ALJDEC

97A-H1923-REL · Department of Real Estate · 1998-01-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 15, 1998 APPEARANCES: The Arizona Department of Real Estate (Complainant) was represented by Assistant Attorney General, Moira McCarthy and Dale Dionne (Respondent) appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant seeks a revocation of Respondent’s real estate salesperson’s license for reasons which are fully explained in the findings below. 2. On or about September 16, 1996, Respondent completed an application for a real estate salesperson’s license. Complainant issued an original real estate salesperson’s license to Respondent on September 24, 1996. The license, at issue herein, expires on September 30, 1998. 3. Evidence of record established that in response to a question on the aforementioned license application regarding any past convictions for “felony, misdemeanor, or other crimes,” Respondent answered “yes.” The application further requested that Respondent provide information on all such criminal convictions. In response thereto, he indicated only that he had been convicted of driving under the influence of intoxicating liquor (D.U.I.). 4. Notwithstanding the fact that Respondent had also been convicted on January 10, 1996, in the State of Arizona, for the crime of assault/domestic violence and threatening, Respondent’s application for a real estate salesperson’s license only revealed the above-described conviction for D.U.I. 5. Respondent contends that he merely “forgot” about the conviction for assault/domestic violence and threatening. Respondent avers that since it came so close together with the D.U.I. conviction he erroneously put the two separate convictions together in his mind. Nevertheless, undisputed evidence of record established that Respondent left a very important detail out of his application and is therefore, found to have submitted a false application for his real estate salesperson’s license. Complainant relied on the veracity of said application in issuing Respondent a real estate salesperson’s license. 6. The Arizona Legislature mandated that persons who undertake real estate transactions on behalf of others meet certain requirements and obtain real estate licensure. The regulatory scheme is designed to protect the public and maintain high standards of professionalism among real estate licensees. The offense of assault/ domestic violence and threatening is deemed to be an egregious offense, giving rise to grave concerns about the advisability of allowing Respondent to maintain a real estate salespersons license. 7. Respondent testified that he had earlier convictions for theft by deception and an expunged conviction for sexual assault. Although these offenses are not involved in the instant complaint, they may be considered as matters in aggravation for any consideration of appropriate disciplinary penalties to be imposed herein.

CONCLUSIONS OF LAW

1. The Commissioner has jurisdiction to decide this matter. 2. Respondent’s failure to indicate, on his application for a real estate salesperson’s license, that he been convicted of the crime of assault/domestic violence and threatening and to provide all necessary details regarding said criminal conviction constitutes a material misrepresentation and a false application, in violation of A.R.S. § 32- 2153B (3) and (1). 3. The actions, conduct and past criminal record of Respondent, as shown herein, support a finding that he is not a person of honesty, truthfulness, and good character within the meaning of A.R.S. § 32-2153B (7). Thus, Respondent violated the provisions of A.R.S. § 32-2153B (7). 4. Respondent’s conviction for assault/domestic violence and threatening is deemed to constitute a serious offense of violence against another person in violation of A.R.S. § 32-2153B (10). 5. Grounds exist under A.R.S. § 32-2153B (10) (7), (3), and (1) to suspend, revoke, deny renewal or the right of renewal of Respondent’s real estate salesperson’s license pursuant to such statute. The evidence of record, as described in the foregoing Findings of Facts, supports a determination that Respondent’s real estate salesperson’s license should be revoked. 6. A.R.S. § 32-2160.01 provides authority for the Commissioner of the Department of Real Estate to assess a civil penalty against Respondent for each violation of statue determined herein.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that Respondent’s real estate salesperson’s license be revoked on the effective date of the Order entered in this matter. In view of the severity of the above-described disciplinary sanction, imposition of a civil penalty does not appear to be warranted and thus, it is further recommended that no civil penalty be imposed against Respondent for the violations described herein.

Done this day, January 23, 1998.

_________________________________ MARK A. SILVER Administrative Law Judge

Original transmitted by mail this ____ day of January, 1998, to:

Mr. Jerry Holt, Commissioner Department of Real Estate ATTN: Bonnie Hollon 2910 North 44th Street, Ste. 100 Phoenix, AZ 85018

By _______________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826