ALJDEC decisions subject to certification as final

20F-251-REL · Department of Real Estate · 2020-04-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Application for Real Estate Salesperson License of:

GAPEN, DAVID, holder of License No. SA689247000 (Candidate),

Petitioner.

No. 20F-251-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 9, 2020, at 1:00 p.m.

APPEARANCES: David Gapen (“Petitioner”) appeared telephonically on his own behalf; the Arizona Department of Real Estate (“the Department”) was represented by Lynnette Evans, Esq., Assistant Attorney General, who also appeared telephonically.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Procedural Background

On or about January 24, 2020, Petitioner filed an application to be licensed as a real estate salesperson with the Department. Petitioner answered “yes” to the following two questions on the application:

Has the Applicant . . .

. . . .

12. Been convicted and/or entered into a plea agreement and/or a plea of NOLO CONTENDERE (no contest) to ANY felony 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?

13. Been convicted or entered into a plea agreement or a plea of NOLO CONTENDRE (no contest) to ANY misdemeanor in Arizona or any other state, whether or not the plea or verdict was set aside, judgment or sentencing was deferred, the conviction was dismissed or expunged, or has been pardoned?

Petitioner attached to his application for a real estate salesperson’s license court documents for his convictions and written explanations for his “yes” answers, which are set forth below.

On February 5, 2020, the Department informed Petitioner via certified mail that based on his criminal convictions, it had concluded that he did not meet the qualifications for licensure as a salesperson pursuant to A.R.S. § 32-2153(B)(2), (B)(5), (B)(7), (B)(9), and (B)(10). Therefore, the Department notified Petitioner that it intended to deny his license application.

Petitioner requested a hearing on the Department’s denial of his application for a real estate salesperson’s license, stating in relevant part as follows:

I understand the reluctance of the [Department], when it comes to my application, due to my criminal history. However I want the [Department] to know I am not the same person who committed those crimes 15 to 20 plus years ago.

This will not be an attempt to bore you with the story of my troubled youth. My problems were many, but the bulk of them came from my tendencies to abuse drugs and alcohol. I put myself in bad situations.

Many years have passed. I have been sober for 15 years. I am a father of 4 boys. The 2 that are old enough to attend school are straight A students, and both are in the gifted program. I have been a productive tax paying citizen for a long time. I have built a great reputation [amongst] my community in both business and personal relationships.

There are many who would attest to the changes I have made. I made a lot of mistakes in my younger years, but I come to you a changed man. A man who has completely reshaped his life. I want to get into the Real Estate business in order to help people. I purchased my first home about 3 and a half years ago, and it made me feel so proud. I want to help others feel that same joy that I felt when I was given the keys to my home.

This process of applying for my license has been grueling. Getting my fingerprint clearance card required me to explain every detail of my criminal history. I had to open up and relive the darkest moments of my life in doing so. I am not proud of my past. However, I am proud of the changes I made, and the man, and father, I have become.

Please give me a chance to do more for my children. To reach my full potential. I will not fail. I will not take for granted any opportunity given. I will not make you regret giving me a chance.

The Department referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On April 9, 2020, a telephonic evidentiary hearing was held. Petitioner submitted as exhibits a photograph of himself and his family and one photograph of his four sons, testified on her own behalf, and presented the testimony of seven other witnesses. The Department submitted seventeen exhibits to establish the facts set forth above and presented the testimony of its Senior Investigator, Brett Biesenthal.

Petitioner’s Criminal History

On April 23, 1998, Petitioner was convicted pursuant to his guilty plea in the Court of Common Pleas of Greene County, Pennsylvania Case No. 28, of the offenses of burglary, unlawful taking, and criminal mischief. As a result, Petitioner was sentenced to a concurrent term of not less than 6 months’ imprisonment and ordered to pay fines and restitution. The Greene County Court of Common Pleas Court Summary indicated that the crime of burglary was a felony-2 and the crime of unlawful theft was a misdemeanor-1.

Petitioner provided a general overview and explanation with his license application, which he denominated as No. 28, as follows:

. I am going to do the best that I can to explain all the criminal history of my adult life. My father was killed in 1985, when I was just seven years old. I mention this, not as an excuse, but as one of the situations that may have led to some of my transgressions as a troubled/misguided youth and young adult. I was raised by a wonderful single mother, who absolutely did the best she should. The support and love from her, and my grandparents, was always there. However, sometime in my early to mid-teens, I began a battle with substance abuse that lasted into my late twenties.

After graduating from high school with no true goals, I fell heavy into the use of drugs and alcohol. My substance abuse led to crime. The year after graduating, I surrounded myself with other drug and alcohol using acquaintances, and got involved in criminal activity.

In January of 1998, I was arrested, charged and ultimately convicted of several crimes that had occurred throughout the previous year or so.

The First crime was burglary. At the time of the offense, an acquaintance and I were heavily intoxicated after a night of drinking. Sometime after the bars closed, we broke into a state-owned liquor store, and stole several bottles of liquor. This ended up being the most severe of my charges. I was convicted of a second degree felony because it was a state-owned establishment.

No. 28, 29, and 30, criminal, 1998 were all settled as part of one case. I have tried to separate them into section as best I could.

On March 8, 1999, Petitioner was convicted pursuant to his guilty plea in the Court of Common Pleas of Greene County, Pennsylvania Case Nos. 29 & 30 of the offenses of arson and related offenses, two counts of receiving stolen property, two counts of criminal conspiracy, and theft by unlawful taking. As a result, Petitioner was sentenced to a concurrent term of not less than 6 months or more than 12 months’ imprisonment and ordered to pay fines and restitution. The Greene County Court of Common Pleas Court Summary indicated that the crime of arson was a felony-3, receiving stolen property was a felony-3, criminal conspiracy/arson was a felony-1, and criminal conspiracy/receiving was a felony-1.

Petitioner provided an explanation with his license application, which he denominated as No. 29, as follows:

The second was theft. Sometime around the year 1997, while again being heavily intoxicated, I stole, and subsequently crashed a vehicle. I was spotted by the owner while taking the vehicle and while being chased, I lost control and crashed. I then fled on foot. I was later charged with this crime as a part of a criminal investigation by the state police.

Petitioner provided an explanation with his license application, which he denominated as No. 30, as follows:

The third crime was criminal damage/vehicular arson. I was hanging out with a drug and alcohol abusing acquaintance who picked me up in a stolen truck. While driving off-road, the vehicle became disabled, and he set fire inside the vehicle. We were both charged with the damage to the truck.

All of these charges stem from an investigation into myself and the same drug and alcohol using acquaintance.

In January of 1998, I was sentenced to six months to 23 months in jail for my part in those crimes. After serving six months I was released, but shortly after I was arrested for underage drinking which was a violation of my probation, and I served an additional 10 months in jail.

On January 21, 1999, Petitioner pled guilty to the crime of driving under the influence of alcohol in the Court of Common Pleas of Greene County, Pennsylvania Case No. 737. As a result, Petitioner was sentenced to not less than one year in jail and was ordered to pay various fines, perform community service, and undergo outpatient counseling.

Petitioner provided an explanation with his license application, which he denominated as No. 737, as follows:

I’m not sure of the exact date, but sometime around 1998 I was also arrested for a DUI. I was pulled off the road and sleeping with the vehicle running, while intoxicated. I received time served for the DUI, I believe, while serving jail time for my other crimes.

In hopes to better myself, after completing my probation in the year 2000, I moved to Arizona to go to school at the Conservatory of Recording Arts and Sciences. This is a highly regarded recording and audio engineering school. I graduated in 2001.

On or about March 26, 2003, Petitioner pled guilty to the crime of possession of marijuana, a Class 1 misdemeanor, in Maricopa County Superior Court Case No. CR 2002-080571. As a result, Petitioner was sentenced to six months’ probation and required to perform community service and to pay fines.

Petitioner provided an explanation with his license application, which he denominated as Case # 2002-080571, as follows:

On September 4th 2002 while attending Mesa Community College, and working in a local recording studio (YR Records), I was arrested, and subsequently charged with possession of marijuana for use. I believe I served one year of probation.

On September 25, 2003, Petitioner pled guilty to the crime of possession of marijuana, a Class 1 misdemeanor, in Maricopa County Superior Court Case No. CR2003-037940. As a result, Petitioner was sentenced to nine months’ probation, and required to perform community services and to pay fines.

On December 24, 2004, Petitioner was discharged from probation in Maricopa County Superior Court Case NO. CR2002-080571. The order of discharge noted that Petitioner’s probation had been reinstated on October 1, 2003, and March 9, 2004, for terms of 18 months and provided the following expiration summary:

Since his reinstatement to probation, the defendant has been struggling with sobriety. However, for the past two months, the defendant has been testing negative for illicit drugs and he is currently attending an outpatient substance abuse program. The defendant’s performance has been significantly improving with each day. The Defendant obtained full-time employment and reported to his supervising officer on a weekly basis. . . . The effective date for this discharge is November 18, 2004. . . .

On October 27, 2005, Petitioner pled guilty to the crime of possession of marijuana, an undesignated felony, in Maricopa County Superior Court Case No. CR2004-136281. As a result, Petitioner was sentenced to be incarcerated in the county jail for three months, followed by two years’ probation, and required to pay fines.

Petitioner provided an explanation with his license application, which he denominated as Case # CR 2004-136281, as follows:

On December 10th 2004 I was arrested for possession of marijuana for use for a third time. However, they didn’t immediately charge me with that crime. Soon after, I found out that the woman I was seeing at the time was pregnant, and I [began] my fight to get sober. That child was born March 25th 2005. He was born very prematurely due to the mother’s use of methamphetamines while pregnant.

I was allowed only supervised visits with my child at that time because CPS took custody of him before his release from the hospital.

Later that year, sometime around August or September of 2005, I was charged and sentenced for the marijuana case from December of 2004. I was sentenced to six months in jail.

While incarcerated in tent city, I did parenting classes, drug classes, and more. I was hoping to continue to obtain custody of my son upon release. Unfortunately, while I was incarcerated, my child’s mother voluntarily severed her paternal [sic] rights, so the state could move to try to sever mine, in order to allow her cousins to adopt my son. I fought for my son. Random urinalysis tests multiple times weekly, hair follicle tests, psychological evaluation, and continued my sobriety. Unfortunately, the State won. They found that I had abandoned my son for a period of six months without just cause. I appealed, and again was denied. I was never allowed to see my son again.

On February 12, 2007, Petitioner was discharged from probation in Maricopa County Superior Court Case No. CR2004-136281 and the undesignated felony was re-designated as a misdemeanor.

Additional Hearing Evidence

Petitioner

Petitioner testified that the criminal offenses happened when he was young. But he won’t allow anyone else to take responsibility for the offenses. He takes full responsibility for his actions.

Petitioner went through a lot when he was in his teens to late twenties. He is now approximately 42 years old.

Petitioner “tried to do” for the wrong people when he was young. He made mistakes. But he didn’t hurt anyone.

Petitioner started drinking heavily when he was 18. He also smoked marijuana.

Petitioner’s felonies in Pennsylvania resulted from three incidents: (1) When he and an associate got drunk and broke into the state-owned liquor store sometime before April 1998, when he was 20 years old; (2) When he became drunk with an associate sometime before March 1999, stole a car, crashed it, and fled on foot; and (3) When an associate picked him up in a stolen truck sometime before March 1999, drove off-road, where the truck became disabled, and his associate set the truck afire. Petitioner testified that the associate was the same person in all three instances.

Petitioner was arrested for all three crimes in late 2003 or early 2004, although he was not charged until 2005. He accepted responsibility for his crimes and served time.

Petitioner moved to Arizona to better himself by going to school at Mesa Community College to get a degree in audio engineering. He worked with people in the music industry and continued to smoke marijuana. He got caught multiple times possessing marijuana, but never dealt.

In 2005, Petitioner had a son. The child’s mother used methamphetamine and other illicit drugs. Because the child was born with drugs in his system, CPS was involved. The child was 6 months old before Petitioner met him. Petitioner’s former girlfriend’s cousins tried to adopt the boy.

Petitioner went to Pennsylvania to say good-bye to his grandmother before she passed away and missed a court date and was picked up on a warrant. He spent 6 months in tent city, where he took parenting and substance abuse classes.

When he was released, he was required to submit to random urinalysis. Because he didn’t have a car, he had to walk a mile to catch the bus. He never tested positive.

Petitioner testified that by the time trial was held on his ex-girlfriend’s cousins’ petition to adopt his son, his ex-girlfriend had given up her maternal rights. The jury found that he had abandoned his son during the six months he spent in tent city for something he had done before the child was born. The jury cried when it rendered the verdict. Petitioner lost his appeal. He has not seen his first son since. His son would now be fifteen years old.

Petitioner testified that he has not smoked marijuana, drunk alcohol, or taken any other illicit drug since he was released from tent city in 2005.

Petitioner testified that the experience of losing his first son changed him. It was the hardest thing he ever had to do to go with his life. He does not want to go back to his old life because it was broken and he wants a better life. He has done everything he can. He goes to church at the Northwest Baptist Church. He tries to give back to the community. He is proud of the man he has become.

Petitioner has had four sons with his current partner, whom he has been with since 2006. Two of his sons go to school, taking advanced placement courses and getting straight A’s. He tries to teach them what he didn’t know when he was their age. Petitioner has worked in call centers and currently drives for Uber. Petitioner’s partner has stayed at home since late 2007 to watch their kids.

Petitioner bought his first house several years ago. It made him so proud. He would like to help others purchase houses for their families. He wants to give his family a better life. People who have goodreputations offered to testify on his behalf. He will not screw up if the Department given him a license.

Dr. Dende

Neil Dende, D.C. first met Petitioner eight years ago, when Dr. Dende treated Petitioner after an accident. Although Dr. Dende does not see Petitioner socially, he feels he knows Petitioner based on the approximately 50 times he has treated Petitioner for two accidents. Dr. Dende has had numerous conversations with Petitioner and volunteered to testify for Petitioner.

Dr. Dende knows about Petitioner’s family and job. Dr. Dende feels he is Petitioner’s mentor. Dr. Dende has encouraged Petitioner to pursue activities that will use his mind and provide spiritual fulfillment because he is a smart, good family man.

Petitioner shared his early experiences with Dr. Dende. Dr. Dende believes that Petitioner is now a changed man.

Although Dr. Dende understands the Department’s concerns, he believes people who have changed deserve a second chance. Dr. Dende has been practicing for 36 years, has a good reputation, and is careful about whom he puts his reputation on the line for. Petitioner has integrity and will be a good, competent real estate salesperson.

Mr. Clarke

Curtis Clarke met Petitioner when both worked in sales in a call center in 2005 or 2006. They have stayed in touch.

Mr. Clarke now is in the mortgage business and has a real estate brokerage. He would give Petitioner a job if the Department gave him a license. Petitioner has the personality and work ethic needed to help people in the real estate business.

Mr. Clarke knows about Petitioner’s criminal history, but it does not affect Mr. Clarke’s opinion of Petitioner. Petitioner has made significant changes and has become a family man. He doesn’t have time to do anything but take care of his family. It has taken him some time to find his vocation and career.

Mr. Clarke has never seen Petitioner drink, even though Petitioner attends happy hours and meetings for real estate professionals. Petitioner has never even taken a sip of beer, even though some licensed professionals at meetings were much less sober.

Mr. Casteñeda

Paul Casteñeda has been Petitioner’s neighbor for the four years since Mr. Casteñeda moved into the neighborhood. Petitioner was open about his past. He is now a family man.

Mr. Casteñeda works as a staff representative for the union, evaluating cases to determine whether the union will become involved in the cases going forward. He sees people lying and pleading, saying what they think will cause the union to move the case forward. Mr. Casteñeda testified that Petitioner was not like that; he is trustworthy.

Mr. Casteñeda must travel for work. When Mr. Casteñeda is out-of-town, his son walks to Petitioner’s house and Petitioner takes him to school. Mr. Casteñeda’s son spends hours playing at Petitioner’s house with his sons. Petitioner has the keys to Mr. Casteñeda’s house so he can feed the dogs and watch things while the family is out of town. Petitioner is always willing to help and reassures Mr. Casteñeda that his house and family are alright when he is traveling.

Mr. Casteñeda and his family attend parties with Petitioner and his family. Mr. Casteñeda has never seen Petitioner even pick up a beer, although some people have a drink or two. Mr. Casteñeda and Petitioner sit outside and talk until their wives call them in.

Mr. Casteñeda would recommend Petitioner to his friends if he had a real estate salesperson’s license. Everyone makes mistakes. Petitioner has changed. Petitioner deserves a second chance.

Mr. Kramer

James Kramer has known Petitioner since 2005 or 2006, when Petitioner was looking for a rental. Mr. Kramer knows a little about Petitioner’s crimes.

Mr. Kramer’s and Petitioner’s families get together for dinners. Their wives are friends.

Mr. Kramer talks to Petitioner twice a week and they get together about once a month. Mr. Kramer and Petitioner both have teams in a fantasy football league and regularly meet.

Mr. Kramer has seen Petitioner at clubhouses, bars, and happy hours. Petitioner never drinks even if Mr. Kramer and others have a drink or two.

Mr. Kramer testified that Petitioner would be a good real estate salesperson because he has an outgoing personality, has integrity, and always thinks of other people, especially his family.

Mrs. Hermann

Kathleen Hermann met Petitioner at their children’s bus stop ten years ago, when Petitioner struck up a conversation while they were both walking their children to the bus stop. She and her husband became friends with Petitioner and his wife.

Petitioner has access to Mrs. Hermann’s house. He is trustworthy. She has a hard time believing his criminal past.

As a side business, Mrs. Hermann’s husband and Petitioner breed and sell pythons. They share costs and profits equally. Petitioner works regular hours on the business. He is hardworking and puts in many hours, cleaning up cages even when he does not feel well. He is also good with computers.

Starbucks and Dutch Bros. are at war over which will be Petitioner’s favorite drink. Mrs. Hermann has never seen him drink alcohol. He does not have alcohol at his house.

Mrs. Hermann described Petitioner as a sober, dedicated worker and father. She trusts Petitioner with her household. He has integrity and is responsible. Mrs. Hermann acknowledged that she did not know Petitioner’s complete criminal history, but she did know the gist of it. We all make mistakes. Petitioner will not make the same mistakes because he is a different man. He only wants to be a good provider and good example to his sons. He doesn’t want his sons to make the same mistakes.

Mr. Williams

Ulawrence Williams met Petitioner 20 years ago in a recording studio. Petitioner is a computer whiz and Mr. Williams is a musician. Mr. Williams does not know about Petitioner’s criminal history, but he has never seen Mr. Williams engage in criminal activity. Mr. Williams does not smoke marijuana. He has never seen Petitioner drink.

Mr. Williams has worked in law enforcement as a dispatcher and has done transportation security for the bus and light rail system. He owned a limousine service. He went to school for music.

Mr. Williams knows about Petitioner’s journey in sobriety, which began when Petitioner had his first son. He has since settled into family life. It was an extreme change.

Mr. Williams testified that Petitioner is a classic nerd. He is always reading, talking politics, or working on computers. He helps Mr. Williams with his computers. Petitioner is a family man who is willing to help others.

Petitioner has always worked hard, especially after he had a family. Petitioner got Mr. Williams work in telemarketing and sales. Petitioner is Mr. Williams’ great friend, like a brother.

Mr. Williams testified that Petitioner is a generous, upstanding person. When Mr. Williams and his wife were homeless for two years, Petitioner gave them a place to stay, gave them food, and helped them financially. Mr. Williams has seen Petitioner help others.

Mr. Williams thinks Petitioner should get a license because he is a great salesman, he works hard, and he cares about people. He will sell people what they need. It will also help Petitioner help his family.

Mr. Monahan

William Monahan has been Petitioner’s step-father for more than 20 years. Mr. Monahan had a timber business and now is a county supervisor in Pennsylvania.

Mr. Monahan has known Petitioner to be a hard-working and honest young man. When Petitioner was in trouble, Mr. Monahan had just gotten together with Petitioner’s mother, Trudi. Petitioner was young and had gotten in with the wrong crowd. Mr. Monahan is proud of what Petitioner has become since.

Mr. Monahan has never seen Petitioner abuse any substance. Petitioner cares for his family.

Mrs. Monahan

Trudi Monahan is Petitioner’s mother. Petitioner’s father died when he was seven. When he was eleven, her father, Petitioner’s grandfather, died.

Mrs. Monahan testified that, after Petitioner’s father died, she made poor relationship choices. She married a man who was not good on Petitioner. Their home life was miserable and she eventually divorced the man.

Mrs. Monahan testified that, before she married her second husband, Petitioner made good grades, excelled at sports, and had a good circle of friends. After the marriage, Petitioner’s friends changed for the worse, he no longer engaged in sports, and no longer got good grades at school. But he never stopped caring for others.

Mrs. Monahan testified that, although Petitioner insists she is not responsible for his poor choices, she feels otherwise.

Mrs. Monahan testified that Petitioner never hurt anyone but himself. She could not be more proud of him now. Although he made mistakes, he did not continue down the wrong road. The crimes were a blip on the radar and do not reflect Petitioner’s true character. He is not the same person that he was 15 or 20 years ago.

Mrs. Monahan testified that Petitioner is looking to make a better future for his four beautiful boys. Petitioner has changed and deserves another chance.

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 history of criminal convictions.

Petitioner bears the burden of proof to establish that he is rehabilitated and that he now 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.”

Petitioner does not dispute that in the late 1990’s, he was convicted of six felonies arising out of three separate incidents in Pennsylvania. Petitioner’s testimony that the three crimes involved theft of cars and liquor when Petitioner was young, drunk, and hanging out with irresponsible associates was credible and not contradicted by the any evidence. None of the crimes involved an intent to defraud and Petitioner did not obtain any benefit for himself as a result of the crimes. All the crimes all involved foolish decisions by a young man who abused substances and felt that he had nothing to lose. After Petitioner moved to Arizona for a fresh start, he was convicted three times of possession of marijuana, the last time for an undesignated felony that was later re-designated a misdemeanor, due to continued poor choices of associates and leisure activities.

Therefore, cause exists under A.R.S. § 32-2153(B)(2), (B)(7), and (B)(10) for the Department to deny Petitioner’s license application for a salesperson’s license. However, because Petitioner never tried to defraud anyone for his own benefit, cause does not exist under A.R.S. § 32-2153(B)(5) for the Department to deny Petitioner’s application.

The legislature established the Department to protect “the public health, safety and welfare by regulating the sale of real estate . . . .” A real estate salesperson’s license is a privilege, not a right. The Department has discretion to grant or deny a license to an applicant under A.R.S. § 32-2153(B). The issue is whether in light of Petitioner’s past mistakes and the efforts that he has made to rectify those past mistakes, Petitioner at this time is rehabilitated and can be trusted to be responsible and forthright in his dealings with his clients and members of the public if the Department grants his application for a real estate salesperson’s license.

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." . . .

Once good character is shown to be absent, it is not automatically regained by the mere passage of time. 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. During the late 1990’s, when Petitioner was in his late teens and early twenties, Petitioner abused alcohol and marijuana, stole liquor and vehicles, and crashed the vehicles. In the early 2000’s, when he was in his mid- to late-twenties, he abused marijuana. More than fifteen years has passed since Petitioner’s last criminal act. Petitioner credibly testified that he has stopped drinking and smoking marijuana and has changed his life because he has now has four sons to raise, for whom he wants to set a good example. His witnesses all corroborated his testimony.

Petitioner has established that he is rehabilitated and that the public does not need protection from Petitioner’s past poor decisions that resulted from his substance abuse when he was young.

RECOMMENDED ORDER

Based on the foregoing, IT IS ORDERED that Petitioner David Gapen shall be granted a real estate salesperson’s license, subject to a two-year provisional term. The provisions include the following terms:

Only periods of active licensure shall accrue to the provisional license period.

Petitioner shall submit sworn quarterly declarations, under penalty of perjury, to the Department’s Compliance Officer stating that he has been in compliance with all provisions on his license.

During the provisional license period, Petitioner shall not act as a supervisor, branch manager, partner, owner, co-owner, or officer of any entity licensed under Title 32, Chapter 20, Arizona Revised Statutes, and shall not handle or access property management clients’ trust funds.

During the provisional license period, Petitioner shall be licensed under the supervision of a real estate practice monitor (“practice monitor”), subject to the following terms and conditions:

Prior to or concurrent with hiring and submitting any license change form and fee to the Department, or if Petitioner is actively licensed within ten (10) days of the entry of the final order in this matter, whichever applies, any designated broker representing the Employing Broker employing Petitioner shall submit a signed statement to the Department Compliance Officer, together with the forms and fees for Petitioner to be employed by such broker, if required. The signed statement shall certify that the designated broker has received and read a copy of the final order in this matter, agrees to act as Petitioner’s practice monitor or appoints an associate broker who qualifies under the terms hereof, and agrees to comply with the following requirements:

The proposed practice monitor shall not have been a party to any prior disciplinary action by the Department.

The proposed practice monitor shall not be a partner of or a co-owner with Petitioner in any business enterprise, and shall not be a relative of or have any other relationship with Petitioner that may create, or create the appearance of, a conflict of interest or bias.

An associate broker may act as a practice monitor only if the associate broker is employed at the same location as Petitioner and has been appointed by the designated broker with full written authority pursuant to A.R.S. §§ 32-2151.01(G) and 32-2127. An associate broker appointed to act as practice monitor shall also submit to the Department a signed statement certifying that the associate broker has received and read a copy of the final order in this matter, agrees to act as Petitioner’s practice monitor, and agrees to comply with the requirements set forth herein.

The proposed designated broker or associate broker who will act as Petitioner’s practice monitor is subject to review and written approval by the Department Compliance Officer. This written approval may be withdrawn in the sole discretion of the Department Compliance Officer at any time upon written notice from the Department Compliance Officer to Petitioner and the practice monitor.

The practice monitor shall immediately submit a written report to the Department Compliance Officer if the practice monitor becomes aware of any behavior or conduct in which Petitioner has engaged that violates real estate statutes or rules in which Petitioner has violated any terms of the final order in this matter.

If the practice monitor is an associate broker, the designated broker shall sign and date all reports required pursuant to the final order in this matter, noting that the designated broker has accepted and approved the associate broker’s report.

No practice monitor is required if Petitioner’s license changes to inactive status or expires.

In the event Petitioner changes employment or reactivates, Petitioner shall immediately notify the Department’s Compliance Officer and obtain a new practice monitor who qualifies under the terms and conditions hereof. The new practice monitor must be approved by the Department Compliance Officer before Petitioner’s hire by the new employing broker.

In the event Petitioner’s practice monitor is no longer eligible to act as such or ceases to perform the duties required under the terms of the final order in this matter, or there is a new designated broker for Petitioner’s existing employing broker, Petitioner, Petitioner’s practice monitor and/or Petitioner’s designated broker shall immediately notify the Department Compliance Officer. Unless Petitioner obtains a new practice monitor who qualifies and is approved under the terms and conditions hereof, termination of Petitioner’s employment shall be required within seventy-two (72) hours of the time Petitioner loses the practice monitor.

In the event Petitioner’s license becomes inactive or Petitioner fails to obtain a new practice monitor, Petitioner shall immediately cease and desist from engaging in any activity authorized by Title 32, Chapter 20, Arizona Revised Statutes, and shall notify the Department Compliance Officer that the license is inactive. Petitioner shall obtain a new practice monitor before reactivating Petitioner’s license.

In the event Petitioner discontinues active employment as a real estate licensee in the State of Arizona, Petitioner shall immediately notify the Department Compliance officer and practice monitor. The practice monitor shall submit the proper form to the Department to place Petitioner’s license on inactive status.

Petitioner shall attend eighteen (18) hours of approved continuing education classes in the category of the Commissioner’s Standards. Within thirty (30) days after entry of the final order in this matter, Petitioner shall submit in writing to the Compliance Officer the course sponsor, title and number of the classes Petitioner proposes to take, and obtain the approval of the Compliance Officer. Petitioner shall submit certificates evidencing course completion to the Compliance Officer within one hundred twenty (120) days after entry of the final order in this matter. These continuing education classes shall be in addition to continuing education courses Petitioner has taken or will take for license renewal pursuant to A.R.S. § 32-2130.

If the Department receives information that it deems credible that Petitioner has violated any subsection of A.R.S § 32-2153(A) or (B) or the conditions of her provisional license, the Department shall summarily suspend Petitioner’s real estate salesperson’s license and refer the matter to the Office of Administrative Hearings for an expedited evidentiary hearing pursuant to A.R.S. § 41-1064(C) for revocation of the license.

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, April 20, 2020.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate