ALJDEC decisions subject to certification as final

20F-204-REL · Department of Real Estate · 2020-03-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Original Real Estate Salesperson License of:

NABHAN, HANNAH, holder of License No. SA683453000 (Candidate),

Petitioner.

No. 20F-204-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 6, 2020

APPEARANCES: Hannah Nabhan (Petitioner) appeared on her own behalf. The Arizona Department of Real Estate (Department) was represented by Assistant Attorney General Deanie Reh.

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

On or about December 16, 2019, Petitioner submitted to the Department a Salesperson Application Form (Application) to be licensed in Arizona as a real estate salesperson. On that Application, Petitioner indicated that she holds/held a real estate license in California.

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 separate statements of explanation regarding three circumstances.

In May 2005, Petitioner entered in to a diversion plea agreement, pleading guilty to Use/Under Influence of Controlled Substance, a misdemeanor, in the Superior Court of California, County of San Bernardino, in Case No. MWV092901. On May 6, 2005, Petitioner was sentenced to 36 months of supervised probation.

On May 27, 2005, pursuant to California Penal Code (CA PC) Section 1203.4, the Court set aside the conviction, entered a plea of not guilty and dismissed the case.

On December 9, 2009, the Court dismissed all diverted charges in Case No. MWV092901, Petitioner having successfully completed the terms of the diversion court orders.

In May 2005, Petitioner pleaded guilty to Use/Under Influence of Controlled Substance, a misdemeanor, and Driving While License Suspended/Revoked, a misdemeanor, in the Superior Court of California, County of San Bernardino, in Case No. MWV095306. On May 27, 2005, she amended her plea to not guilty, and Petitioner was sentenced to 36 months of supervised probation, including participation in a drug court program.

On January 26, 2007, pursuant to CA PC Section 1203.4, the Court set aside the convictions, entered a plea of not guilty and dismissed the case. Further, the Court ordered that Petitioner’s probation be terminated, Petitioner having successfully completed the terms of her concurrent diversion/drug court program.

On February 27, 2013, with approval of the court, Petitioner pleaded nolo contendere to CA PC Section 148(a)(1), a misdemeanor, in Superior Court of California, County of Los Angeles, in Case No. POM2PK4207. The Court suspended any sentence and placed Petitioner on 36 months of summary probation with 2 days’ jail time served, plus fine and fees.

On December 8, 2014, the Court granted Petitioner’s motion for early termination of probation and she subsequently petitioned to have the case dismissed pursuant to CA PC Section 1203.4.

On January 13, 2015, the Court granted Petitioner’s motion, setting aside and vacating the finding of guilt, entering a plea of not guilty, and dismissing the criminal complaint.

By letter dated December 17, 2019, the Department sent Petitioner, via certified mail, a letter of Intent to Deny Application for Original Real Estate Salesperson’s License.

In that denial of licensure, the Department informed Petitioner that, based on the Application, it had concluded that she 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 her conduct had violated A.R.S. § 32-2153(B)(7).

The Department received Petitioner’s appeal on January 6, 2020. Petitioner’s appeal indicated that she had been unable to secure a practice monitor in the short time following receipt of a consent order (to grant a provisional license).

On January 27, 2020, the Department issued its Notice of Hearing alleging violations by Petitioner of A.R.S. § 32-2153(B)(7), and indicating its request to issue a two-year provisional real estate sales person license to Petitioner.

At hearing, the Department’s position was that all three past incidents reflect on Petitioner’s character and that the incidents demonstrate that Petitioner is not a person of honesty, truthfulness and good character. At hearing, the Department expressed doubt as to the characterization of the officer’s actions as “violent” as was set forth in Petitioner’s explanation as to the 2013 incident, and argued, that the 2013 incident demonstrated a lack of respect for authority. The Department argued that the real estate field is highly regulated and that it has a responsibility to the public with regard to appropriately licensing salespersons.

Petitioner has been in Arizona for 5 years and the Department brought forward no other criminal activity or licensure discipline in California, Arizona, or any other state that may have been discovered through a background check.

At hearing, Petitioner indicated that she has a full time job with the airlines and that she had wanted to have a real estate license to do her own land deals and then slowly move into real estate sales with the public. Petitioner noted that she would not be opposed to being monitored under a provisional licensure but that while she knows a person who is a licensed agent, she is not acquainted with that person’s broker.

The Administrative Law Judge found Petitioner to be credible as she testified and as she recounted the 2013 incident at hearing. Her explanation regarding the 2013 incident at hearing matched her written explanation.

CONCLUSIONS OF LAW

The Department bears the responsibility to protect the public through its enforcement of licensing statutes. This matter lies within its jurisdiction.

Petitioner bears the burden of proof and must establish that she meets statutory qualifications for a real estate salesperson’s license by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

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:

.....

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

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 Petitioner’s two 2005 misdemeanor convictions were dismissed, one in 2005 and one in 2007, by the California Court using its “discretion and [in] the interests of justice.” Further, Petitioner’s credible testimony demonstrated that Petitioner’s 2013 incident was fraught with that particular circumstance; that 2013 conviction was also dismissed in 2015.

While past convictions are an important consideration for the Department, in this instance, having no other convictions and based on her testimony, Petitioner has demonstrated she has resolved the issues that led to the actions and convictions in her past and the Administrative Law Judge concludes that Petitioner has established that she has sufficient good character and reputation at this time to satisfy the statutory requirement for licensure as a real estate salesperson.

RECOMMENDED ORDER

The Commissioner shall reverse the Department’s decision to deny Petitioner’s Application for a real estate salesperson’s license and grant 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, March 26, 2020.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate