ALJDEC decisions subject to certification as final

20F-320-REL · Department of Real Estate · 2020-06-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

STARR, ANTHONY, holder of License No. SA690037000 (Candidate),

Petitioner.

No. 20F-320-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: May 26, 2020

APPEARANCES: Anthony Starr on his own behalf; Lynette Evans, Esq. for the Department of Real Estate

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On April 20, 2020, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing setting the above-captioned matter for hearing on May 26, 2020 at the Office of Administrative Hearings in Phoenix, Arizona.

On or about March 19, 2020, Petitioner Anthony Starr submitted to the Department an application for a real estate salesperson’s license. In his application, Mr. Starr disclosed a felony conviction and a misdemeanor conviction.

Based on Mr. Starr’s disclosed convictions, the Department alleges that Mr. Starr violated Ariz. Rev. Stat. sections 32-2153(B)(2) and (B)(10). As such, on March 25, 2020, the Department issued to Mr. Starr a notice of Intent to Deny Application.

Mr. Starr requested a hearing, which led to this matter being scheduled.

Through the Notice of Hearing, the Department provided that although grounds exist to deny Mr. Starr’s application, he should be issued a provisional license.

Mr. Starr appeared and testified on his own behalf; the Department presented the testimony of senior investigator Bret Biesenthal.

On February 9, 1994, in Maricopa County Superior Court case CR93-93021, pleaded guilty to Aggravated Assault, a class 6 felony.

Through an Order in case CR93-93021 dated March 7, 1994, the Court noted that Mr. Starr was guilty of Aggravated Assault, a class 6 felony, but the Court found that the finding of guilt should be withheld and Mr. Starr was sentenced to one year of probation.

Through an Order in case CR93-93021 dated November 1, 1994, Mr. Starr was granted an early discharge from probation.

Through an Order in case CR93-93021 dated October 8, 1997, the Court dismissed the proceedings against Mr. Starr after noting that a judgment of guilt had never been entered against Mr. Starr and that he had completed his probation

Mr. Starr explained that the assault conviction resulted from him losing his temper and striking his son while disciplining the child on June 30, 1993. According to Mr. Starr, he has never physically disciplined his children since that incident.

On October 5, 2004, Mr. Starr was convicted of shoplifting in the Scottsdale City Court. Mr. Starr was placed on probation and ordered to pay a fine. Through an Order dated April 28, 2005, the Court set aside the judgment of guilt.

Through his disclosure statement, Mr. Starr explained that his family had been experiencing financial hardship and he attempted to leave a grocery store with items he had not paid for.

In his disclosure, Mr. Starr also noted that he had been being treated for depression at the time of the shoplifting offense and was subsequently diagnosed with bipolar disorder for which he has continuously received treatment and medication.

Mr. Starr’s goal is to obtain a license to serve his family and friends during his retirement. He has received his fingerprint clearance and has an airport clearance that is necessary for his work as a limo driver.

The Department acknowledged that Mr. Starr’s convictions occurred long ago, but considering that one conviction was for a violent act and the second for shoplifting, it believes that a provisional license and the related supervision are appropriate.

Mr. Starr’s position is to the effect that considering the ethical duties that license holders are required to follow, the additional restrictions of a provisional license are not necessary. He also argued that he has changed in the years since the convictions, including receiving treatment for his bipolar disorder.

Mr. Starr argues that he should not be punished again for offenses for which he was punished in the past.

In his request for a hearing, Mr. Starr made reference to charitable work he is involved in, but he did not testify as to the full nature and extent of that work, nor did he present any character witnesses.

CONCLUSIONS OF LAW

Mr. Starr bears the burden of persuasion to show that he should be granted a license. Ariz. Rev. Stat. § 41-1092.07(G)(1).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119.

A preponderance of the evidence is:

The 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.

Black’s Law Dictionary 1373 (10th ed. 2014).

Ariz. Rev. Stat. section 32-2153(B) provides in pertinent part:

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:

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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.

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10. Violated any federal or state law, regulation or rule that relates to real estate or securities or that involves forgery, theft, extortion, fraud, substantial misrepresentation, dishonest dealings or violence against another person or failure to deal fairly with any party to a transaction that materially and adversely affected the transaction. 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 fact that a criminal conviction has been set aside does not render that conviction a nullity and the Department may consider Mr. Starr’s convictions in its licensing determination. See Parsons v. Ariz. Dep’t of Health Servs., 242 Ariz. 320, 395 P.3d 709 (App. 2017).

“The purpose underlying the statutes governing those occupied in real estate activities, is to protect the public from unscrupulous and unqualified persons.” Bonasera v. Roffe, 8 Ariz. App. 1, 2 (App. 1968). Consequently, a decision to deny a license is not properly considered as punishment.

Because Mr. Starr has convicted of aggravated assault and shoplifting, the Department has authority to deny his application for licensure. Ariz. Rev. Stat. §§ 32-2153(B)(2) and (B)(10).

Although Mr. Starr’s convictions occurred many years ago, he presented no witnesses to corroborate his testimony regarding the circumstances of those events, nor did he present any character witnesses. Consequently, he has not proven by a preponderance of the evidence that he should be granted a salesperson’s license without restriction.

Mr. Starr’s appeal should be denied and the Department’s recommendation that he be granted a provisional license should be affirmed.

ORDER

IT IS ORDERED that Anthony Starr’s appeal is denied and the Department of Real Estate’s decision to grant him a provisional license is affirmed.

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 is five days after the date of that certification.

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-137160-45720000Done this day, June 10, 2020.

/s/ Thomas Shedden

Thomas Shedden

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

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-137160-45720000