ALJDEC decisions subject to certification as final

20F-268-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:

Cook, Dean, holder of License No. SA674179000 (Candidate),

Petitioner.

No. 20F-268-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 6, 2020

APPEARANCES: Petitioner Dean Cook 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 12, 2020, Petitioner Dean Cook 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 . . . .

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, or the conviction is being appealed?

13. Been convicted or entered into a plea agreement or a plea of NOLO CONTENDERE (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 or the conviction is being appealed?

CONVICTIONS – DUI AND/OR RECKLESS DRIVING, EITHER MISDEMEANOR OR FELONY, MUST BE DISCLOSED

Minor traffic citations do not constitute a misdemeanor or felony offense.

Petitioner also submitted a disclosure statement to the Department describing the events giving rise to his convictions.

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

On or about July 9, 2018, Petitioner entered a plea of guilty to and was convicted of a charge of Conspiracy to Commit Marijuana-Transport and/or Sell, a class 6 undesignated felony, a charge of Solicitation to Commit Marijuana-Transport and/or Sell, a class 6 undesignated felony, and a charge of Narcotic Drug-Possess for Sale, a class 2 felony.

Petitioner was sentenced to supervised probation for a term of 2 years to begin on July 9, 2018.

On or about December 31, 2019, Petitioner was discharged from probation for all three convictions. In addition, the conviction of Conspiracy to Commit Marijuana-Possess for Sale, a class 6 undesignated felony, was ordered to be designated as a misdemeanor.

On or about January 31, 2020, the conviction of Solicitation to Commit Marijuana-Possess for Sale, a class 6 undesignated felony, was ordered to be designated as a misdemeanor.

On or about February 26, 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 his convictions detailed above. The Department informed Petitioner that his conduct had violated A.R.S. § 32-2153(B)(2) and A.R.S. § 32-2153(B)(7). Therefore, the Department notified Petitioner that it intended to deny his license application.

On or about March 4, 2020, Petitioner requested an appeal.

At hearing, Petitioner testified that his convictions were not a testament to his lack of good character, but the result of his improper reading and understanding of the statutes surrounding medical marijuana. Petitioner stated that in 2013, he was a caregiver under the Arizona Medical Marijuana Act (AMMA) and was authorized to cultivate marijuana. Petitioner indicated that, at that time, he had only one patient for whom he was a caregiver and, as a result, he had extra medicine that the AMMA authorized him to give away to other patients. Petitioner also stated that a provision under the AMMA allowed people to make donations to qualifying patients. Petitioner testified that his discussions with other caregivers led them to believe, as a group, that the two provisions read together allowed other qualifying patients to “make donations” to caregivers and for the caregivers to “give away” extra medicine to the qualifying patients. The caregivers got together in a farmers market type of set up in which people had to present their medical marijuana card to come in and which happened on a regular basis at that time. The Glendale Police Department ran an undercover operation over a number of weeks and visited Petitioner’s table. The police raided the location one day and issued citations to only eight individuals. Petitioner stated he was led to believe the charges were being dropped, and he moved out of state. Petitioner only learned that the case was moving forward after he moved back to Arizona some years later. Petitioner asserted that he pled guilty because the judge told him during a pretrial conference that, if convicted, he would be facing a more severe sentence including jail time. Petitioner admitted that the events indicated a lack of good judgement at the time and that he should have consulted with an attorney about the interpretation. Petitioner denied that he was an individual lacking good character.

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:

. . . .

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.

Petitioner was criminally convicted of three drug-related offenses, one of which remains a class 2 felony. As such, Petitioner was convicted of a felony in violation of A.R.S. § 32-2153(B)(2).

While Petitioner asserted his convictions were a testament to his lack of good judgement, rather than an indication that he was not a person of good character, his failure to ensure his actions were within the confines of the law indicate a lack of honesty and truthfulness. As such, Petitioner engaged in conduct demonstrating that he was not a 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

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-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

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-137160-45720000