ALJDEC decisions subject to certification as final

21F-320-REL · Department of Real Estate · 2021-09-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

USRY, JULIA, License No. UL583729000 (Unlicensed),

Petitioner.

No. 21F-320-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: August 30, 2021 at 1:00 PM.

APPEARANCES: Julia Usry (“Petitioner”) appeared on her own behalf with Nasim Silva as a witness. Assistant Attorney General James Rolestead, Esq. appeared on behalf of the Arizona Department of Real Estate (“Department”) with Steven Hooper as a witness.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

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 May 11, 2011, before the Seventh Judicial District Court of the State of Nevada, in and for the County of Eureka, Petitioner was sentenced to 48-months in prison for violation of Nev. Rev. Stat. § 200.47(2)(b), Assault with a Deadly Weapon, a Category B Felony, pursuant to a guilty plea. Petitioner was ordered to pay $175.00 in fines, attend regular Alcoholics Anonymous meetings, and prohibited use or possession of alcoholic beverages. On February 22, 2013, Petitioner was honorably discharged from parole.

On July 15, 2009, before the Globe Regional Justice Court of the State of Arizona, Gila County, Petitioner was sentenced to 90-days in jail, 1 year of unsupervised probation, and assessed $5,770.00 in related fines for violations of Ariz. Rev. Stat. §§ 28-1381(A)(1), 28-1381(K), 13-707, 13-802, 13-901, 16-954, 12-114.01, 12-116, 12-116.01, and 12-116.02, Driving Under the Influence – 2nd Offense, a class 1 misdemeanor, pursuant to a guilty plea.

On June 05, 2009, before the Globe Regional Justice Court of the State of Arizona, Gila County, Petitioner was sentenced to 30-days in jail, 1 year of unsupervised probation, and assessed an unknown amount in related fines for violations of Ariz. Rev. Stat. §§ 28-1381(A)(1), 13-707, 13-802, 13-901, 16-954, 12-114.01, 12-116, 12-116.01, and 12-116.02, Driving Under the Influence, a class 1 misdemeanor, pursuant to a guilty plea.

On December 14, 2006, before the Circuit Court of Teton County Wyoming, Petitioner was sentenced to 6 months in county jail, 2 years of unsupervised probation, and assessed $630.00 in related fines, for violation of W.S. § 31-5-233, Driving Under the Influence, a misdemeanor, pursuant to guilty plea. Petitioner was prohibited consume or possess alcoholic beverages.

On November 15, 2004, before the Circuit Court of Teton County Wyoming, Petitioner was sentenced to 6-months in county jail for violation of W.S. § 31-5-233, Driving Under the Influence, a misdemeanor, and 35-days in county jail for violation of W.S. § 6-2-501(e)(2), Domestic Battery, a misdemeanor, pursuant to guilty plea. Petitioner was assessed $760.00 in related fines.

On April 26, 2001, before Pima County Consolidated Justice Court, City of Tucson, for the State of Arizona, Petitioner was sentenced to a 28-day inpatient substance abuse program, 1 year of unsupervised probation, and assessed $1,500.00 in related fines, for violation of Ariz. Rev. Stat. § 13-1203.1, Domestic Violence Assault – Knowingly Causing Injury, a class 1 misdemeanor, pursuant to a guilty plea. Petitioner was also ordered to participate in 16 sessions of domestic violence counseling.

On February 23, 2021, the Department received an application to be licensed as a real estate salesperson from Petitioner.

On the Disciplinary Actions Disclosure portion of the application, Petitioner answered “Yes” to questions #12 and #13, which ask:

12) Has the applicant been convicted and/or entered into a plea agreement and/or a plea of NOLO CONTENDERE (no contest) to ANY felony in Arizona and/or any other state, whether or not the plea or verdict was set aside, judgment or sentencing was deferred, conviction was dismissed or expunged, or had been pardoned?

13) Has the applicant been convicted or entered into a plea agreement or a plea of NOLO CONTENDERE (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 had been pardoned?

CONVICTIONS – DUI AND/OR RECKLESS DRIVING, EITHER MISDEMEANOR OR FELONY, MUST BE DISCLOSED.

Minor traffic citations do not constitute a misdemeanor or felony offense.

(Emphasis in original.)

On June 04, 2021, the Department mailed Petitioner notification of its intent to deny her application based on alleged violations of Ariz. Rev. Stat. §§ 32-2153(A)(3), (B)(7), and (B)(10).

On July 01, 2021, the Department received Petitioner’s timely appeal whereby Petitioner argued, in pertinent parts, that her prior crimes occurred over 10 years prior, were all alcohol related, and that she had been sober for the past 10 years. Petitioner opined that because she had been licensed by other state agencies since her last conviction (e.g. a fingerprint clearance card and insurance broker’s license), she should not be barred from receipt of a real estate salesperson license by the Department.

The Department referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing to determine whether grounds exist for the Department to deny Petitioner’s original application for a Real Estate Salesperson’s License pursuant to Ariz. Rev. Stat. §§ 32-2153(B)(2) and (B)(7).

On July 14, 2021, the Department issued a Notice of Hearing which scheduled a hearing for August 30, 2021, at 1:00 p.m.

Hearing Evidence

The Department submitted Exhibits 1-18 and presented the testimony of investigator Steven Hooper (“Investigator Hooper”). Petitioner submitted Exhibits A-I, testified on her own behalf, and called her former employer and fiancé Nasim Silva as a witness. The pertinent facts are as follows:

Petitioner previously applied for a Real Estate Broker’s License from the Department in 2016. At that time Petitioner had been asked to consent to random drug and alcohol screening in order to be granted licensure. Petitioner declined and did not appeal.

Petitioner did not deny any of the Department’s factual allegations or alleged statutory violations. Instead, Petitioner testified that she sought provisional licensure. Per Petitioner, she has been sober and actively participating in “12-step meetings” for the past 10 years. During that time Petitioner has been issued resident producer licenses by the Nevada Department of Business and Industry’s Division of Insurance and the Arizona Department of Insurance. Both licenses are expired. Petitioner has also been issued a fingerprint clearance card by the Arizona Department of Public Safety.

Although Petitioner provided a number of character references from friends, family members, and professional acquaintances, Petitioner admitted that she had not been given a written offer from a licensee in good standing to act as a practice monitor on her behalf.

In closing, Petitioner beseeched the Tribunal for an opportunity to obtain a provisional license, noting that she served all of the time required under her criminal sentences and paid all of the fines associated with said crimes. Petitioner emphatically pledged to submit and pay for any testing required by the Department.

In closing, the Department argued that it had declined to issue a Real Estate Salesperson’s License to Petitioner due to its belief that Petitioner is currently unable to be completely regulated by the Department. The Department noted that the record established a lengthy record of multiple alcohol-related crimes, but did not reflect a documented history of rehabilitation. The Department opined that its duty to protect the public outweighed Petitioner’s desire to obtain licensure.

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 the Office of Administrative Hearings for adjudication pursuant to Title 2, Chapter 19, Article 1, of the Ariz. Admin. Code.

Petitioner bears the burden of proof to establish that she is rehabilitated and qualified to receive an insurance license. The standard of proof on all issues in this matter is that of a preponderance of the evidence.

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.

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

The commissioner may deny the issuance of a license under this chapter if 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.

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 deny the issuance of 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 is whether grounds exist for the Department to deny Petitioner’s application for a Real Estate Salesperson’s License given Petitioner’s criminal history and underlying related conduct. The crux being whether Petitioner has established that she can be trusted at this time to be responsible in her dealings with competitors and the public overall if the Department grants her request.

The material facts in this matter are not in dispute.

Pursuant to the above-captioned statute(s), the Commissioner of the Department is entitled to deny licensure to any applicant that has been lawfully convicted of a felony offense. The credible evidence of record establishes that just under 10 years ago Petitioner was convicted of a felony involving a crime of moral turpitude by a court of competent jurisdiction, in violation of Ariz. Rev. Stat. § 32-2153(B)(2).

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.” However, because the record also illustrates Petitioner’s willingness downplay the extent of her addiction to alcohol and all of the criminal convictions stemming therefrom, pursuant to guilty pleas or otherwise, a violation of Ariz. Rev. Stat. § 32-2153(B)(7) has also been established.

The time period required for a license applicant to establish rehabilitation is commensurate with the period of misconduct and the severity of the offenses. After closely scrutinizing the underlying conduct which resulted in Petitioner’s criminal convictions, as well as the convictions themselves, the question as to whether Petitioner can be regulated at this time remains unclear. Because the record is devoid of any evidence that a licensee in good standing would be willing to act as a practice monitor for Petitioner, the undersigned must uphold the Department’s intent to deny Petitioner’s request for licensure.

While the tribunal applauds Petitioner for attempting to secure gainful employment in the field of real estate, Petitioner provided no binding authority or statute under which the tribunal or Department would be bound to accept and approve her application for licensure.

Therefore, based on the relevant and credible evidence in the record, the undersigned Administrative Law Judge holds that Petitioner has not sustained her burden of proof in this matter by a preponderance of the evidence. As such, her appeal must be denied.

RECOMMENDED ORDER

Based upon the foregoing,

IT IS RECOMMENDED that Petitioner’s appeal be denied.

IT IS FURTHER RECOMMENDED that the Commissioner affirm the Department’s determination to deny Petitioner’s application for a Real Estate Salesperson License pursuant to Ariz. Rev. Stat. § 32-2153(B).

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 (5) days from the date of that certification.

Done this day, September 20, 2021.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Judy Lowe, Commissioner

Arizona Department of Real Estate