ALJDEC

98A-H1959-REL · Department of Real Estate · 1998-10-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING October 19, 1998.

APPEARANCES: Petitioner, Ian Chait, was represented by his attorney, Robert N. Bass, Esq.

The Arizona Department of Real Estate (herein called the “Department”) was represented by Assistant Attorney General, Moira McCarthy, Esq.

ADMINISTRATIVE LAW JUDGE: Robert. I. Worth _____________________________________________________________________

Evidence and testimony were presented, and based upon the entire case record, including all filed pleadings, the following Findings of Fact, Conclusions of Law and Recommended Order have been prepared and are hereby submitted by the Administrative Law Judge for review, consideration, approval and adoption by the Commissioner of the Department (“herein called the “Commissioner”).

FINDINGS OF FACT

1. Petitioner seeks issuance of a real estate salesperson’s license. His application for licensure was denied by the Department, and the instant hearing was convened following the filing of a timely request by Applicant.

2. In answer to a specific question on the filed application form, Petitioner disclosed that he had several criminal convictions for acts committed during a period of time spanning from 1985 through 1995. The Department’s denial action, as set forth in

the formal Notice of Hearing, was primarily based upon separate acts of criminal misconduct committed between 1989 and 1995.

3. Petitioner, Ian Chait, is now almost 33 years of age, and he was years old when the first of the offenses enumerated in the Department’s formal notice was committed.

4. The prior history of Mr. Chait’s anti-social course of conduct is liberally peppered with a prolonged series of criminal activities that resulted in numerous arrests and convictions. A general chronology of such instances, proven at the hearing and admitted by Petitioner, is set forth below:

a) For acts committed on November 11, 1989, Mr. Chait was convicted in the State of Illinois on March 27, 1990 for a theft offense and was fined $300.00.

b) For acts committed on February 28, 1991, Mr. Chait was convicted in the State of Illinois on November 18, 1991 of possession of cannabis, a prohibited substance, and was sentenced to one year of non- reporting probation. (The term of probation was deemed completed six months thereafter on May 18, 1992).

c) For acts committed on December 17, 1993. Mr. Chait was convicted in Pinal County, Arizona on May 30, 1995 of possession of prohibited drugs and drug paraphernalia, which were, respectively, undesignated Class 4 and Class 6 felonies. He was sentenced to nine months of incarceration in jail, to four year’s of supervised probation, to perform 360 hours of community service and also to pay fines, surcharges and fees aggregating approximately $3,000.00. The Court suspended the portion of the sentence providing for jail incarceration.

d) For acts committed on October 13, 1994, Mr. Chait was convicted in Maricopa County, Arizona (Northeast Phoenix Justice Court) on June 30, 1996 of misconduct with a weapon and was sentenced to one year of summary probation plus 80 hours of community service.

e) For acts committed on December 29, 1994 and also on March 24, 1995, Mr. Chait was convicted in Maricopa County, Arizona (Phoenix Municipal Court) on December 15, 1995 for reporting false information and for driving on a suspended driver’s license, receiving a sentence for both offenses consisting of the payment of a $79.00 fine.

f) For acts committed on September 4, 1995, Mr. Chait was convicted in Maricopa County, Arizona on May 21, 1996 of misconduct involving a weapon (a Class 4 Felony) and was sentenced to three years of supervised probation, to run concurrently with the four-year probation term previously imposed by the Pinal County Court. Part of the sentence also consisted of a five-day period of incarceration in jail which was served by Petitioner in addition to a more substantial time period of pre-sentence incarceration.

5. The last of the above-listed offenses, committed over three years prior to the instant hearing date, was further aggravated due to the fact that violations of Petitioner’s then-existing supervised probation were involved. Not only was merely possessing a weapon violative of his probation conditions, but also other instances of probation violations were established, including leaving the State without advance permission, issuing a check in payment of certain court-imposed fees without having sufficient funds in his account, failing to timely report a law enforcement contact and committing offenses relating to motor vehicle operation.

6. Most all of the above-enumerated offenses were misdemeanors and most all are found and determined to have involved a significant degree of moral turpitude. The Pinal County conviction was for an Class 4 and a Class 6 offense that was subsequently reduced from a felony to a misdemeanor. Mr. Chait’s only other felony was the most recent misconduct in mid-1995 relating to the possessing of a weapon during his probation period. Each felony was classified as non-dangerous and non-repetitive in nature, and in no instance was Mr. Chait using or brandishing any weapon in his possession. Almost without exception, all of Petitioner’s crimes were, as aptly described in a pre-sentencing report introduced into evidence, essentially victimless offenses. 7. Mr. Chait’s probation periods were terminated early. The 4-year probation imposed on May 30, 1995 in the Pinal County matter had commenced as standard probation but, when the terms of such probation were violated, had been later changed to intensive probation. The probation imposed by the Pinal County Court was wholly terminated by that Court’s judgment entered on January 23, 1998, reducing the conviction from a felony to a misdemeanor and effectively ending the probation retroactive to November 24, 1997. On May 18, 1998, the Pinal County Court ordered Petitioner’s civil rights restored and also vacated and dismissed the conviction after allowing a withdrawal of the previously entered guilty plea.

8. Petitioner’s separate 3-year probation, running concurrently with the above-described 4-year probation, imposed on May 21, 1996 in the Maricopa County Court action was terminated by that Court’s judgment entered on January 6, 1998. Subsequently, the Maricopa County Court on June 16, 1998 also restored Petitioner’s civil rights, vacating and dismissing the charges that had resulted in his conviction. Additionally, on April 25, 1997, the Northeast Phoenix Justice Court had vacated its prior judgment of guilt with respect to Mr. Chait.

9. Motivated significantly by his incarceration in jail, Petitioner successfully embarked upon and accomplished a monumental change in his entire character and behavior. Not only has he consistently and unfailingly attended regular rehabilitation group meetings for the past three years, but also Mr. Chait sought and assumed leadership roles in several of those programs, earning him the respect and admiration of participants in such programs as well as of his business and social associates. The community service obligations initially included as part of his criminal sentencing have developed into a crusade for Mr. Chait who has continued, long after the mandates of his prior sentence were completed, to devote time and energy to assisting other members of the community wherever and whenever help is needed or desired.

10. After the early termination of his probation periods, Petitioner voluntarily intensified rather than diminished the frequency of his attendance and participation in several rehabilitation programs for his own benefit and for the benefit of others in need of supportive action. He still regularly attends Alcoholic Anonymous, Narcotics Anonymous and Cocaine Anonymous meetings.

11. There is little doubt or dispute that the prior historical record compiled by Mr. Chait is extremely bad. It was likewise uncontroverted that most every incident leading to all of his criminal behavior or activity was traceable, in large part, to Petitioner’s admitted alcohol and drug dependence over the entire time period of such anti-social conduct. However, the dramatic turn-around in all aspects of this individual’s behavior and attitude can not be and should not be overlooked or minimized.

12. The above-described subsequent Orders of the several criminal tribunals setting aside their respective prior convictions do not operate to preclude the Department from considering the “fact” that Petitioner was convicted of the crimes nor from considering the underlying conduct leading to such convictions. Conversely, any evaluation as to entitlement for licensure at the present time should also properly consider the favorable subsequent actions by each of several different courts in granting the relief requested, the eventual early termination of all probation periods thereby recognizing the significant extent of behavioral change demonstrated by this petitioner, as well as the continuing manifestation of his ongoing efforts and desires to become and remain a productive and law- abiding citizen and a contributing member of society.

13. Any affirming of the Department’s prior denial action would have an ultimate impact which is equivalent to a revocation of an existing license. With this in mind, all of the aforesaid circumstances, when considered in combination, appear to fully warrant a result in this case which is not tantamount to a revocation but instead should prompt a result that enables the license sought herein to be issued to the applicant, albeit perhaps not unconditionally.

14. The credible evidence presented at the administrative hearing, featuring a parade of witnesses attesting to Mr. Chait’s accomplishments and reputation all during the post-criminal period, supports a determination that the root causes of past problems have been drastically curtailed, if not wholly eliminated. Petitioner has become and has remained highly trustworthy and dependable in all of his personal and business relationships, serving as a successful example of the ultimate and the desired

objectives of the justice and penal system. At the very minimum, Mr. Chait has sufficiently proven by a preponderance of all the evidence that he is presently a person of integrity and entitled to an opportunity, perhaps not wholly unrestricted or unconditional, to demonstrate his ability to discharge duties applicable to licensed real estate salespersons.

CONCLUSIONS OF LAW

1. The Commissioner has jurisdiction over this matter pursuant to the provisions of A.R.S. §§32-2108 and 32-2153. Additionally, the Commissioner is empowered with discretion to issue or to deny licenses to individuals after full consideration and evaluation of all pertinent information, including any applicable mitigating and/or aggravating circumstances.

2. There is little question, under the uncontroverted facts of this case, that grounds do exist for the Commissioner to deny the license application filed by Mr. Chait. However, the broad discretionary authority granted by statute should not properly begin and end with a determination of the presence or absence of such grounds.

3. Although the record in this case did provide a basis for upholding the prior denial action by the Department, having sufficiently established all of the elements set forth in the statutory subsections specified in the Notice of Hearing, a favorable exercise of the aforementioned statutory discretion by the Commissioner in granting the instant license application under all the circumstances appears supportable and justified.

4. Recognizing that the repeated instances of criminal behavior exhibited in the past by Petitioner, even if attributable in large part to the voluntary ingestion of alcohol or drugs, can not be condoned, especially when committed by an individual seeking licensure in a professional capacity heavily dependent on adherence to many varied

statutes, rules and ethical standards, it is nevertheless determined under the totality of the evidence as to all relevant facts and circumstances that Petitioner has met his burden of proof with respect to his entitlement to receive a license at this time. In reaching such conclusion, consideration has been given to the nature, gravity and timing of the criminal conduct and convictions, the subsequent setting aside of several such convictions, and the unusually persuasive demonstration of Petitioner’s significant efforts, apparently all very successful, to recognize the deleterious impact on his life of continued substance abuse, the need to immediately and permanently alter his behavior patterns and the direction of his lifestyle, as well as to maintain an ongoing program of remaining alcohol and drug free. Finally, his willingness and dedication to become an active leader in rehabilitation programs designed to help himself and others is another compelling and supporting element for his present entitlement to licensure.

5. Notwithstanding the foregoing, it does not necessarily follow that the Commissioner’s granting of the license sought hereunder by Mr. Chait must be outright or unconditional. It is concluded that the Commissioner’s discretionary authority to grant or to deny license applications includes the inherent power to place a newly issued license on probation for a reasonable time period, thereby discharging his duty to the general public by giving a degree of recognition to legitimate concerns generated by this applicant’s prior pronged criminal record. In this case, any probation should enable Mr. Chait to perform functions and to engage in activities to the same extent as the holder of any other real estate salesperson’s license, but the probation period should be of sufficient length so as to provide an inducement to avoid the commission of any act or omission that would be grounds for discipline. In the event of a proven future violation, any unexpired portion of the probation period would automatically become active license suspension. Additionally, a specific affirmative condition of any term of Mr. Chait’s probation should consist of the obtaining of favorable results following periodic random testing of Petitioner by or on behalf of the Department for the presence of any prohibited substances in his system.

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RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Commissioner enter his Order providing for the issuance in due course of an individual real estate salesperson’s license to the Petitioner, Ian Chait.

It is further recommended, as an express condition for the issuance of the aforesaid license, that such license be placed on an initial term of probation commencing on the date of issuance for a period of twelve (12) months; provided however, that any unexpired portion of the probationary period shall automatically become active license suspension on and after a future finding, after Notice of Hearing and Hearing, that Ian Chait has violated any of the provisions of A.R.S. §32-2153.

It is further recommended, by way of a specific condition of the above-provided probation and provisional license issuance, that Petitioner, Ian Chait, shall, upon request, submit to periodic testing by or on behalf of the Department, no less than quarterly, so as to verify that he has remained free of any substance abuse, to include the non-medical consumption of alcohol or prohibited drugs to any extent. Stated alternatively, the license issued to Ian Chait shall be in the nature of a conditional license for the initial twelve months after issuance, to become non-conditional on and after an initial probationary period of substantial duration, over the course of which no random periodic testing has revealed the presence or indication of any alcohol or any prohibited substances in his system.

Dated: October 30, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Mr. Jerry Holt, Commissioner Department of Real Estate 2910 North 44th Street (Suite 100) Phoenix, AZ 85018

ATTN: Bonnie Hollon -----------------------

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