was on one side of the town square (that was rectangular) and the police station was . . . at the other end of the long side 90º from it. So we’d hang out in the gazebo at times in the square or ride around town and they’d see us together.

After this happened and I was out, I cut off all ties to Dan and got a job within a week at a factory where my mom worked. I tried to stay out of trouble and keep my nose clean after what happened and was just working and partying like most teenagers back then. Once I got my own place I kept my job going for over a year, working second shift and worked there on two other occasions through the 90’s on first and third shifts as well.[3]

4. Petitioner provided documents that indicated that on June 18, 1994, he was arrested for and later convicted of possession of 30-500 grams of cannabis, a class 3 felony, while he was on probation for the 1993 burglary. On January 26, 1995, pursuant to his guilty plea, Petitioner was convicted of two counts of possession of cannabis on two different dates, one in the amount of 30-500 grams, a class 3 felony, and the other in the amount of 10-30 grams, a class 4 felony. Petitioner was sentenced to serve concurrent terms of 120 days in jail, 24 months’ probation, and community service and required to pay fines. He completed his sentence on May 30, 1997.[4] 5. Petitioner submitted an explanation for the 1995 possession of cannabis convictions with his application, which provided in relevant part as follows: At this time I was still working at the factory in Crystal Lake, Illinois that I was at after my first offense but now I was living in my own apartment in Woodstock, Illinois. While I was working at the factory a guy named Rob started there and we started hanging out and partying after work. After about five or six months he asked me if I could get him some pot (marijuana/grass). In the time that he’d started at my work, two of my step-brother [’] s friends got an apartment in my complex and I had started getting a little grass from them. I only smoked personally and not that often and had never dealt to anyone, but I read the guy wrongfully trustworthy for the situation and went to my step brother [’] s friend [’] s place. On May 27, 1994 I got the guy 14 grams. I continued to work and party with him and eventually he asked for more but that’s the next action for the next page.

After selling Rob the 14 grams of marijuana I continued to party with him and eventually he asked me to get him more, 114 grams. The guys I got it from wanted to meet him for the amount he wanted, so they did. They gave it to me once they got it and I set up a meetup with Rob. He met me at the gas station by my apartment in Woodstock, Illinois later that night and I passed the bag to him through his window.

Turned out that Rob was an undercover narcotics agent, and they busted all 3 of us when they did because Rob had taken drug sting money and gambled it away on the riverboat casino that was in Elgin, Illinois on the river, and they didn’t want us to be reliable witnesses against him.

Months had passed since the last I’d seen Rob and one day I went in to see my probation officer for the probation I was on for the burglary, and she left the room and came back with two officers from the McHenry County Sheriff’s Department. They asked me a few questions and arrested me. I immediately felt shameful because I had to ask them to tell my dad I wasn’t coming out because he had driven me there. They arrested me, then took me to jail at the other end of the building. The charges and jail time for this as well as [the 1993 burglary conviction] ran concurrent and I spent 60 days in jail for this (half the 120 for good behavior).[5]

6. Petitioner provided documents that indicated that on July 15, 1998, he was convicted of criminal trespass to residence, a class A misdemeanor, in McHenry County Circuit Court based on an incident that had occurred on November 10, 1997. Petitioner was sentenced to pay a fine, costs, and fees and a conditional discharge, no special conditions.[6] 7. Petitioner submitted an explanation for the July 1998 criminal trespass to residence conviction with his application, which provided in relevant part as follows: This was a case of a vengeful ex, just not mine. I had rented a room from my step brother Shawn, and his girlfriend, Danielle, but it was mostly her place, and I lived with them for some time. There was a few times I was late on rent, but I was doing construction and rainy weather affected pay. We couldn’t work in the rain and would only get paid for the 2 hours we waited to see if it cleared up. While I lived with them they had their fights, sometimes quite loud, but never physical. I eventually met someone and ended up moving out to get away from the more frequent fighting, to the point where things were getting broken.

My step brother called me in November of 1997 to tell me that [he] and his girlfriend had broken up then asked me if I’d help him move his stuff. We were in the same town, a 10 minute drive apart, so I said I’d help, I just had to walk because I had no car. When I got there the front door was open and he was the only one there, I asked and he said she’d gone to work and told him to have his stuff out by the time she got home. So we started to move his stuff out into the pickup he’d gotten and had been taking things apart and taking trips out with stuff, but on one of my trips coming out of the house his now ex girlfriend pulled up, pissed. To find out, she had told him to wait until she got home to get his stuff so she could make sure he didn’t take anything of hers, because she didn’t trust him.

Apparently, after I moved out his anger got worse, the fights got louder, and more things were broken. They had broken up and she had kicked him out but told him when he could get his stuff, when she was there. He had broken open the lock before I got there but I didn’t pay any attention when I got there because the door was open. I tried to tell her I had nothing to do with it but she was so pissed at him that she had us both arrested and charged, and refused to drop the charges against me. The Woodstock police showed up and took us to the police department. I did not go to jail for this, they released me at the police station with a court date. At court I said I was in the house and since I couldn’t afford a trial I just pled guilty to the criminal trespass. I paid fines and served a year of conditional discharge (probation that goes off record if nothing happens in the time frame) but because of the next charge happening when it did, this charge stayed on my record.[7]

8. Petitioner provided documents that indicated that on June 11, 1998, he was convicted of criminal trespass to land, a class B misdemeanor, in McHenry County Circuit Court based on an incident that had occurred on June 6, 1998. Petitioner was sentenced to time served.[8] 9. Petitioner submitted an explanation for the June 1998 criminal trespass to land conviction with his application, which provided in relevant part as follows: During this [time] I was living in Cary, Illinois and stayed with a pair of brothers, Jeff and Tom. Jeff I’d known for years prior. The good thing about the area back then was that down the road we had a White Hen Pantry (a convenient store) and around from that a few bars that we frequented on weekends. During the day on June 6, 1998 I had gone into the White Hen to buy a few packs of cigarettes and chat with the woman that worked there, as I often did. Since I lived a block from the White Hen and I smoked cigarettes at the time, we were all there quite often and knew quite a few of the daytime people and had even said hi to the owner on a few occasions.

That night the brothers and I went to one of the bars nearby, Tom drove but left before closing time, so Jeff and I said we’d walk home. We stayed and drank more and at closing time the cops showed up to kick everyone out. Jeff and I were very intoxicated but managed to make it to the White Hen Pantry that was two blocks from home. We went in to get some snacks and something to drink and there was a new guy working that I hadn’t seen before. When we walked in the store both of us probably smelled like beer. As I went for some small chip bags, he went for a Mountain Dew, but as he opened the door of the fridges, the clerk told me that my friend had to leave. No reason, he just said it, so I asked him why and all he said is that he had to leave. So I asked him why again and then he told me I had to leave. Which confused me so it started over with me asking him why twice, then on the third time he said if I didn’t leave he’d call the cops. So I went outside and sat on the curb waiting for Jeff, who for some reason was now able to buy his drink, chips and cigarettes from the guy that told me I had to tell him to leave. I remember hearing the door’s bell ding behind me as Jeff walked outside as I watched four squad cars pull into the parking lot in front of me. I had felt I did nothing wrong, but they said it was because I didn’t leave after the first time he asked, then they arrested me. I spent six days (half the 12 for good behavior) in the county jail for this and paid a small fine.

The following Saturday, June 13, 1998, I went back in that store to get a pack of cigarettes and told the girl at the counter what happened and the owner walked out of the back and heard what I’d said. He told me the guy had only been there two weeks, was quiet, didn’t really talk to people when changing shifts, and that he had gotten other complaints about him. Within a week and a half the clerk was fired.[9]

10. Petitioner provided documents that indicated that on August 6, 2004, he was convicted of driving under the influence of alcohol (“DUI”), a class A misdemeanor, in McHenry County Circuit Court based on an incident that had occurred on October 19, 2002. Petitioner was sentenced to pay a fine, to attend DUI school, and to one year’s probation.[10] 11. Petitioner submitted an explanation for the August 2004 DUI conviction with his application, which provided in relevant part as follows: At this point in my life I had two boys that were 2 and 6. The older one lived with me but I did not have custody of him, yet. I also had just gone through a final break up from my kids [’] mom and had moved in with her sister and her boyfriend and her kids in Carpentersville, Illinois. I knew them through the years and they helped me while I tried to get back on my feet after the break up. I had been working a temp job and it had just ended on the Friday I went out drinking. I had lost contact with the brothers I spoke of earlier, but I had ran into Jeff and called him up on October 18, 2002 and met him at a bar we used to go to.

When I got there he was playing pool so I ordered a pitcher, but to find out he was already past buzzed. So he never touched it. After I finished it, I ordered another but ended up drinking that one myself too because he ordered something else in a bottle. We played pool, shot darts, and hung out with some people we knew from the bars. It’s a bar near where the bar I left from the night of the White Hen incident happened, in Cary, Illinois. Eventually, closing time came at 2 am and I barely felt buzzed and neither of us were ready to call it a night. We knew of a bar in Dundee, Illinois that was about a mile from where I lived back in Carpentersville, Illinois that was open until 4 am. On the way to the bar we passed right by the house I lived in, but continued on. We got there and I ordered a beer and I slowly sipped on it because before I got halfway done I started to feel the other beer start to kick in and felt dizzy and felt my stomach bubbling.

I put the beer down and stopped drinking at that point to try to sober up before leaving. When it was closing time and we went to leave, I still had to drive Jeff home to Crystal Lake, but I didn’t feel like I was that drunk anymore. I took mostly back roads on the way there when I could but came to one backroad I’d only been on once many years prior to that night, Lily Pond Road in between Woodstock and Crystal Lake, Illinois. It used to be a sharp left, then sharp right as in 90º sharp, with railroad tracks cutting across. I came down this road going too fast and forgot about the sharp turns, so I came into the turn way too fast and slid off the road to the lower field below. As I got out of the car I looked up and saw 2 or 3 squad cars with their lights on pull up to the edge of the road. They looked around, questioned me and I told them I took the curve too fast. They let me walk around the scene and move about freely, but even though Jeff was drunker than me and was passed out on the whole drive, he told the cops I had been drinking and eventually they put me under arrest and took me to jail. I didn’t think I was as drunk as I was, but after I blew I found out I was.

After this incident happened I lost my interest in drinking, especially if I’m the one driving. I’ll still have some from time to time if I’m with friends or camping out on the lake or rivers, but I rarely ever drink anymore. I bought a 6 pack of beer for a camping trip on June 1, 2018 weekend and drank two of them over the two nights I was there. Two months later I went to a pool party and took two with me. I still, as of today, have the last two beers in the fridge.[11]

12. On April 25, 2019, the Department denied Petitioner’s application to be licensed as a real estate salesperson because it found he did not meet the qualifications for licensure pursuant to A.R.S. §§ 32-2123, 32-2124, and 32- 2153, based on his criminal convictions. The Department stated that it considered Petitioner’s conduct to have violated A.R.S. § 32-2153(B)(2) and (B)(7).[12] 13. Petitioner submitted a timely request for hearing on the denial. Petitioner stated in relevant part as follows: My reason to appeal the decision to deny my license is because of many reasons. The main ones are that the two felonies on my record are from when I was 17 and 18 years old, and this September I will be 44 years old. So those are over 25 years old. The criminal trespass to residence and the criminal trespass to property are two things I should have never have been charged with. The one was because I was helping my step- brother move and his ex wasn’t allowing him there and I didn’t know, and the other one was because of a store clerk that was rude to customers and was fired not long after what he did that got me the criminal trespass to property. As far as the DUI, that happened in 2002, 17 years ago, and I do not drink anymore and have not gotten in trouble since. On occasion I may have some with friends but I never drink to get drunk because I have too much to lose now. I spent most of my adult life raising my children on my own as a single father with no help from their mother, and I always told my boys that if you put your mind to something you can accomplish anything, and I’ve been trying to prove that to them in many ways, getting my license is one of them.

But my main reasons also for going for my real estate license are that I want to be able to have a career and afford a house. My mother has had multiple strokes and I currently take care of her and I would like to get a bigger house that will allow her to have room to move around in her walker or wheelchair, and I would like to bring my younger son out to Arizona and in order to do that I need to have a good paying job and a larger house. I have worked my butt off for over a year-and-a-half to try to get my license. I studied, I crammed for it, and I eventually passed the school test and then I passed the State/National test, and then I was faced with walls in my way. Now I’m on my final step and I was denied, so I want to appeal the decision to let me board or judge or whoever I talk to know that I’m not that kid that got in trouble. I’m an adult that owned up to his mistakes and changed his life for the better so that I could set a better example for my kids.[13]

14. The Department referred Petitioner’s request to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. On May 10, 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. 15. A hearing was held on June 24, 2019. The Department submitted fifteen exhibits and presented the testimony of Robin King, the Department’s Manager for Auditing and Investigations. Petitioner submitted nineteen exhibits, testified on his own behalf, and presented the testimony of his mother, Diana Robertson. Additional Hearing Evidence 16. Petitioner testified that he does not drink anymore. When he meets women on dates, they go for coffee or smoothies. Petitioner has a medical marijuana card to relieve the pain from three bulging disks in his back. 17. Petitioner testified that since he moved to Arizona, he has joined hiking groups and regularly volunteers to clean up the wilderness and public hiking trails. He has also worked for Habitat for Humanity building houses and for Cary-Grove Food Pantry, providing housing and food to people in need. 18. Petitioner has done about 30 mud runs, including the Spartan and Tough Mudder races, in Illinois, Wisconsin, Arizona, and California. These events require teamwork and trusting others on his team. He has a permit to camp in the Grand Canyon for five days and plans to camp at Lake Havasu, Lake Zion, and other landmarks in or near Arizona. 19. Petitioner has obtained a good cause exception to obtain a fingerprint clearance card.[14] 20. Since Petitioner moved to Arizona, he has been working in a warehouse and has become the manager. Petitioner testified that his employer trusts him with the keys to the warehouse at Parker Hannifin and Hardware Resources. 21. Petitioner submitted eight letters of reference from his co- workers and supervisors at work, his friends and associates from hiking and outdoor activities, and neighbors and friends. The letters generally attested to Petitioner’s honesty, work ethic, team player ethos, leadership, organizational skills, abilities to multitask and listen, friendliness, enthusiasm, respectfulness, and perseverance.[15] Petitioner’s mother testified that Petitioner had turned his life around and that she is proud of how much he has grown through troubled times. 22. Petitioner submitted maps of the Lily Pond Road outside Crystal Lake and Ridgefield, Illinois, to show its sharp turns.[16] 23. Petitioner pointed out that many people have overcome youthful criminal convictions to become successful and admirable public figures, including Nelson Mandela, Mark Wahlberg, Tim Allen, and Robert Downey, Jr.[17] 24. Ms. King testified that the Department’s main function is to protect the public through its licensing of real estate professionals. 25. Ms. King noted that the felony cannabis convictions occurred less than a year after the felony burglary conviction. The Department is concerned about repetitive criminal convictions. 26. Ms. King testified that Petitioner’s criminal convictions for burglary, criminal trespass to land, and criminal trespass to residence were concerning because real estate agents have access to other people’s houses and belongings. A person who has gone onto other’s property where he does not belong may not respect others’ property rights. The two criminal trespass convictions occurred within a short time of each other and may indicate that Petitioner did not learn from his mistakes. 27. Ms. King testified that the Department determined to deny Petitioner’s application based on his felony convictions. CONCLUSIONS OF LAW The Department has jurisdiction to consider Petitioner’s appeal of its denial of his application for a real estate salesperson’s license based on his six criminal convictions between 1993 and 2004. Petitioner bears the burden of proof to establish that he meets statutory qualifications for a real estate salesperson’s license by a preponderance of the evidence.[18] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[19] 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.”[20] The legislature established the Department to protect “the public health, safety and welfare by regulating the sale of real estate . . . .”[21] A real estate salesperson’s license is a privilege, not a right. The Department has discretion[22] to grant or deny a license to an applicant under A.R.S. § 32-2153(B).[23] Petitioner acknowledged that between 1993 and 2004, he was convicted of three felonies, including burglary, and three misdemeanors, including criminal trespass to property and criminal trespass to residence.[24] Grounds therefore exist under A.R.S. § 32-2153(B)(2) and, potentially, (B)(7) for the Department to deny Petitioner’s application for a real estate salesperson’s license. A person who has successfully completed his sentences and had his civil rights restored, like Petitioner, may not be disqualified from employment by the state or any of its agencies.[25] 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.”[26] A license applicant therefore may be required to disclose the fact of conviction, even if the conviction has been vacated.[27] 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.’”[28] Even though cause may exist to deny a license application, an applicant may establish that he is rehabilitated, has reestablished good character, and no longer poses a threat to the public. The issue of what constitutes good character or a lack thereof is nebulous at best. Former United States Supreme Court Justice Frankfurter noted: No doubt satisfaction of the requirement of moral character involves an exercise of delicate judgment on the part of those who reach a conclusion, having heard and seen the applicant . . . , a judgment of which it may be said as it was of “many honest and sensible judgments” in a different context that it expresses “an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions; impressions which may lie beneath consciousness without losing their worth.” . . . [29]

Once good character is shown to have been absent, however, it is not automatically regained by the mere passage of time and positive and affirmative activities are required for a person to regain what was lost. The time period required for a license applicant to establish rehabilitation is commensurate with the period of misconduct and the severity of the offenses. Although the 1993 and 1994 offenses occurred when Petitioner was seventeen and eighteen years old, in 2002, eight years later, when he was about 26 years old, he chose to drive on a winding country road while he was intoxicated, resulting in an accident that, fortunately, did not seriously injure anyone. Since 2004, Petitioner apparently has been peaceably and lawfully living his life, raising his two sons and contributing to the economy and community. Petitioner has grown up. Eight persons wrote glowing letters of reference on Petitioner’s behalf, but none of them testified at the hearing subject to cross-examination by the Department. Therefore, the letters of reference are hearsay.[30] Although hearsay may be admitted in an administrative hearing,[31] it should not be relied upon if it is not the kind of evidence that reasonable persons would rely upon in serious matters.[32] A person demonstrates rehabilitation by, among other things, expressing sincere remorse for past crimes and taking personal responsibility for his actions. If a license applicant does not express remorse or take personal responsibility for past crimes, the licensing agency may not be able to conclusively determine that the applicant is sufficiently rehabilitated so as not to pose a threat to the public if the agency issues a license to him. While Petitioner acknowledged his past crimes, he continues to blame others and to minimize his own culpability and responsibility for his past actions. According to Petitioner, in 1993, he was convicted of burglary because he was a foolish boy who fell under the influence of an older man and participated in agreed to burglarize the pizza parlor his better judgment because he was hungry, but someone stole a roll of dimes, which lead to his arrest and conviction. In 1994, he was convicted of two counts of selling marijuana after an undercover narcotics agent took several months and made extraordinary efforts to cultivate his friendship at work, but he did was not a dealer but had contacts. Petitioner was only convicted due to the agent’s own unrelated misconduct. In July 1998, Petitioner was convicted of criminal trespass to a residence because his step brother did not tell him that the step-brother did not have his ex- girlfriend’s permission to be in her residence, although Petitioner acknowledges that the place was “mainly” the ex-girlfriend’s and the couple’s relationship was increasingly estranged and combative. Petitioner apparently never directly asked either the step brother or, better yet, the ex-girlfriend if the ex-girlfriend had permitted him to enter her residence, yet claims that the conviction was the result of a vengeful ex and not at all his fault. In June 1998, Petitioner was convicted of criminal trespass to land after he refused to leave a store at the storekeeper’s employee’s request because, he says, the employee was rude to customers and later fired for asking Petitioner to leave and calling the police when Petitioner refused. In 2004, Petitioner was convicted of DUI because the road was exceptionally winding and his passenger told police Petitioner was drunk, even though the passenger was drunker. Petitioner’s various explanations do not demonstrate rehabilitation. Therefore, at this time, Petitioner has not demonstrated that he is qualified to be licensed as a real estate salesperson at this time. RECOMMENDED ORDER Based on the foregoing, IT IS ORDERED affirming the Department’s denial of Petitioner Jaymz Robertson’s application for a real estate salesperson’s license and dismissing his appeal. / / / / Done this day, July 15, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] See the Department’s Exhibit 1 at 2. [2] See the Department’s Exhibit 3. [3] The Department’s Exhibit 2. [4] See the Department’s Exhibit 5. [5] The Department’s Exhibit 4, 6 [6] See the Department’s Exhibit 11. [7] The Department’s Exhibit 10. [8] See the Department’s Exhibit 9. [9] The Department’s Exhibit 8. [10] See the Department’s Exhibit 13. [11] The Department’s Exhibit 12. [12] See the Department’s Exhibit 14. [13] The Department’s Exhibit 15. [14] See Petitioner’s Exhibit N. [15] See Petitioner’s Exhibit F through M. [16] See Petitioner’s Exhibit Q. [17] See Petitioner’s Exhibit S. [18] 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). [19] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [20] Black’s Law Dictionary at page 1064 (6th ed. 1990). [21] See Laws 1992, Ch. 14, § 3. [22] See A.R.S. § 32-2153(B) (“The commissioner may . . . deny the issuance of a license” under certain circumstances (emphasis added)). [23] 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). [24] [25] See A.R.S. § 13-904(E). [26] Id. [27] See Russell v. Royal Maccabees Life Ins. Co., 193 Ariz. 464, 470, 974 P.2d 443, 449 (App. 1998). [28] Id. at 469, 974 P.2d at 448 (quoting Adams v. County of Sacramento, 1 Cal. Rptr. 2d 138, 143-44 (App. 1991)). [29] Schware v. Board of Bar Examiners of the State of New Mexico, 353 U.S. 232, 248, 77 S. Ct. 752, 761 (1957) (citation omitted; concurring opinion). [30] See Ariz. R. Evid. 801(c) (“‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). [31] See A.R.S. § 41-1092.07(F)(1). [32] See Plowman v. Arizona State Liquor Board, 152 Ariz. 331, 337, 732 P.2d 222, 228 (App. 1986) (citing Begay v. Arizona Department of Economic Security, 128 Ariz. 407, 626 P.2d 137 (App. 1981)).

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