ALJDEC

98A-H1928-REL · Department of Real Estate · 1998-07-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On July 30, 1998, a hearing was held to determine if the Respondent had violated provisions of A.R.S. §32-2153(B). Assistant Attorney General Moira McCarthy appeared on behalf of the Arizona Department of Real Estate (the “Department”). Aaron Dean McCulloch (the “Respondent”) appeared on his own behalf. Evidence and testimony were presented. Based upon a review of the entire record, the following Findings of Fact, Conclusions of Law and Recommended Decision are made.

FINDINGS OF FACT

1. On or about September 11, 1996, the Department issued a real estate salesperson license (the “License”) to the Respondent. The License will expire September 30, 1998. See State’s Exhibit I.

2. On or about May 7, 1997, a police report (the “Report”) was prepared concerning a domestic dispute between the Respondent and his wife, Carolyn McCulloch. The McCullochs are now divorced. The Report states that the Respondent was arrested because he pushed his wife during a heated argument. The Report further states that Carolyn McCulloch fell and fractured her scapula. See State’s Exhibits F & J.

3. On or about July 29, 1997, a Complaint was filed against the Respondent in the Central Phoenix Justice Court charging the Respondent with Aggravated Assault, a Class 4 Felony. See State’s Exhibit A.

4. On or about August 13, 1997, an Information was filed in State of Arizona vs. Aaron McCulloch, Maricopa County Superior Court, No. CR97- 08798, charging the Respondent with Aggravated Assault, a Class 4 Felony. The Information alleged that on or about May 7, 1997, the Respondent intentionally, knowingly or recklessly caused

injury to Carolyn McCulloch, in violation of A.R.S. §§13-1204(A)(11), (B), 13-1203(A)(1), 13-701, 13-702 and 13-801. See State’s Exhibit B.

5. On or about December 15, 1997, the Respondent pleaded guilty to Attempted Aggravated Assault, a Class 5 Felony, in violation of A.R.S. §§13- 1001, 13-1204(A)(11), (B), 13-1203(A)(1), 13-701, 13-702 and 13-801. See State’s Exhibit D.

6. On or about January 23, 1998, the Court entered Judgment finding the Respondent guilty of the crime of Attempted Aggravated Assault, a Class 5 Felony. The court sentenced the Respondent to sixty days in the Maricopa County Jail. This sentence was suspended and the Respondent was placed on three years of supervised probation. As conditions of his probation, the Respondent was ordered to (1) complete 100 hours of community service; (2) pay restitution in the amount of $715.36; (3) pay a $40.00 monthly probation service fee; and (4) continue domestic violence counseling. See State’s Exhibit E.

7. On or about February 5, 1998, the Respondent informed the Department in writing that he had pleaded guilty to Attempted Aggravated Assault. See State’s Exhibit H.

8. At the hearing scheduled for July 30, 1998, the Respondent testified that he now regrets that he entered into a plea agreement instead of going to trial. The Respondent testified that his wife actually fractured her scapula when she slipped during a fight with her daughter. It is unclear and rather incredulous to the undersigned Administrative Law Judge as to why the Respondent would enter into a plea agreement and submit himself to domestic violence counseling if he never actually attempted to assault Carolyn McCulloch.

9. The undersigned Administrative Law Judge finds that the Respondent violated a state law involving violence against another person. The undersigned Administrative Law Judge further finds that the Respondent has been convicted in a court of competent jurisdiction of Attempted Aggravated Assault, a Class 5 Felony. The undersigned Administrative Law Judge also finds that the Respondent’s felony conviction shows that he is not a person of good character.

10. Assistant Attorney General Moira McCarthy requested that the Respondent’s license be revoked and that the Respondent be assessed no less than a $2,000.00 civil penalty.

11. As a mitigating factor to consider in determining the Respondent’s disciplinary penalty, the Respondent has completed 120 hours of community service working for the Superior Court’s Family Legal Assistance Project. This is 20 hours more than required under the terms of his probation. It should also be noted that the Respondent is currently attending Phoenix College to be a paralegal. Finally, the Respondent is working as a laborer netting only $700.00 to $800.00 per month.

CONCLUSIONS OF LAW

1. The Department has jurisdiction over the Respondent and the subject matter of this case pursuant to A.R.S. §32-2108, et seq. The Department has the burden of proof in this matter.

2. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has been convicted in a court of competent jurisdiction in the State of Arizona of a felony within the meaning of A.R.S. §32-2153(B)(2) as set forth in Findings of Fact #2 through 6.

3. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent is not a person of good character within the meaning of A.R.S. §32-2153(B)(7) as set forth in Findings of Fact #2 through 9.

4. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that the Respondent has violated state laws, regulations and rules involving violence within the meaning of A.R.S. §32- 2153(B)(10) as set forth in Findings of Fact #2 through 6.

5. Based upon the foregoing, the undersigned Administrative Law Judge finds that the Respondent's real estate salesperson's license should be revoked pursuant to provisions of A.R.S. §32-2153(B).

6. The undersigned Administrative Law Judge finds that the preponderance of the evidence shows that grounds exist to impose a civil penalty against the Respondent not to exceed $1,000.00 per violation of Title 32, Chapter of the Arizona Revised Statutes.

7. The undersigned Administrative Law Judge finds that the Respondent has committed three violations pursuant to A.R.S. §§32-2153(B)(2), (B)(7) and (B)(10). Therefore, the civil penalty may not exceed $3,000.00 pursuant to A.R.S. §32-2160.01(A). The undersigned Administrative Law Judge finds that the civil penalty should be only $2,000.00 for the reasons set forth in Findings of Fact #11.

RECOMMENDED DECISION

In view of the foregoing, the undersigned Administrative Law Judge recommends that the Respondent’s real estate salesperson’s license be revoked and that the Respondent be assessed a $2,000.00 civil penalty. The civil penalty shall be paid by money order or cashier’s check made payable to the Arizona Department of Real Estate and is due on or before the date that this Order becomes final.

Done this day, July 31, 1998.

_________________________________ Casey J. Newcomb Administrative Law Judge

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

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

By _______________________________ -----------------------

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