ALJDEC decisions subject to certification as final

19F-447-REL · Department of Real Estate · 2019-10-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 24, 2019.

APPEARANCES: Adam Miles (Petitioner) appeared on his own behalf. The Arizona Department of Real Estate (Department) was represented by Assistant Attorney General Deian Ousonov.

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn _____________________________________________________________________

FINDINGS OF FACT On or about May 15, 2019, Petitioner submitted to the Department a Salesperson Application Form (Application) to be licensed as a real estate salesperson.[1] On that Application, Petitioner answered “NO” to Question #12, regarding convictions or plea agreements to any felony in Arizona or any other state.

On that Application, Petitioner answered “YES” to Question #13, regarding convictions or plea agreements to any misdemeanor in Arizona or any other state. With the Application, Petitioner submitted information identifying the above conceded information and a letter of explanation.[2] Petitioner noted that he had, when 18 years old had been drinking at a party and made poor choices. He indicated that, when 21 years old, he had fought off his ex-girlfriend (she was armed with a knife) and later, under a plea agreement on April 17, 2013, pled guilty to a Class 4 felony aggravated assault charge and was sentenced to three years of probation.[3] However, several months thereafter, Petitioner violated his probation and, on July 1, 2013, he was placed on an intensive probation program, with 30 days in jail and an extension of probation completion date.[4] Unfortunately, Petitioner violated his probation again and, on March 20, 2014, his probation was revoked, and Petitioner was committed to prison for 2.5 years.[5] While in prison, Petitioner was involved in an incident with a prison officer as a result of a panic attack in December of 2014. Within the system, the officer later explained the circumstances and recommended no further charges from the incident. On July 24, 2018, the Arizona Department of Corrections granted Petitioner an absolute discharge from prison and parole supervision.[6] By letter dated June 25, 2019, the Department sent Petitioner, via certified mail, a letter of Intent to Deny Application for Original Real Estate Salesperson’s License.[7] The Department informed Petitioner that, based on the Application, it had concluded that he did not meet the qualifications for licensure pursuant to A.R.S. §§ 32-2123, 32-2124, and 32- 2153; the Department’s conclusion was based in part, but not exclusively, on the criminal history detailed above herein. The Department further informed Petitioner that it considered that his conduct had violated A.R.S. §§ 32-2153(B)(2), (B)(7), and (B)(10).[8] In July 2019, Petitioner was arrested and fingerprinted by Tucson Police Department in regard to a charge of Felony drug paraphernalia- possession/use.[9] As a result, DPS suspended Petitioner’s Level One Fingerprint Clearance Card.[10] On July 24, 2019, Petitioner was advised that, at that time, the felony charges had been dismissed but could be refiled.[11] The Department received Petitioner’s appeal on July 29, 2019.[12] Petitioner acknowledged his history in making mistakes, poor choices and irresponsible actions. Petitioner indicated that he had, with prison sentence, made repayments to society and sought his “second chance” to succeed with constructive, positive, hard work. Petitioner noted that he had the support of, and mentorship from Pat Leach, a licensed sales person with Realty Executives Tucson Elite, and her son, David Leach, also a licensed sales person.[13] Since his release from prison, Petitioner has developed a company that constructs shading projects, such as Arizona rooms and enclosures, for residential and commercial settings.[14] Petitioner indicated that the company manufactures and fabricates the products used therein.[15] Petitioner indicated that he had three employees and that his cousin is his partner. Petitioner believed that his sobriety date was sometime in 2013. Petitioner indicated that he took classes for narcotics abuse, substance abuse, and anger management while on intensive probation. Petitioner indicated that he had signed up for counseling, through an insurance company, when he got out of prison to help him with being out of prison and transitioning back into the general public.[16] Petitioner argued that his anger and substance abuse, that had plagued him in the past, were behind him now, because he is focused on the future and is a different person. Petitioner is not currently involved in any self- improvement classes. The Department’s position is that Petitioner had a serious felony charge and guilty plea in the past which would demonstrate that Petitioner is in violation of A.R.S. §§ 32-2153(B)(2) and (B)(7). The Department is additionally concerned with Petitioner’s two violations of probation in the past, and the most recent arrest, which would appear to indicate that Petitioner cannot be relied on to follow laws and rules. The Department noted its overall concerns of protecting the public. CONCLUSIONS OF LAW The Department bears the responsibility to protect the public through its enforcement of licensing statutes.[17] This matter lies within its jurisdiction. Petitioner bears the burden of proof and must 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 “[t]he 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.”[20] A.R.S. § 32-2153 provides in relevant part 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 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.

…..

9. Violated the terms of any criminal or administrative order, decree or sentence. …..

10. Violated any federal or state law, regulation or rule that relates to … violence against another person … . 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.

The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. The Department’s concern in this case is understandable. A person with a criminal record must be given close scrutiny and careful consideration when he or she applies for a professional license. The hearing record demonstrated that, within the past 10 years, Petitioner had a serious felony conviction along with conduct raising more recent concerns regarding his behavior and ability to follow applicable laws. While none of Petitioner’s criminal actions relate to dishonesty or fraud in the business of real estate, the convictions remain of concern as to the good character of Petitioner. Once good character is shown to be absent, it is not automatically regained by the mere passage of time or simply indicating that the past is the past; past convictions are still considered as to actions since that time and for any repetitive violations. The conviction of multiple crimes is not a permanent bar to being licensed. An applicant has the burden of proving by a preponderance of the evidence that he or she has resolved the issues that led to the actions and convictions and to establish that he or she has sufficient good character and reputation to satisfy the statutory requirement for licensure as a real estate salesperson. While the Petitioner was forthcoming as to each of the past incidents and the outcomes, in this case, the Administrative Law Judge concludes that Petitioner has not met his burden. Based on the hearing record, the Administrative Law Judge concludes that the Department would not fulfill its statutory mandate by licensing Petitioner as a real estate salesperson at this time due to the relatively recent 2013 conviction and due to the continued pattern thereafter of noncompliance with rules and laws. Additionally, the Administrative Law Judge concludes that the hearing record lacked support of all the criteria for possibility of a provisional licensure. RECOMMENDED ORDER The Commissioner shall affirm the Department’s decision to deny Petitioner’s Application for a real estate salesperson’s license and dismiss Petitioner’s 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 shall be five days from the date of the certification. Done this day, October 15, 2019. /s/ Kay Abramsohn Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner Arizona Department of Real Estate ----------------------- [1] Exhibit 1. [2] Petitioner’s explanations are found at Exhibits 2 and 3. [3] See Exhibit 4. [4] See Exhibit 5. As to this probation violation, Petitioner had been drinking the night before a [probation] community service project and took a breathalyzer, determining his condition, when he checked into the project. [5] See Exhibit 6. The second probation violation involved Petitioner taking pain pills while he was in his aftercare treatment from shoulder surgery. There was a prescription for the pain pills; however, at some point, the expected pill count was off, Petitioner having taken more pills than would have been expected. [6] See Exhibit 7. [7] See Exhibit 8. [8] At hearing, the Department also argued that Petitioner’s conduct demonstrated violations of A.R.S. § 32-2153(B)(9). [9] See Exhibit 10. [10] Id. [11] See Petitioner’s Exhibit A. [12] See Exhibit 9. [13] There is no indication that any licensed real estate person or broker had offered to employ Petitioner or be a “provisional” sponsor. [14] Petitioner indicated that building screens was something he had learned years before through working with his father on such a project. [15] Petitioner indicated that he plans on obtaining a Registrar of Contractor’s license and that he does not need one now for the type of work his company performs. [16] Petitioner’s sessions were for 6 months after he was paroled. [17] See Sigmen v. Arizona Dept. of Real Estate, 169 Ariz. 383, 388, 819 P.2d 969, 974 (Ct. App. 1991). [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 1220 (8th ed. 1999).

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