ALJDEC decisions subject to certification as final

20F-259-REL · Department of Real Estate · 2020-05-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

Houseal, Gabriel, holder of License No. SA688870000 (Candidate),

Petitioner.

No. 20F-259-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 5, 2020

APPEARANCES: Petitioner Gabriel Houseal appeared on his own behalf. The Arizona Department of Real Estate was represented by Assistant Attorney General Lynette Evans.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

On or about February 3, 2020, Petitioner Gabriel Houseal submitted to the Arizona Department of Real Estate (Department) a Salesperson Application Form to be licensed as a real estate salesperson, in which Petitioner answered “yes” to the following questions:

Has the Applicant . . . .

Had a professional or occupational license or registration of ANY kind denied, suspended, restricted, or revoked? (Drivers License/CDL not included)

Had/Have an administrative order and/or ANY other disciplinary action taken against ANY license issued to them by any local, state, or federal regulatory agency including the Arizona Department of Real Estate?

Petitioner also submitted a written narrative to the Department describing the disciplinary action taken against his license by the Arizona Board of Massage Therapy Examiners (Board).

According to the records obtained and presented by the Department, Petitioner’s history with the Board as it relates to the instant matter consisted of the following:

On or about September 29, 2016, the Board issued Findings of Fact, Conclusions of Law, and Order in which the Board determined that Petitioner had engaged in substandard care and failed to adhere to the standards and ethics of the massage therapy profession.

As a result of the findings, Petitioner was placed on probation for one year from the date of the order and was required to complete 15 in-class hours of continuing education.

On or about September 11, 2019, the Board issued a Decision and Order in which the Board determined that Petitioner engaged in conduct that could result in harm or injury to the public, engaged in sexual activity with a client, and engaged in massage therapy of the breasts of a female client without advanced oral or written consent.

As a result of the findings, Petitioner’s massage therapy license was suspended for six months from the effective date of the order and Petitioner was ordered to pay a civil penalty of $250.00.

On or about February 11, 2020, the Department sent Petitioner, via certified mail, an Intent to Deny Application for Original Real Estate Salesperson’s License, in which the Department informed Petitioner that, based on his 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 informed Petitioner that its conclusion was based in part, but not exclusively, based in part on the discipline of his massage therapy license detailed above. The Department informed Petitioner that his conduct had violated A.R.S. § 32-2153(B)(7). Therefore, the Department notified Petitioner that it intended to deny his license application.

On or about March 9, 2020, Petitioner requested an appeal.

At hearing, Petitioner adamantly denied that he had engaged in the conduct underlying the Board’s discipline. Petitioner asserted he was the victim of the sexism in the massage therapy industry and that he was openly mocked during the Board’s meeting. Petitioner maintained that the client in the second matter admitted during the Board meeting that he did not massage her breasts, but the Board still concluded that he did. Petitioner requested a provisional license so he could start a career in a new field.

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 he 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 Board concluded that Petitioner engaged in a pattern of inappropriate behavior with massage therapy clients and the Department properly relied on the findings of the Board to determine that Petitioner was not a person of honesty, truthfulness, or good character in violation of A.R.S. § 32-2153(B)(7).

The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. It would not fulfill that statutory mandate by licensing Petitioner as a real estate salesperson at this time.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Department affirm its decision to deny Petitioner’s application for a real estate salesperson’s license at this time and dismiss this 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.

-54864001

001

-137160-45720000Done this day, May 20, 2020.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate-54864001

001

-137160-45720000