ALJDEC decisions subject to certification as final

21F-189-REL · Department of Real Estate · 2021-04-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

ROGER THOMPSON, holder of License No. SA694283000 (Candidate),

Petitioner

No. 21F-189-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 2, 2021.

APPEARANCES: Roger Thompson (“Petitioner”) appeared via Google Meet on his own behalf; the Arizona Department of Real Estate (“the Department”) was represented by Holly Wan, Esq., Assistant Attorney General, who also appeared via Google Meet.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Procedural Background

On or about January 14, 2021, Petitioner filed an application to be licensed as a real estate salesperson with the Department. Petitioner answered “yes” to the following question on the application:

Has the Applicant . . .

13. Been convicted or entered into a plea agreement or a plea of NOLO CONTENDRE (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?

Petitioner attached to his application for a real estate salesperson’s license a Criminal Offense Disclosure Statement.

On January 25, 2021, the Department informed Petitioner via certified mail that based on his criminal convictions, it would offer a provisional real estate salespersons license.

On February 3, 2021, Petitioner requested an informal settlement conference as well as a hearing on the Department’s denial of his application for a real estate salesperson’s license.

The Department referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

On April 2, 2021, an evidentiary hearing was held via Google Meet. Petitioner offered eight exhibits into evidence and testified on his own behalf. The Department also offered eight exhibits and presented the testimony of its Senior Investigator, Bret Biesenthal.

Petitioner’s Criminal History

On October 21, 2013, Petitioner was convicted pursuant to his guilty plea in the Maricopa County Superior Court Case No. CR2012-134123-001 for the offense aggravated harassment. As a result, Petitioner was sentenced to two years’ probation.

On April 27, 2015, Petitioner was discharged from probation in Maricopa County Superior Court Case No. CR2012-134123-001 and the undesignated felony was re-designated as a misdemeanor effective June 30, 2015.

Additional Hearing Evidence

Petitioner

Petitioner testified that the criminal offenses happened pursuant to a neighbor dispute when he violated an Injunction Against Harassment in 2012. Petitioner further testified that at the time the violation occurred he was abusing substances, but now was sober.

Petitioner testified that he was 63 years old and has done tremendous things to turn his life around in the nine plus years since the events leading up to his conviction. He testified that he acknowledged his mistakes and that he would not have granted himself a license eight years ago.

Petitioner testified that he graduated from Arizona State University in May 2017 with a 3.74 grade point average, and passed a background check while he was employed with the United States Postal Service in Indiana in 2019.

Petitioner also testified that was awarded a Certificate of Training for Merit Badge Counselor in May 2018, and obtained a substitute teacher certificate from the Arizona Department of Education in March 2020.

Petitioner testified further that he was active in community service and was awarded two grants for his efforts. The first was for a free transport service for addicts in recovery, and the seconds was for “SIRF”, a program to help combat food waste and child hunger.

Finally, Petitioner testified that he has a job waiting for him with Keller-Williams, where he will be working under the supervision of his cousin.

Bret Biesenthal

Mr. Biesenthal testified that he reviewed Petitioner’s application and that the Department decided to grant Petitioner a provisional license for two years due to the concerns about the repetitive natures of the violation, and to ensure that Petitioner will follow the rules of real estate regulation.

Mr. Biesenthal testified that the Department believed that Petitioner through his actions had not shown that he was a person of honesty, truthfulness and good character per A.R.S. § 32-2153(B)(7), and because he violated the terms of the Injunction Against Harassment Petitioner was also in violation of § 32-2153(B)(9).

Mr. Biesenthal testified that a provisional license would require Petitioner to work with a practice monitor to guide him through the process and would also require Petitioner to make quarterly disclosures.

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 history of criminal 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). The issue is whether in light of Petitioner’s past mistakes and the efforts that he has made to rectify those past mistakes, Petitioner at this time is rehabilitated and can be trusted to be responsible and forthright in his dealings with his clients and members of the public if the Department grants his application for a real estate salesperson’s license.

The issue of what constitutes good character or a lack thereof is nebulous at best. 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, having heard and seen the applicant . . . , a judgment of which it may be said as it was of "many honest and sensible judgments" in a different context that it expresses "an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions; impressions which may lie beneath consciousness without losing their worth." . . .

Once good character is shown to be absent, it is not automatically regained by the mere passage of time. Positive and affirmative activities are required for a person to regain what was lost.

The time period required for a license applicant to establish rehabilitation is commensurate with the period of misconduct and the severity of the offenses. Petitioner does not dispute that in 2012 he was involved in a neighbor dispute, and that he violated an Injunction Against Harassment. Petitioner also does not dispute that he was suffering from substance abuse at that time. Petitioner testified credibly that he had turned his life around and at age 63, this was his “last go around”. Since his conviction, Petitioner became sober, he was granted early termination of probation, obtained his undergraduate degree, performed substantial community service, has passed numerous background checks and obtained a substitute teaching certificate. Further, Petitioner testified that he has already found employment and will be supervised by his cousin.

Petitioner has established that he was rehabilitated and that the public does not need protection from Petitioner’s past poor decisions that resulted from his admitted substance abuse over nine years ago.

RECOMMENDED ORDER

Based on the foregoing, IT IS ORDERED that Petitioner Roger Thompson shall be granted a real estate salesperson’s license.

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 will be five days from the date of that certification.

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-137160-45720000Done this day, April 13, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

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