ALJDEC decisions subject to certification as final

22F-034-REL · Department of Real Estate · 2021-11-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of the Real Estate License of:

HARRIS, TAJANE, holder of License No. SA696660000,

Respondent

No. 22F-034-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 27, 2021

APPEARANCES: Tajane Harris (“Petitioner”) appeared on her own behalf. Assistant Attorney General James Rolstead represented the Arizona Department of Real Estate (“Department”).

ADMINISTRATIVE LAW JUDGE: Kay Abramsohn

_____________________________________________________________________

FINDINGS OF FACT

On or about May 10, 2021, Petitioner submitted to the Department a Salesperson Application Form (“Application”) to be licensed in Arizona as a real estate salesperson.

On that Application, Petitioner answered “NO” to Question #13, regarding convictions or plea agreements to any misdemeanor in Arizona or any other state.

Question #13 asks the following question:

Have you been convicted and/or entered into a plea agreement 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 expunges, or has been pardoned, or the conviction is being appealed? CONVICTIONS – DUI AND/OR RECKLESS DRIVING, EITHER MISDEMEANOR OR FELONY, MUST BE DISCLOSED. Minor traffic citations do not constitute a misdemeanor or felony offense.

Despite responding “NO” to Question 13 on the application, Petitioner further supplied information regarding a May 2017 “Traffic Ticket,” which she indicated had been mailed to the Department.

On May 20, 2021, the Department issued Real Estate Salesperson License No. SA696660000 to Petitioner; the licensure is set to expire on May 31, 2023.

By letter/email dated June 8, 2021, the Department requested additional information from Petitioner, indicating among other things, that she had failed to disclose a criminal conviction and had not provided a statement as to those circumstances.

On June 9, 2021, Petitioner responded with queries about the request, indicating that, to her knowledge, she only had a traffic ticket five years earlier and that she had provided all of that information to the Department.

On July 20, 2021, the Department received Petitioner’s letter of explanation regarding the circumstances. Petitioner explained that, when she was 18 years of age, she had been stopped [September 2, 2016] for speeding and given a ticket for which she made a court appearance but for which she had been unable to get to the Ironwood Justice Court [Gila Bend, Arizona] for an arraignment appearance. Petitioner indicated that she simply had not understood that the end result of the matter was that she had been convicted of a misdemeanor because, to her mind, she had been given a traffic ticket.

As a result of her failure to appear, an arrest warrant was issued after which she was subsequently arrested and spent 4 days in Phoenix jail until her appearance for Ironwood. On January 17, 2017, Petitioner appeared and pleaded guilty to the driving infraction; the failure to appear fine was suspended and she was given a fine for driving infraction plus other costs. Collections action was instituted on the fines and, after an appearance on May 14, 2017, Petitioner was given 4 days with time served and, as of June 27, 2017, the Collections actions were suspended. The last payment indicated in the case record was on January 4, 2018.

On September 8, 2021, the Department issued its Notice of Hearing and Complaint alleging a violation by Petitioner of A.R.S. § 32-2153(B)(1), and indicating its proposal to impose a civil penalty in the amount of $1,000.00.

At hearing, the Department’s position was that the information on the Application was misleading and that Petitioner had not sufficiently disclosed the misdemeanor conviction. At hearing, the Department expressed no doubt as to the credibility of Petitioner’s testimony. The Department argued that it has a responsibility to the public with regard to appropriately licensing salespersons and that the civil penalty sought to be imposed was within a range up to the noticed $1,000.00.

At hearing, Petitioner credibly expressed those past circumstances and her true efforts to have responded in full and disclosed even the “traffic ticket” she had received. Petitioner acknowledged that, now at age of 24, she understood the true nature of what the circumstances had been and she requested to be treated fairly because she had not had any intention to give incorrect or incomplete information on the Application.

The Administrative Law Judge found Petitioner to be credible as she testified and as she recounted those past circumstances and her youthful unknowing misstatement on Question #13.

CONCLUSIONS OF LAW

The Department bears the responsibility to protect the public through its enforcement of licensing statutes. This matter lies within its jurisdiction.

Petitioner bears the burden of proof and must establish that she 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.”

A.R.S. § 28-701.02(A)(3) sets forth a driving violation of speeding in excess of the posted speed limit by more than twenty miles per hour.

A.R.S. § 28-701.02(B) indicates that a person who violates A.R.S. § 28-701.02(A) [which includes subsections (1), (2), and (3)] is guilty of a Class 3 misdemeanor.

A.R.S. § 32-2153 provides in relevant part as follows:

B. The commissioner may suspend or revoke a license, deny the issuance of a license, issue a letter of concern to a licensee, issue a provisional license or deny the renewal or the right of renewal of a license issued under this chapter when it appears that the holder or applicant has:

1. Procured or attempted to procure a license under this chapter for the holder or applicant or another by fraud, misrepresentation or deceit, or by filing an original or renewal application which is false or misleading.

The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. The Department’s concern in this case is understandable. A person with a criminal record must be given close scrutiny and careful consideration when he or she applies for a professional license.

The hearing record demonstrated that Petitioner was convicted of a misdemeanor in 2017 and that such conviction was inaccurately disclosed on the Application. However, Petitioner’s credible testimony demonstrated that those circumstances were youthful misunderstanding both of the process and of its outcome which preceded this situation on the Application. The hearing record demonstrates no fraud, misrepresentation, or deceit by Petitioner in completing her Application. The hearing record demonstrates that, to her knowledge, the information on Petitioner’s Application was not false. The Administrative Law Judge concludes that the information Petitioner provided was simply inaccurate and was not intentionally misleading.

While past convictions are an important consideration for the Department, in this instance, having no other convictions and based on her testimony, Petitioner has demonstrated she understands the outcome of those 2016 and 2017 circumstances and that she has resolved her past. The Administrative Law Judge concludes that Petitioner has demonstrated that a lesser penalty would serve as an appropriate civil penalty in this matter.

RECOMMENDED ORDER

The Commissioner shall impose a civil penalty in the amount of $200.00, thereby partially granting Petitioner’s appeal.

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, November 16, 2021.

/s/ Kay Abramsohn

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate