ALJDEC - Licensing

23F-197-REL · Department of Real Estate · 2023-04-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

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

TINA ADAMS, holder of license number SA706195000 (Candidate)

Petitioner

No. 23F-197-REL

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 27, 2023

APPEARANCES: Petitioner Tina Adams appeared on her own behalf. The Arizona Department of Real Estate was represented by Assistant Attorney General Raya Gardner.

ADMINISTRATIVE LAW JUDGE: Adam D. Stone

_____________________________________________________________________

FINDINGS OF FACT

Procedural Background

On or about October 5, 2022, Petitioner filed an application to be licensed as a real estate salesperson with the Department.

On or about October 31, 2022, Petitioner provided the Disciplinary Actions Disclosure Form to the Department. Petitioner answered “yes” to the following question on the application:

Are you currently in a deferred period of judgment or sentencing, in a diversion program, or have you ever been convicted of a Misdemeanor or Felony?

1. Been convicted or entered into a plea agreement or a plea of NOLO CONTENDRE (no contest) to ANY felony – including a Class 6 Undesignated Felony – in Arizona and/or any other state, whether or not the plea or verdict was set aside, sealed, judgment or sentencing was deferred, conviction was dismissed or expunged, or has been pardoned, or the conviction is being appealed? (A.R.S. § 32-2108(C)(3)(a); A.R.S. § 32-2123(B)(4))

On or about December 5, 2022, Petitioner supplied a written personal statement to the Department.

On or about December 9, 2022, the Department informed Petitioner via certified mail that based on her criminal conviction for “Felony Attempted Fraudulent Scheme and Artifice”, it would deny her a real estate salespersons license.

On December 9, 2022, Petitioner requested an informal settlement conference as well as 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 March 27, 2023, an evidentiary hearing was held. Petitioner testified on her own behalf. The Department offered nine exhibits and presented the testimony of its Senior Investigator, Steve Hooper.

Petitioner’s Criminal History

On or about September 12, 2005, a Direct Indictment was issued against Petitioner charger her with Fraudulent Scheme and Artifice and Theft by Control and/or Conversion in case number CR20053723, in Pima County Superior Court.

On or about January 27, 2006, Petitioner entered into a plea agreement for the amended count of Attempted Fraudulent Scheme and Artifice.

On or about March 22, 2006, a Sentence of Probation was entered, whereby Petitioner would be on probation for 5 years commencing March 22, 2006, and pay restitution and fees in the amount of $39,493.32.

On or about April 1, 2014, Petitioner was discharged from probation and all outstanding assessments were reduced to a Criminal Restitution Order.

Additional Hearing Evidence

Petitioner

Petitioner testified that the in 2005, her and her children’s father were in a relationship. Petitioner came to learn that he boyfriend was involved with transporting marijuana, and was robbed. Petitioner testified that the Mexican mafia was threatening to kill her boyfriend and kidnap her children if she did not pay off the debt. Over the course of six months, while she worked at a brokerage firm, she would embezzle money and pay off the debt. Petitioner testified that she voluntarily turned herself in and informed the police what happened.

Petitioner also testified that her probation was extended an extra two years because she had not paid enough towards the restitution amount. She testified further that she is now on a payment plan for $250.00 per month.

In addition, Petitioner testified that she currently owns two businesses, one called LaLa Lash which is operated by one of her daughters, and Omni Liens, a service where she will place a mechanic lien on construction projects. Further, Petitioner testified that she has been involved with many charity organizations.

Finally, Petitioner testified that she has spoken with a broker about possible employment and the possibility of working with that broker under a provisional license.

Steve Hooper

Mr. Hooper testified that he reviewed Petitioner’s application and that the Department decided to deny Petitioner a license due to the felony conviction and the type of crime involved. He testified further, that because real estate agents have access to the public’s private financial information and property, that the public needs to trust the agent with whom they are dealing. Finally, based upon the type of crime Petitioner committed, the fact that there was nothing further in her criminal record since 2005, would not be a basis for granting a 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 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 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.

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 2005 she was involved in this awful experience which led her to pleading guilty. Since her conviction, Petitioner has become a successful business owner, and aside from her failure to remit the full amount of the restitution owed, the tribunal believes that with the payment plan as well as the ability to earn substantial amounts of money from selling properties, the amounts will quickly diminish to zero. Further, Petitioner testified that he has already found a broker who will associate with her and would abide by the terms of a provisional license.

While Petitioner established that she was rehabilitated, the tribunal is concerned too with the type of crime involved. However, with the issuance of a provisional license and additional continuing education, the tribunal believes that the public does not need protection from Petitioner’s past poor decisions.

RECOMMENDED ORDER

Based on the foregoing, IT IS ORDERED that Petitioner Tina Adams shall be granted a provisional real estate salesperson’s license for a minimum of four years.

IT IS FURTHER ORDERED that Petitioner take an additional 4 continuing education courses per year in ethics.

IT IS FURTHER ORDERED that Petitioner provide the Department yearly proof of at least $250.00 per month in restitution payments until the full debt is paid in full.

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, April 7, 2023.

/s/ Adam D. Stone

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Susan Nicolson, Commissioner

Arizona Department of Real Estate

Tina Adams

[email redacted]

Raya Gardner

[email redacted]

By: OAH Staff