ALJDEC

98A-H1965-REL · Department of Real Estate · 1998-09-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On September 16, 1998, a hearing was held on the Petitioner’s Appeal of the Department’s denial of the Petitioner’s application for a real estate salesperson’s license. Assistant Attorney General Moira McCarthy appeared on behalf of the Arizona Department of Real Estate (the “Department”). Attorney Robert N. Bass represented Allen K. Creten (the “Petitioner”). 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 May 6, 1998, Allen K. Creten (the "Petitioner") submitted an original application (the "Application") for a real estate salesperson's license (the "License") to the Department. See State’s Exhibit A.

2. Question 1 of the License Questionnaire asked the following: 1. Have you ever been convicted of any felony, misdemeanor or other crime OR do you have any formal charges pending? See State’s Exhibit A (Original Licensure Questionnaire).

3. The Petitioner truthfully answered "YES" to the above referenced question and disclosed the following convictions: a. 1984 Burglary, a Class 4 felony; b. 1984 Burglary, a Class 4 Felony; c. 1986 Disturbing the Peace, a Misdemeanor; d. 1986 Shoplifting, a Misdemeanor; e. 1987 Shoplifting, a Misdemeanor; f. 1987 Trespassing, a Misdemeanor; g. 1990 Burglary, a Class 4 Felony; h. 1990 Burglary, a Class 4 Felony.

4. The Petitioner attached a four page notarized statement to the Licensure Questionnaire wherein he summarized the circumstances surrounding each conviction. See State’s Exhibit B. The Petitioner noted that “I have committed no crime since that 12/28/90 date, and that I have been clean and sober ever since. Id.

5. On or about July 7, 1998, the Department mailed its Intent to Deny Application for Real Estate Salesperson's License to the Petitioner by certified mail. See State’s Exhibit C. On or about July 20, 1998, the Petitioner timely requested an administrative hearing to appeal the Department's decision. See State’s Exhibit D.

A. The Convictions

6. On or about August 10, 1984, an Information was filed in State of Kansas v. Kevin C. Stewart and Allen K. Creten, District Court of the Twenty-ninth Judicial District, State of Kansas, No. 84CR0989A & B, charging the Petitioner with unlawfully, willfully, feloniously, knowingly and without authority of entering into a building to-wit: Miller's Pharmacy, with the intent to commit a theft therein, in violation of K.S.A. 21-3715. See State’s Exhibit E.

7. On or about October 18, 1984, the Petitioner entered into a plea agreement wherein he pleaded guilty to Count 1, Burglary. See State’s Exhibit F. On or about November 16, 1984, the Court accepted the Petitioner's guilty plea and entered Judgment convicting the Petitioner of Count 1, Burglary, a Class 4 Felony. See State’s Exhibit G. The Court sentenced the Petitioner to the custody of the Secretary of Corrections for a term of not less than two nor more than five years, with probation denied. Id.

8. On or about August 30, 1984, an Information was filed in State of Kansas v. Allen K. Creten, District Court of the Twenty-ninth Judicial District, State of Kansas, No. 84CR1081, charging the Petitioner with unlawfully, willfully, feloniously, knowingly and without authority of entering into a building to-wit: a business located at 9201 Parallel, Wyandotte County, Kansas, with the intent to commit a theft therein, in violation of K.S.A. 21-3715; and Count 2, unlawfully, knowingly and willfully obtaining or exerting unauthorized control over property and/or obtaining control over stolen property knowing

the property to have been stolen by another, to-wit: business property of a value greater than $150.00, with the intent to permanently deprive the owner, to-wit: Foster's Prescriptions of the possession, use or benefit of said property, in violation of K.S.A. 21-3701. See State’s Exhibit H.

9. On or about October 18, 1984, the Petitioner entered into a plea agreement wherein he pleaded guilty to Count 1, Burglary. Count 2 was dismissed. On or about November 16, 1984, the Court accepted the Petitioner's guilty plea and entered Judgment convicting the Petitioner of Count 1, Burglary, a Class 4 Felony. See State’s Exhibit I. The Court sentenced the Petitioner to the custody of the Secretary of Corrections for a term of not less than two nor more than five years, with probation denied. The Court ordered that this sentence run consecutive with the aforementioned sentence. Id. The Petitioner was discharged for good behavior on June 26, 1986. See State’s Exhibit J.

10. On or about October 18, 1986, the Petitioner was arrested for Indecent Exposure by the City of Phoenix Police Department, D.R. No. 86-139392. See State’s Exhibit K. The Petitioner stated that he was robbed during a drug purchase by two individuals who stole his jeans. See State’s Exhibit B, page 2. The Charge of Indecent Exposure was amended to Disturbing the Peace. The Petitioner was convicted of Disturbing the Peace, a Misdemeanor. The Court sentenced the Petitioner to three years summary probation and ordered him to pay a fine in the amount of $500.00.

11. On or about December 23, 1986, the Petitioner was arrested for Shoplifting by the City of Phoenix Police Department. See State’s Exhibit L. A complaint was issued by the City of Phoenix Municipal Court, No. 86- 169807, charging the Petitioner with Shoplifting, a Misdemeanor. The Petitioner was convicted of Shoplifting, a Misdemeanor, and ordered to pay a fine.

12. On or about July 23, 1987, the Petitioner was again arrested for Shoplifting by the City of Phoenix Police Department. See State’s Exhibit M. A complaint was issued by the City of Phoenix Municipal Court, No. 87- 094131, charging the Petitioner with Shoplifting, a Misdemeanor. The Petitioner was convicted of Shoplifting, a Misdemeanor, and ordered to pay a fine.

13. On or about August 9, 1987, the Petitioner was cited by the City of Phoenix Police Department for criminal trespassing. See State’s Exhibit N. A criminal complaint was issued by the City of Phoenix Municipal Court, No. 87-102027, for Criminal Trespassing. The Petitioner was convicted of Trespass, a Misdemeanor, and ordered to pay a fine.

14. On or about September 29, 1990, the Petitioner was arrested by the Phoenix Police Department for Burglary. See State’s Exhibit O.

15. On or about October 29, 1990, an Information was issued in State of Arizona v. Allen Kim Creten, Maricopa County Superior Court No. CR90-11554, charging the Petitioner with Count 1 and 2; Burglary in the Third Degree. See State’s Exhibit P. On or about February 26, 1991, the Petitioner entered into a plea agreement wherein he pleaded guilty to Count 1, Burglary in the Third degree, a Class 4 Felony. See State’s Exhibit P1. Count 2 was previously dismissed. Id.

16. On or about April 25, 1991, the Court entered a Judgment and Order convicting the Petitioner of Count 1: Burglary in the Third Degree, a Class Felony. See State’s Exhibit P2. The Court suspended sentence and placed the Petitioner on four years supervised probation until April 25, 1995. Id. The Petitioner was ordered to pay restitution and victim compensation and to participate in the Adult Probation Community Punishment Substance Abuse Program. Id. The Petitioner was discharged from probation on May 10, 1995. See State’s Exhibit P4.

17. On or about December 28, 1990, the Petitioner was again arrested for Burglary by the Glendale Police Department, No. 90-094237. See State’s Exhibit Q. On or about February 12, 1991, a Complaint was issued in State of Arizona v. Allen Kim Creten, Glendale Justice Court No. CR91-01553, charging the Petitioner with Burglary in the Third Degree, a Class 4 Felony. See State’s Exhibit R.

18. On or about February 26, 1991, the Petitioner entered into a plea agreement wherein he pleaded guilty to Burglary in the Third Degree. See State’s Exhibit R1. As part of the plea agreement, this matter was transferred to the Maricopa County Superior Court for sentencing concurrent with CR90-11554.

19. On or about April 25, 1991, the Court entered a Judgment and Order convicting the Petitioner of Burglary, Third Degree, a Class 4 Felony. See State’s Exhibit R1. The Court suspended sentence and placed the Petitioner on four years supervised probation until April 25, 1995. Id. As terms of the probation, the Petitioner was ordered incarcerated for a period of one year. Id. However, the Petitioner never had to serve the one year sentence. The Petitioner was discharged from probation on May 10, 1995. See State’s Exhibit R2.

20. In summary, the Petitioner was convicted of eight different crimes including four felonies. The Petitioner has applied to have the four misdemeanor convictions set aside. See Petitioner’s Exhibit 1. The Phoenix Municipal Court granted the Petitioner’s applications involving the four misdemeanor convictions. Id.

B. The Witnesses & Testimony

21. Bonnie Carrillo is an Investigator for the Department. Investigator Carrillo testified that a real estate listing agent often has access to a potential seller's home. This is because the listing agent usually has a key or computerized card to the home's lock box. This allows the listing agent to show the home to prospective buyers while the homeowner is not home. Investigator Carrillo testified that there is an honor code among real estate agents not to steal from the home while the homeowner is not present. However, Investigator Carrillo conceded that it would not be difficult to determine who stole from a home because the computerized lock box can produce a list of the agents who entered the home.

22. The Petitioner is 42 years of age. He admitted that he was convicted of the above referenced crimes. The Petitioner testified that he never was violent when he committed these crimes. The Petitioner testified that he committed these crimes because he was addicted to drugs. The Petitioner testified that he has successfully served or completed all of the ordered sentences pertaining to these crimes. The Petitioner further testified that he has successfully paid all of the ordered civil and criminal fines and restitution. The Petitioner has also successfully paid back taxes owing in the amount of $10,000.00.

23. The Petitioner testified that he began his probation in early 1991. As a condition of probation, the Petitioner was required to attend the Adult Probation Community Punishment Substance Abuse Program. The Petitioner testified that he attended this program three times a week for a year. The Petitioner testified that this program was a big factor in his recovery from drug addiction. The Petitioner further testified that he voluntarily attended Arizona Family, a residential treatment program for six months.

24. The Petitioner testified that he has attended Narcotics Anonymous (“NA”) meetings “at least every other night” since 1991. The Petitioner has also served as a sponsor to twelve other NA recovering addicts. The Petitioner currently sponsors four individuals. The Petitioner also testified that he voluntarily serves on the NA’s Hospitals and Institutions Committee. The Petitioner testified that this committee holds meetings once a month at St. Likes Hospital for counseling drug addicts.

25. The Petitioner testified that (since 1995) he has frequently visited the Towers Jails to counsel inmates on drug addiction. The Petitioner testified that this is a voluntary service that he provides at least once a month. The Petitioner testified that he is often asked to speak throughout the state of Arizona about his past drug and criminal problems. The Petitioner recently spoke at the World Unity Day event in Prescott, Arizona. The Petitioner also volunteers at the Corazon Treatment Center for Chicanos Por La Causa, Inc. See Petitioner’s Exhibit 4.

26. The Petitioner testified that he was employed for four years with AT&T Phoenix Works and Cable Systems International. The Petitioner served as the Union Steward during this employment. See Petitioner’s Exhibit 5. As the Union Steward, the Petitioner handled various problems and concerns pertaining to union workers at the facility. Id.

27. The Petitioner testified that he quit his job with AT&T because he wanted to be a real estate agent. The Petitioner testified that he enrolled in a real estate school and successfully passed the Department’s real estate exam. See State’s Exhibit A. However, the Department denied the Petitioner’s Application. Since quitting his AT&T job, the Petitioner has earned a living by successfully starting and managing his own painting and maintenance business. The Petitioner testified that he has frequently had access to people’s homes and usually receives a 1/3 cash deposit for a project. The Petitioner testified that he has never stolen any money or items (since 1990) despite ample opportunity to do so.

28. William "Rocky" Banovac is a self employed real estate broker licensed with the Department since 1981. Mr. Banovac testified that he has previously employed the Petitioner to perform maintenance and repairs at various properties. Mr. Banovac testified that he has always known about the Petitioner's criminal past. Mr. Banovac testified that he has always trusted the Petitioner. In fact, Mr. Banovac testified that he has given the Petitioner “blank checks” for the purchase of materials and supplies. Mr. Banovac testified that he would hire the Petitioner for a real estate agent position.

29. Kathy Berg is a property manager for five different properties. Ms. Berg has been licensed with the Department since 1984. Ms. Berg testified that she met the Petitioner when he was a prospective tenant at one of her properties. Ms. Berg testified that she has always known about the Petitioner's criminal past because she performed a credit and criminal background check on him. Ms. Berg testified that she rented an apartment to the Petitioner and hired him to paint and maintain buildings at the apartment complex. Ms. Berg testified that the Petitioner has had access to the keys to all of the property’s apartments but has never stolen anything. Ms. Berg testified that the other tenants think highly of the Petitioner. Ms. Berg also testified that she would not hesitate to hire the Petitioner as a real estate salesperson.

30. Jeffrey A. Myer is an Assistant Attorney General with the Office of the Attorney General. Mr. Myer has experience prosecuting cases involving drugs. Mr. Myer is also married to the Petitioner's sister. Mr. Myer is very familiar with the Petitioner's drug problems and criminal history. Mr. Myer testified that the Petitioner's criminal history was related to his drug use. Mr. Myer further testified that the Petitioner was never violent when he committed a crime.

31. Assistant Attorney General Jeffrey A. Myer further testified that the Petitioner sporadically lived at his home during the Petitioner's drug abusing years. Mr. Myer testified that he and his wife tried to help the Petitioner but ultimately had to kick him out of the house in 1990 because of his drug problem. However, Mr. Myer testified that the Petitioner "appears" to have been drug free for eight years since he started the 12 step NA program. Mr. Myer stated that he has no personal knowledge that the Petitioner has had a relapse since 1990. Mr. Myer testified that the Petitioner is a man of honesty , truthfulness and good character when he is sober.

32. Pam Rose Myer is the Petitioner's sister. She is also the wife of Assistant Attorney General Jeffrey A. Myers. Mrs. Myer formerly was the office accountant for the Maricopa County Bar Association for over eight years. She is currently a homemaker and mother of three daughters. Mrs. Myer testified that the Petitioner has a good heart but became a criminal because of his addiction to drugs. Mrs. Myer testified that she and her husband were forced to use "tough love" by evicting the Petitioner from their home when the Petitioner refused to treat his drug problem in 1990.

33. Mrs. Myer testified that the Petitioner has become a new person since he began the NA's 12 step drug rehabilitation program. Mrs. Myer testified that the Petitioner has successfully dealt with several crisis situations during his recovery without depending on drugs. Mrs. Myer noted that her grandmother recently passed away. This grandmother raised her and the Petitioner. Mrs. Myer and the Petitioner traveled to Kansas for the funeral. Mrs. Myer feared that the Petitioner would suffer a relapse in his drug recovery because of the grandmother's death. However, Mrs. Myer testified that the Petitioner handled the grandmother's death better than she did. In fact, Mrs. Myer testified that she had to lean on the Petitioner for support.

34. Mrs. Myer testified that she can finally speak to her brother as an adult. Mrs. Myer testified that the Petitioner is a person of honesty, truthfulness and good character. Mrs. Myer testified that it is an honor to testify on behalf of her brother.

35. James R. ("James") is an electronics repair man. James is a recovering drug addict. The Petitioner's counsel requested that James' name be kept confidential for personal and employment purposes. James testified that he heard the Petitioner speak at an NA meeting in 1995. James testified that he was so impressed that he asked the Petitioner to sponsor him. James testified that the Petitioner has been his sponsor for over three years. James testified that the Petitioner has been a significant influence in his life and that he would be "dead or in jail" without the Petitioner's guidance. James testified that the Petitioner is a man of honesty, truthfulness and good character. In fact, James testified that he would trust the Petitioner to take his young son on camping trips.

36. On or about September 25, 1998, the Petitioner submitted a notarized affidavit from Michael J. Davin, a police officer with the City of Phoenix Police Department for about 24 years. The undersigned Administrative Law Judge is mindful of the fact that the State has not had the opportunity to cross-examine Officer Davin. However, the undersigned Administrative Law Judge cannot entirely discount the importance of this affidavit especially since it appears to be a reliable. Officer Davin stated that he has known the Petitioner for nine years and is aware of the Petitioner’s past criminal and drug problems. See Affidavit of Officer Michael Davin, dated September 25, 1998. Officer Davin further noted that the crimes that the Petitioner committed “were all drug related” and “never showed any element of violence.” Id. Officer Davin also stated that “over the years, I have on several occasions gone to Allen to discuss issues relating to drug addiction, and I have shared the insight he provided me with addicted persons I encountered while working as a police officer.” Id.

37. Officer Davin stated that the NA’s 12 step recovery program “was the start of when Allen became, in my eyes, a new person.” Id. Officer Davin also confirmed that the Petitioner has been involved with (1) community outreach programs; (2) speaking engagements; (3) sponsoring other 12 step participants; and (4) visiting and counseling inmates. Officer Davin also noted that the Petitioner did not suffer a relapse when his long time best friend and NA sponsor died. Id. Officer Davin further stated that the Petitioner “is an honest and trustworthy individual.” Id. Officer Davin concluded by stating that “over the years in the course of my duties, I have come into contact with many addictive individuals, and in my opinion, Allen’s success is truly remarkable.” Id.

CONCLUSIONS OF LAW

1. The Petitioner has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. A.R.S. §41-1065; Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). 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 evidence 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).

2. The Commissioner has the discretion to deny the issuance of a real estate salesperson’s license if it appears that the applicant (1) has been convicted in a court of competent jurisdiction of a felony or a crime of theft or moral turpitude; or (2) is not a person of honesty, truthfulness and good character. A.R.S. §32-2153(B)(2) & (7).

3. Shoplifting is a crime of moral turpitude. State v. Superior Court, In and For Pima County, 121 Ariz. 174 (Ariz.App 1978). The Petitioner has been convicted in a court of competent jurisdiction in Arizona and Kansas of a felony or of a crime involving theft and moral turpitude within the meaning of A.R.S. §32-2153(B)(2) as set forth in Findings of Fact ##6 through 20.

4. The Petitioner’s behavior from 1984 through 1990 shows that the Petitioner was not a person of honesty, truthfulness and good character during that time period within the meaning of A.R.S. §32-2153(B)(7) as set forth in Findings of Fact ##6 through 20.

5. The Petitioner’s behavior from early 1991 to September of 1998 shows that the Petitioner is now a person of honesty, truthfulness and good character within the meaning of A.R.S. §32-2153(B)(7) as set forth in Findings of Fact ##22 through 37. The Petitioner has made a remarkable turnaround in his life and appears to be a positive influence and role model in our society. Despite having numerous opportunities to steal and deceive, the Petitioner has led a responsible and productive life since 1991. More importantly, the Petitioner has endured personal tragedies and stressful challenges since 1991 without relapsing into his pre-1991 criminal oriented/drug abusive life style.

RECOMMENDED DECISION

Unfortunately, there is no magical rule or formula for determining when a person is fully reformed from drug addiction or criminal behavior. However, this Petitioner has been a model citizen since December of 1990 and has fully repaid his legal and financial debts owing to society for his prior criminal behavior. Grounds certainly do exist for denying this Petitioner’s Application. However, the undersigned Administrative Law Judge recommends that the Commissioner approve the Petitioner’s Application for the reasons set forth in Findings of Fact ##22 through 37 and Conclusion of Law #5.

Done this day, September 29, 1998.

_________________________________ Casey J. Newcomb Administrative Law Judge

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

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

By _______________________________

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