ALJDEC decisions subject to certification as final

21F-266-REL · Department of Real Estate · 2021-07-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

DARREN WEBSTER, holder of License No. SA695157000 (Candidate),

Petitioner

No. 21F-266-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 15, 2021

APPEARANCES: Darren Webster (“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

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FINDINGS OF FACT

Procedural Background

On or about March 29, 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 April 14, 2021, the Department informed Petitioner via certified mail that based on his criminal convictions, it would offer a provisional real estate salespersons license.

On April 19, 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 June 15, 2021, an evidentiary hearing was held via Google Meet. Petitioner offered one exhibit 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 or about July 30, 2010, Petitioner was convicted pursuant to his guilty plea in the State of Vermont Superior Court Docket Number 369-3-10 Wncr for the offense of Driving Under the Influence. As a result, Petitioner was ordered to pay a fine of $646.00.

On June 13, 2011, Petitioner was convicted pursuant to his guilty plea in the Pinal County Superior Court Docket Number S1100CR201100868 for the offense of Assault. On March 6, 2014, the Pinal County Superior Court set aside that judgment.

Additional Hearing Evidence

Petitioner

Petitioner testified that when he drove under the influence, it was when he was back in Vermont for his maternal grandfather’s funeral. He testified that now he may drink one to two times per year and does not have more than one or two drinks.

Petitioner testified as to the events surrounding the assault conviction. Petitioner testified that while he was employed as an Officer for the Arizona Department of Corrections, he was involved in a “take-down” incident with an inmate who was being unruly. Unfortunately, the inmate sustained a significant injury, and the Department of Corrections determined that Petitioner used excessive force.

Petitioner further testified that he was previously licensed through the State of Arizona for a Health and Life Insurance Producer and still has a CCW permit through the State, and these incidents had not been a bar to those licenses, so it should not be for this license.

Finally, Petitioner testified that believed that he qualified for an unrestricted license as he was a person of honesty, truthfulness and good character. He testified that he has was a business owner of Lifesavers, LLC, a company involved with sealing off solar panel wiring. Further, he emphasized that he had been open and honest with the Department regarding his criminal history.

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 convictions, 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).

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 2010 he was convicted of a DUI while in Vermont for his grandfather’s funeral. Petitioner also does not dispute the conviction, which was set aside, from the incident during his time at the Department of Corrections. Petitioner testified credibly about his current alcohol consumption, and hopefully will not be in a position to repeat what happened while he was working in a prison. Further, Petitioner displayed truthfulness and honesty in the full and complete disclosure of these items in his application.

As to good character, this Tribunal understands the Department’s concerns with Petitioner’s past actions and the need to protect the public. The Tribunal believes that the incident at the Department of Corrections should not hinder Petitioner obtaining a license as it was set aside for one, and two, it was such a unique situation that it will not be repeated by Petitioner. As to the DUI, the Tribunal finds that this happened over 11 years ago, and finds Petitioner’s testimony credible that he does not drink alcohol but one or twice per year and there have been no further traffic stops or convictions for driving under the influence.

Petitioner has established that he was rehabilitated and that the public does not need protection from Petitioner’s past.

RECOMMENDED ORDER

Based on the foregoing, IT IS ORDERED that Petitioner Darren Webster 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, July 1, 2021.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate

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-137160-45720000