ALJDEC decisions subject to certification as final

20F-332-REL · Department of Real Estate · 2020-08-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

JON PAUL MECK, holder of License No. SA681376000,

Respondent.

No. 20F-332-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 13, 2020 at 1:00 PM.

APPEARANCES: Assistant Attorney General Holly Wan, Esq. appeared telephonically on behalf of the Arizona Department of Real Estate (“Department”) with Brett Biesenthal as a witness. Jon Paul Meck (“Respondent”) appeared via videoconferencing on his own behalf. Lynette Evans observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

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After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Commissioner of the Department.

FINDINGS OF FACT

Background and Procedure

On October 03, 2018, the Department issued Real Estate Salesperson License No. SA681376000 to Respondent. The license is scheduled to expire on October 31, 2020.

On March 26, 2019, the Department received notification from the Arizona Department of Public Safety (“DPS”) that Respondent’s Level 1 Fingerprint Clearance Card had been suspended pursuant to Arizona Revised Statute (“Ariz. Rev. Stat.”) § 41-1758.04(C) due to his arrest on or about March 14, 2019.

As a result, the Department opened an investigation and requested Respondent’s records from Maricopa County Superior Court. In doing so the Department learned that on November 26, 2019, Respondent entered a plea agreement for criminal case number CR2019-001484 whereby he plead guilty to Theft, a Class 6 Felony, in violation of Ariz. Rev. Stat. §§ 13-1802(A)(2), 13-1801, 13-702, 13-801, and 13-811(B) for offenses occurring on or between February 01, 2012, and July 31, 2018.

On February 21, 2020, Respondent was convicted and sentenced to 3 years supervised probation and ordered to pay $51,268.87 in fees and restitution.

On April 07, 2020, the Department issued an Order of Summary Suspension and Notice of Opportunity for Hearing to Respondent regarding License No. SA681376000.

On June 17, 2020, the Department issued a Notice of Hearing setting the above-captioned matter for hearing at 1:00 p.m. on August 13, 2020, at the Office of Administrative Hearings (“OAH”), an independent state agency. Per the Notice of Hearing the issue to be determined is whether grounds exist for the Department to revoke Respondent’s real estate salesperson’s license.

Hearing Evidence

The Department presented the testimony of senior investigator Brett Biesenthal (“Investigator Biesenthal”) and submitted exhibits 1-9 into the record. Respondent testified on his own behalf. The Notice of Hearing was also admitted into the record. The substantive facts are as follows:

On an unknown date, the acting Vice President and Secretary of the Arizona Tactical Officer Association (“ATOA”) and a Lieutenant from the Prescott Police Department filed a complaint for theft and embezzlement against Respondent with the Arizona Attorney General’s Office. The complaint alleged that in his position as ATOA’s Treasurer, Respondent, a Sergeant with the Peoria Police Department, failed to release or otherwise misappropriated funds from ATOA’s bank account.

Investigators determined that $55,256.97 in unauthorized transactions, including several large wire transfers into and out of ATOA’s account, were identified between February 2012 and July 2018, during which time Respondent was the only person to access said account. It was also discovered that Respondent used ATOA’s account to make purchases which he obtained $474.88 in reimbursements for from the City of Peoria, and did not reimburse ATOA’s account.

On March 14, 2019, Respondent was arrested on 1 count of Felony Theft in violation of Ariz. Rev. Stat. § 13-1802, 1 count of Felony Fraudulent Schemes/Artifices in violation of Ariz. Rev. Stat. § 13-2310, and 3 counts of Misdemeanor Theft in violation of Ariz. Rev. Stat. § 13-1802.

On September 26, 2019, the Department issued a Fingerprint Clearance Card – Status Notice to Respondent that instructed him to provide a copy of his updated fingerprint clearance card within 10 days from the date of the notice, per Ariz. Rev. Stat. § 32-2108(C). On or about October 25, 2019, the Department’s certified correspondence was returned as “unclaimed –unable to forward.”

On October 03, 2019, Respondent contacted the Department to inquire with whom in DPS he needed to contact to update his fingerprint clearance card. Respondent never provided the Department with his updated fingerprint clearance card.

On February 21, 2020, pursuant to a plea agreement, Respondent was convicted and sentenced to probation. Respondent did not provide the Department with written notice of his conviction within 10 days.

In closing, the Department argued that revocation of Respondent’s license was appropriate because, by and through his actions, Respondent had shown that he was not a person of good moral character. The Department further argued that Respondent had proven himself to be untrustworthy, as he had abused a position of power for several years by wrongfully converted property that did not belong to him, and had also been dishonest during a subsequent investigation into his conduct.

In closing, Respondent acknowledged that licensure from the Department was a privilege. Respondent argued that because he was sentenced at the onset of the global COVID-19 pandemic, his failure to communicate with the Department was unintentional.

CONCLUSIONS OF LAW

Because at all times relevant to this matter Respondent was subject to the provisions of Title 32, Chapter 20, Ariz. Rev. Stat., the Commissioner of the Department has jurisdiction over Respondent and the subject matter in this case.

The case was properly brought before OAH for adjudication pursuant to Title 2, Chapter 19, Article 1, of the Arizona Administrative Code.

Pursuant to Ariz. Rev. Stat. § 41-1092.07(G)(2) and Arizona Administrative Code (“Ariz. Admin. Code”) R2-19-119(B), the Department has the burden of proof in this matter. The standard of proof is 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.” It is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

Ariz. Rev. Stat. § 32-2153(A)(3) provides, in pertinent parts, as follows:

The commissioner may suspend or revoke a license ... issued under this chapter if it appears that the holder or applicant, within five years immediately preceding, in the performance of or attempt to perform any acts authorized by the license or by this chapter, has “[d]isregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner.”

Ariz. Rev. Stat. § 32-2153(B) provides, in pertinent parts, as follows:

The commissioner may suspend or revoke a license ... 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.

* * *

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 legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. Therefore, Department has discretion to revoke a license under Ariz. Rev. Stat. § 32-2153(B) as a real estate salesperson’s license is a privilege, not a right.

The issue in this case, in light of Respondent’s criminal conviction(s) and current probationary status, is whether Respondent can be trusted at this time to be responsible in his dealings with competitors and the public overall if the Department agrees not to revoke his real estate salesperson license.

The definition of what constitutes good character, or a lack thereof, is not codified by the legislature. 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.”

The time period required for a license applicant to establish rehabilitation is commensurate with the period of misconduct and the severity of the offenses.

Here, the material facts are not in dispute.

It is undisputed that although Respondent’s license is currently inactive, it will not expire until October 31, 2020.

It is further undisputed that in February of 2020 Respondent was convicted in a court of competent jurisdiction of Theft, a Class 6 Felony offense, pursuant to Ariz. Rev. Stat. §§ 13-1802(A)(2), 13-1801, 13-702, 13-801, and 13-811(B). The crime, as it relates to licensed real estate transactions, requires a knowing level of unscrupulous practices which are rooted in intentionally deceptive conduct that make business dealings potentially inequitable.

It is further undisputed that the Department may not lawfully renew Respondent’s license because of Respondent’s probationary status. Approximately six months have passed since Respondent’s conviction. Respondent still has thirty months of probation left to serve in his sentence. Moreover, the record is devoid of empirical evidence to support a finding that Respondent has learned from his past mistake(s) and is unlikely to repeat them in the future.

After closely scrutinizing the underlying conduct which resulted in Respondent’s criminal conviction, as well as the conviction itself, this Tribunal holds that the evidence of record establishes by a preponderance of the evidence that the revocation of Respondent’s real estate salesperson’s license is warranted because he poses a significant threat to the public. It is also the position of this Tribunal that Respondent’s criminal conviction evinces his inability to adhere to the law and/or be regulated by the Department at this time. Notably, the Tribunal finds that Respondent’s former position as a law enforcement officer, as it relates to his criminal conviction, is a factor in aggravation.

Pursuant to Ariz. Rev. Stat. §§ 32-2153(A)(3), 32-2153(B)(2), 32-2153(B)(7), and 32-2153(B)(10) the Department has established grounds to take disciplinary action, up to and including revocation, against Respondent’s real estate salesperson’s license.

RECOMMENDED ORDER

Based upon the foregoing,

IT IS RECOMMENDED that upon the effective date of the Final Order entered in this matter the Commissioner of the Department revoke Respondent Jon Paul Meck’s Real Estate Salesperson’s License No. SA681376000.

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.

Done this day, August 14, 2020.

/s Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate