ALJDEC decisions subject to certification as final

20F-324-REL · Department of Real Estate · 2020-10-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of Original Application for Real Estate Salesperson's License of:

ROBERT RUSSELL, holder of license number SA689394000 (Candidate),

Petitioner.

No. 20F-324-REL

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: October 7, 2020

APPEARANCES: Robert Russell on his own behalf; Holly Wan, Esq. for the Department of Real Estate

ADMINISTRATIVE LAW JUDGE: Thomas Shedden

FINDINGS OF FACT

On May 26, 2020, the Arizona Department of Real Estate (“Department”) issued a Notice of Hearing setting the above-captioned matter for hearing on July 8, 2020 at the Office of Administrative Hearings in Phoenix, Arizona.

The Notice of Hearing provided that hearing was being held to determine whether grounds exist to affirm the Department’s intent to deny Petitioner Robert Russell’s application for a real estate salesperson’s license.

Through the Notice of Hearing the Department alleged that Mr. Russell has violated Ariz. Rev. Stat. section 32-2153(B)(2) and that he had not shown that he is a person of honesty, truthfulness and good character in violation of section 32-2153(B)(7).

The matter was twice continued at Mr. Russell’s request and the hearing was conducted on October 7, 2020.

Mr. Russell appeared and testified on his own behalf, and he presented the testimony of his wife Nonna Russell. The Department presented the testimony of senior investigator Bret Biesenthal.

On March 23, 2020, the Department received Mr. Russell’s application for licensure. Mr. Russell’s application was not complete because he did not include the required Disciplinary Actions Disclosure form.

In the application he submitted on March 23rd, Mr. Russell disclosed that he had been convicted of leaving the scene of an accident, a felony, and was sentenced to two years in prison. Mr. Russell acknowledged that he was driving while under the influence of alcohol. Mr. Russell did not disclose that he had struck a pedestrian and fled the scene.

Mr. Russell pleaded guilty to the felony offence in Nevada’s Eight Judicial District Court on May 19, 2018. Mr. Russell was released from prison on February 19, 2018, and he received an honorable discharge from parole on June 19, 2018.

Through an email dated March 31, 2020, a Department disclosure specialist informed Mr. Russell that he was required to submit the Disciplinary Actions Disclosure form, and to explain why he had not informed the Department that he had been convicted of extreme DUI in Surprise Arizona on September 8, 2017.

Mr. Russell responded that he had overlooked the Disclosure form and that he had not disclosed the September 2017 extreme DUI conviction because he had been thinking that the conviction in Nevada also encompassed that conviction. He added that he was fully aware of the 2017 extreme DUI conviction because it had been discussed in his “clearance card process.”

The Department’s representative advised Mr. Russell that he was required to submit the Disclosure form and the court documents related to the 2017 extreme DUI conviction. Mr. Russell did not file the documents and the Department sent Mr. Russell three additional requests to provide them.

In an email dated April 17, 2020, Mr. Russell wrote that in 2015 he was drinking while he was driving on business between Las Vegas and Phoenix and he was charged with DUI by the Surprise PD. It was this arrest that led to his 2017 extreme DUI conviction.

Mr. Russell subsequently submitted the Disclosure form, and court documents and a written statement related to his 2017 extreme DUI conviction.

Regarding 2017 the extreme DUI conviction, in his written statement dated April 27, 2020, Mr. Russell disclosed that between 2014 and 2016 his alcoholism led to self-destruction and that in 2016 he was diagnosed with “alcohol induced amnesia.” He wrote that because of his amnesia and there are things that he cannot remember. Mr. Russell added that he had been sober for four years.

On May 23, 2016, in the Justice Court, Las Vegas Township, Mr. Russell was also convicted of driving on the influence, with the underlying offence committed on June 23, 2015.

Through a letter dated April 21, 2020, the Department informed Mr. Russell of its intent to deny his application based in part on his 2017 extreme DUI conviction of September 8, 2017, and his felony conviction for leaving the scene of an accident on May 23, 2016. The Department informed Mr. Russell that his conduct was in violation of Ariz. Rev. Stat. sections 32-2153(B)(2) and (B)(7).

At the hearing, Mr. Biesenthal explained that the Department’s concerns about granting Mr. Russell a license are related to the fact that his leaving the scene of an accident was a serious felony, that Mr. Russell’s convictions were relatively recent, that there were three convictions in which alcohol was involved shows a pattern and a lack of judgement on Mr. Russell’s part, and that his drinking and driving showed a lack of good character.

Mr. Russell requested a hearing, which led to this matter be scheduled.

Mr. Russell testified that in November 2015, he was thrown from his vehicle during an accident and he spent months in the hospital; he has amnesia and cannot remember a lot of things.

Mr. Russell testified that he had provided the Department with documentation from therapists and doctors, but neither Mr. Russell nor the Department provided these documents as proposed exhibits.

Mr. Russell testified to the effect that his convictions came at a dark time in his life; he professed to “owning” his record, but he added that he also owns that he has been rehabilitated.

Ms. Russell testified that to her knowledge, Mr. Russell has consumed no alcohol or drugs in the last four years. Ms. Russell confirmed that Mr. Russell has, or had a problem with alcohol.

CONCLUSIONS OF LAW

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

Because Mr. Russell has been convicted of a felony, under Ariz. Rev. Stat. section 32-2153(B)(2) the Department has authority to deny his application for licensure.

Mr. Russell’s felony conviction and his DUI convictions show that he was not a person of good character during the times involved, which provides the Department authority to deny the application under section 32-2153(B)(7).

The Department’s concerns about the serious nature of Mr. Russell’s felony conviction and his pattern of bad judgment and lack of good character evidenced by his driving while impaired are well taken. Although Mr. Russell testified that he has been rehabilitated, his only evidence to support that contention was that he has not consumed alcohol or drugs for four years. But the issue is not whether Mr. Russell is now sober, but whether he now possesses the requisite good character for the Department to issue him a license and he presented no witnesses or other substantial evidence to show that he does.

Mr. Russell had not shown by a preponderance of the evidence that he should be granted a license. Consequently, Mr. Russell’s appeal should be denied and the Department’s denial of his application should be affirmed.

ORDER

IT IS ORDERED that Robert Russell’s appeal is denied and the Department of Real Estate’s decision to deny his application 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, October 27, 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