ALJDEC decisions subject to certification as final

21F-024-REL · Department of Real Estate · 2020-10-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

Ryan Keeney,

Holder of License No. SA689724000 (Candidate),

Petitioner.

No. 21F-024-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 1, 2020

APPEARANCES: Petitioner Ryan Keeney appeared on behalf of himself. Assistant Attorney General Lynette Evans appeared on behalf of the Arizona Department of Real Estate.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

1. The Arizona Department of Real Estate (Department) received an application for a real estate salesperson’s license from Petitioner Ryan Keeney.

Mr. Keeney signed the application on June 13, 2020.

2. Mr. Keeney submitted a Disciplinary Actions Disclosure form with the application. Mr. Keeney disclosed that he had been convicted of two misdemeanors.

3. On or about August 7, 2018, Mr. Keeney was convicted of Failing to Comply w/ Court Order, a misdemeanor, in Chandler Municipal Court, for three separate offenses that occurred on: (1) December 23, 2017 (case number 18-P-890445), (2) January 17, 2018 (case number 18-P-890732) and (3) April 11, 2018 (case number 18-P-891141). The court placed Mr. Keeney on two years of monitored probation for all three cases.

4. On or about April 16, 2019, Mr. Keeney was convicted of Failing to Comply w/ Court Order, a misdemeanor, in Chandler Municipal Court, for two separate offenses that occurred on: (1) September 20, 2018 (case number 18-P-892372) and (2) October 21, 2018 (case number 18-P-892315). The court placed Mr. Keeney on three years of monitored probation for both cases.

5. On or about July 27, 2020, the Department issued a notice denying

Mr. Keeney’s application. The July 27, 2020 notice provided, in relevant part, as follows:

The Arizona Department of Real Estate (“the Department”) has reviewed your application for Original Real Estate Salesperson’s license and has determined that you do not meet the qualifications for licensure pursuant to A.R.S. §§ 32-2123, 32-2124 and 32-2153. This conclusion is based in part, but not exclusively, on the following offenses:

1. Failure to comply with Court Order – DV (3 separate Offense Dates: 12/23/17; 01/17/2018 & 04/11/2018), Class 1 Misdemeanors, all on 08/07/2018.

2. Failure to comply With Court Order-DV (Offense Dates: 09/20/2018 and 10/21/2018), Class 1 Misdemeanors on 11/30/2018.

........

6. Mr. Keeney filed a timely appeal to the denial.

7. A hearing was held on October 1, 2020. Mr. Keeney testified on his own behalf, and submitted exhibit A. The Department presented the testimony of Bret Biesenthal, Senior Investigator for the Department, and submitted exhibits 1 through 9.

8. Mr. Keeney argued that his misdemeanor convictions are unrelated to him as a business person and a human being. Mr. Keeney testified that he was charged and convicted with violating a court order because he made a phone call to his x-wife to notify her that his flight from Chicago to Phoenix was delayed. Mr. Keeney stated that the delay was relevant to his parenting time. Mr. Keeney stated that a police officer informed him that he was ordered not to contact his wife due to the domestic violence order. Mr. Keeney also stated that he was charged with forcibly entering his x-wife’s home, but the allegation was false. Mr. Keeney further stated that he was charged with violating a court order because he sent an e-mail to his x-wife regarding a matter that concerned their children. Mr. Keeney stated that currently, he has a strong relationship with x-wife. Mr. Keeney stated that he and his wife co-parent well.

9. Mr. Keeney stated that a prospective employer will not hire him if the employer is required to monitor Mr. Keeney’s practice.

10. The Department’s position was that Mr. Keeney failed to establish by a preponderance of the evidence that he has changed his character. The Department asserted that Mr. Keeney has violated several court orders in the last three years. However, the Department seeks to issue a provisional real estate salesperson’s license to Mr. Keeney under a practice monitor to ensure that Petitioner remains lawful and complies with the Department’s rules.

CONCLUSIONS OF LAW

The Department has jurisdiction to consider Petitioner’s appeal of its denial of his application for a real estate salesperson’s license based on his misdemeanor convictions.

Petitioner bears the burden of proof to establish that he is rehabilitated and that he now 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.”

The legislature established the Department to protect “the public health, safety and welfare by regulating the sale of real estate . . . .” A real estate salesperson’s license is a privilege, not a right. The Department has discretion to grant or deny a license to an applicant under A.R.S. § 32-2153(B).

Petitioner does not dispute that he was convicted of two misdemeanors. Petitioner contended that the misdemeanors are unrelated to real estate practice.

The Department’s concern in this case is legitimate and well-founded.

A person with a criminal record must be given close scrutiny and careful consideration when he applies for a professional license. The concern of the Department is essential and legitimate in light of the Petitioner’s failure to comply with numerous court orders in the last three years. Therefore, cause exists under (B)(7), and (B)(9) for the Department to deny Petitioner’s license application for a salesperson’s license. However, the Department seeks to issue a provisional real estate salesperson’s license to Petitioner.

RECOMMENDED ORDER

Based on the foregoing, IT IS ORDERED that Petitioner Ryan Keeney shall be granted a two year provisional real estate salesperson’s license subject to a practice monitor upon the effective date of the Order entered in this matter.

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-137160-45720000Done this day, October 21, 2020.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

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-137160-45720000