ALJDEC - Licensing

23F-059-REL · Department of Real Estate · 2023-02-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Keeler, Harvey Patrick,

holder of license number SA704246000 (Candidate)

Petitioner.

No. 23F-059-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 2, 2023

APPEARANCES: Petitioner Harvey Patrick Keeler (Mr. Keeler or Petitioner) appeared on behalf of himself. Assistant Attorney General Raya Gardner appeared on behalf of the Arizona Department of Real Estate.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

1. On or about January 11, 2006, Petitioner pleaded guilty to Count 12: WIRE FRAUD, a Class C Felony committed between August 2001 and July 2002, County 50: CONSPIRACY TO COMMIT LOAN FRAUD, a Class D Felony committed between March 8, 2000 and June 18, 2002, and Count 71: FAILURE TO PAY TAXES, a Class D Felony committed on January 31, 2002. See Exhibit 3.

2. On April 24, 2006, the court sentenced Mr. Keeler to a term of 96 months in prison. Upon release from prison, Mr. Keeler was placed on three years of probation and ordered to pay $365,334.33 in restitution and a $25,000 fine. See Exhibit 3.

3. Mr. Keeler’s probation terminated on January 13, 2014. See Exhibit 5.

4. On or about August 10, 2022, Mr. Keeler submitted an application for a real estate salesperson’s license (application) with the Arizona Department of Real Estate (Department). See Exhibit 1.

5. On August 15, 2022, the Department issued to Mr. Keeler an Intent to Deny his application because the Department determined that Mr. Keeler did not meet the qualifications for licensure pursuant to Arizona Revised Statutes (A.R.S.) §§ 32-2123, 32-2124, and 32-2153. See Exhibit 6. The Department further notified Mr. Keeler, “This conclusion is based in part, but not exclusively, on your convictions of Wire Fraud, Conspiracy to Commit Loan Fraud and Failure to Pay Taxes.” See id.

6. Mr. Keeler timely filed a request for hearing regarding the denial.

7. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

8. A hearing was held on February 2, 2023.

9. At hearing, Mr. Keeler testified on behalf of himself. The Department presented the testimony of Senior Investigator Steve Hooper, and submitted exhibits 1 through 7.

10. Mr. Keeler contended that he is a changed man who deserves a second chance. When asked on cross-examination the amount of restitution that Mr. Keeler had paid to the court,

Mr. Keeler could not recall.

11. The Department’s position is that Petitioner should be denied a real estate salesperson’s license due to the number and nature of his criminal convictions. The Department argued that grounds exist to deny Petitioner’s original application for a real estate broker’s license under A.R.S. §§ 32-2153(B)(2),(B)(5), and (B)(9).

CONCLUSIONS OF LAW

The Commissioner has jurisdiction over the subject matter in this case.

Pursuant to A.R.S. § 41-1092.07(G)(2) and A.A.C. R2-19-119(B),

Petitioner has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119(A).

A preponderance of the evidence is “such proof as convinces the trier of

fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). It is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990).

4. A.R.S. § 32-2153 provides 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 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.

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5. Been guilty of any conduct, whether of the same or a different character than specified in this section, that constitutes fraud or dishonest dealings.

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9. Violated any federal or state law, regulation or rule that relates to real estate or securities or that involves forgery, theft, extortion, fraud, substantial misrepresentation, dishonest dealings or violence against another person or failure to deal fairly with any party to a transaction that materially and adversely affected the transaction. This paragraph applies equally to violations of which the licensee was convicted in any lawful federal or state tribunal and to any admissions made in any settlement agreement by the licensee to violations.

* * *

5. Petitioner contended that he is a changed person who deserves a second

chance.

6. However, the uncontested evidence established that Petitioner was

convicted of Wire Fraud, Conspiracy to Commit Loan Fraud, and Failure to Pay Taxes, which are violations of A.R.S. §§ 32-2153(B)(2), (B)(5), and (B)(9).

7. The Department’s concern in this case is legitimate and well-founded in light of the Petitioner’s past felony convictions for wire fraud, loan fraud, and failure to pay taxes.

8. A person with a criminal record must be given close scrutiny and careful consideration when he applies for a professional license.

9. The legislature has charged the Department with protecting the public and consumers who deal with licensed salespersons when it issues licenses. It would not fulfill that statutory mandate by licensing Petitioner as a real estate salesperson at this time.

10. The Administrative Law Judge concludes that grounds exist to deny Petitioner’s application for a real estate salesperson’s license pursuant to A.R.S. §§ 32-2153(B)(2), (B)(5), and (B)(9).

11. Considering the evidence and legal authority presented, this Tribunal concludes that Petitioner’s application for licensure should be denied.

RECOMMENDED ORDER

Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends to the Arizona Department of Real Estate Commissioner to affirm the Department’s August 15, 2022 Intent to Deny Application for a real estate salesperson’s license.

Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.

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 forty (40) days from the date of that certification.

Done this day, February 20, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

James Knupp, Acting Commissioner

Arizona Department of Real Estate

Lynette Evans, Esq.

Office of the Attorney General

Public Law Section

2005 N. Central Ave.,

Phoenix, Arizona 85004-1592

[email redacted]

Susan Nicolson

Arizona Department of Real Estate

100 N. 15th Avenue, Suite 201

Phoenix, Arizona 85007

Attn:

[email redacted]

Harvey Patrick Keeler

1909 E. Ray Rd

Chandler, AZ 8522

[email redacted]

By: OAH Staff