ALJDEC

98A-H1966-REL · Department of Real Estate · 1998-09-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 9, 1998 APPEARANCES: Assistant Attorney General Michael T. Denious for the Arizona Department of Real Estate; James Grandjean, Esq. for the Respondent ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

FINDINGS OF FACT 1. On April 29, 1998, Bruce S. Spaulding (“Mr. Spaulding”/”Respondent”)) timely submitted to the Arizona Department of Real Estate (“Department”) an application for renewal of his Arizona real estate salesperson’s license (“Renewal Application”). 2. Mr. Spaulding answered “Yes” to question 1 in the Renewal Application which asked ”Have you been convicted of any felony, misdemeanor or other crime OR do you have any formal charges pending? BEFORE ANSWERING, READ THE FOLLOWING STATEMENT: Even though you may have entered into a plea bargain or pleaded ‘no contest,’ or your arrest or conviction has been vacated, pardoned, expunged, dismissed, or appealed, OR your civil rights have been restored, you are, nevertheless, required to answer ‘YES.’ However, you are not required to answer ‘YES’ for minor traffic violations. DUI is not a minor traffic violation. A.R.S. 32- 2108(B)(3)(a).” 3. Mr. Spaulding disclosed to the Department an arrest and conviction concerning the Felony of Driving Under the Influence (“DUI”) as more fully set forth below. 4. On August 31, 1997, Mr. Spaulding was arrested by the Camp Verde Marshall’s Office upon observing him to be operating his motor vehicle while under the influence of intoxicating liquor. At that time, Mr. Spaulding had two passengers in the vehicle, one of whom was a minor. 5. On September 2, 1997, a Felony Complaint was issued in the Justice Court, Verde Valley Precinct, County of Yavapai Case, Number FR97094011 (“Case No. FR97094011”), charging Mr. Spaulding with Count I, Aggravated DUI with Minor; Count II, Aggravated DUI over 0.10 with Minor, Count III, Endangerment of victim Mike Fields; Count IV, Endangerment of victim Carla Fields; Count V, Endangerment of victim Terry Cook; and Count VI, Endangerment of victim James Spaulding. 6. On September 10, 1997, a Felony Indictment was filed in the Superior Court of Yavapai County in State v. Bruce Stanley Spaulding, Case Number CR9970292 (“Case No. CR9970292. 7. On December 2, 1997, Mr. Spaulding pleaded guilty to Count I, Aggravated Driving Under the Influence of Intoxicating Liquors, a Class 6 Felony in Case No. CR9970292. 8. On February 3, 1998, the Court entered a Judgment and Order in Case No. CR9970292, convicting Mr. Spaulding of Aggravated DUI with Minor in Vehicle, an undesignated Class 6 Felony, in violation of A.R.S. §§28- 697(A)(3)(D), 28-692(A)(1), 28-692.01, 28-691, 13-701, 13-702 and 13-801. 9. The Court suspended imposition of sentence upon Mr. Spaulding and placed him on supervised probation for three years, with that probationary term expiring in February, 2001. The Court ordered Mr. Spaulding to be incarcerated for ten days with nine days suspended, contingent upon completion of a court-ordered alcohol or drug screening, and education or treatment program. 10. In the Judgment and Order entered in Case No. CR9970292, the Court ordered that pursuant to A.R.S. §13-702(G), the offense shall be treated as a felony for all purposes until probation is terminated. 11. On June 22, 1998, the Department sent a letter by certified mail to Mr. Spaulding notifying him of the Department’s intent to deny the Renewal Application. 12. On July 22, 1998, Mr. Spaulding timely requested an administrative hearing to appeal the Department’s decision denying the Renewal Application. 13. During the hearing, Respondent’s counsel asserted that Respondent had submitted documents before the Yavapai Superior Court to have the above-mentioned conviction reduced to a misdemeanor. However, Respondent was awaiting for a court date to present that request before a judge. 14. During the hearing, Respondent’s counsel could not avow to this tribunal that the above-mentioned felony conviction would be reduced to a misdemeanor, just that counsel believed he would be successful in his efforts.

CONCLUSIONS OF LAW 1. As set forth above in the Findings of Fact, Mr. Spaulding has been convicted in a court of competent jurisdiction in the Sate of Arizona of a felony within the meaning of A.R.S. §32-2153(B)(2). 2. As set forth above in the Findings of Fact, Mr. Spaulding has been convicted of a felony and is presently on probation as a result of that conviction within the meaning of A.R.S. §32-2130(E) 3. Grounds exist for the Commissioner of the Department (“Commissioner”) to deny renewal of Mr. Spaulding’s license pursuant to A.R.S. §32-2130(E) because of Mr. Spaulding’s felony conviction and probation status relating to that conviction. 4. Grounds exist under A.R.S. §32-2153(B)(2) for the Commissioner to suspend, revoke or deny the renewal of, or the right of renewal of, Mr. Spaulding’s Arizona real estate salesperson’s license. 5. The evidence of record supports the Department’s denial of the Renewal Application. 6. During the hearing, the Department’s counsel requested that the Respondent be assessed a civil penalty of $2,000.00 for bringing on this hearing for the reason that Respondent had no grounds to support a reversal of the Department’s denial of the Renewal Application. It is determined that grounds do not exist for an award of a civil penalty in this matter. Not only can such an award be viewed as being retaliatory in nature, it could also be viewed to be a deterrence to having licensees request appeals of actions taken by the Department. Further, the Department failed to present any evidence on which to determine a specific amount for the civil penalty to be imposed. RECOMMENDED ORDER It is recommended that the Department’s denial of Bruce S. Spaulding’s real estate salesperson’s license be affirmed. Done this day, September 17, 1998.

_________________________________ LEWIS D. KOWAL Administrative Law Judge

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

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