ALJDEC decisions subject to certification as final

22F-252-REL · Department of Real Estate · 2022-04-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

LILLIAN MARY SHINE, License No. SA699133000 (Candidate),

Petitioner

No. 22F-252-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 12, 2022

APPEARANCES: Lillian Mary Shine (“Petitioner”) appeared on her 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

On or about January 10, 2022, Petitioner filed an application to be licensed as a real estate salesperson with the Department. Petitioner answered “yes” to the following questions on the application:

Has the Applicant . . .

Had a profession or occupational license or registration in any state, of ANY kind, denied, suspended, restricted, or revoked?

Had/Have an administrative order and/or ANY other disciplinary action taken against ANY license issued to them by any local, state, or federal regulatory agency including the Arizona Department of Real Estate?

...

Voluntarily surrendered ANY professional or occupational license during the course of an investigation or disciplinary proceeding?

Entered into ANY consent decree, and/or had an injunction (either temporary or permanent), a suspension, an order and/or a judgment issued which prohibited or restricted them from engaging in ANY profession or occupation?

...

Had any judgment and/or ordered entered against them by ANY court arising out of the conduct of any business in real estate, cemetery property, timeshare intervals, or membership campgrounds?

Petitioner attached to her application for a real estate salesperson’s license a statement regarding the surrender of her license.

On January 20, 2022, the Department informed Petitioner via certified mail that her request for a real estate salespersons license was denied based in part on her eight judgments in California.

On February 11, 2022, Petitioner requested a hearing on the Department’s denial of her 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 12, 2022, an evidentiary hearing was held. Petitioner testified on her own behalf. The Department offered nine exhibits and presented the testimony of its Senior Investigator, Linda Bevins.

Petitioner testified that she was first licensed in California as a salesperson in 1977, and as a real estate broker in 1996.

Petitioner testified that in 2010, she brought an agent in to work with her. In 2014, the agent and Petitioner decided to part ways, and the agent decided to take her clients with her. At some point thereafter, the agent’s clients brought suit against Petitioner, accusing her that she did not return their proceeds and security deposits. She testified further that she eventually settled with the parties and fully paid all judgments with interest and court costs.

In addition, Petitioner testified that she chose to voluntarily surrender her license rather than go through the time and expense of an investigation and disciplinary proceedings with the California Bureau of Real Estate.

Regarding her request for reinstatement, Petitioner testified that she completed all of the required continuing education requirements. Further, she disagreed with California’s Order Denying Reinstatement, stating that it was impossible for her to demonstrate her rehabilitation while she was on a suspended license.

Petitioner also testified that he is content with her restricted California license and does not plan to apply for an unrestricted license.

Finally, Petitioner testified that she moved to Arizona and passed her real estate exam, and was disappointed that she was not granted at least a provisional license. She also testified that she has a broker she is prepared to work with, should a license be granted.

Ms. Bevins testified that she reviewed Petitioner’s application and ultimately the Department declined to grant Petitioner a license.

Ms. Bevins also testified as to the eight judgments against Petitioner and noted that they were all paid and reviewed all of the satisfactions of judgment.

Ms. Bevins testified that the Department was concerned because California found Petitioner violated its licensing laws which were sufficient enough for loss or surrender of the license.

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 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.”

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 she has made to rectify those past mistakes, Petitioner at this time is rehabilitated and can be trusted to be responsible and forthright in her dealings with her clients and members of the public if the Department grants her application for a real estate salesperson’s license.

Petitioner did not dispute the issues with her former clients and the judgments that resulted therefrom. She testified that all judgments had been satisfied and had complied with the California order and completed 45 continuing education credits. Further, Petitioner had been working with a restricted license since July 2020 without further incident. Finally, Petitioner testified that she would accept a restricted license in Arizona and has a broker that is ready to employ her and can assist her if need be. Therefore, Petitioner has established that she was rehabilitated

RECOMMENDED ORDER

Based on the foregoing, IT IS ORDERED that Petitioner Lillian Mary Shine shall be granted a provisional real estate salesperson’s license for a period of at least two years. Further, Petitioner is also ordered to take at least 10 continuing education credits, at least half of which shall be ethics, in addition to the usual requirements for continuing education.

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 26, 2022.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted electronically to:

Louis Dettorre, Commissioner

Arizona Department of Real Estate

By Miranda Alvarez

Legal Secretary

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-137160-45720000