ALJDEC

98A-H1970-REL · Department of Real Estate · 1998-10-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 5, 1998

APPEARANCES: Petitioner, Lisa Lyn Nicodemus, appeared in her own behalf.

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. The record in this case was held open following the adjournment of the scheduled hearing so as to allow the submission by the State of a post-hearing memorandum containing case citations and by the Petitioner of additional documentary evidence. The deadline given for such filing was October 15, 1998, and the submissions by both parties were timely.

2. On June 16, 1998, Petitioner, Lisa Lyn Nicodemus, completed and filed an application for renewal of her existing real estate salesperson’s license. In answer to a

specific question on the application, Ms. Nicodemus answered in the affirmative that she had been convicted of a felony since either the date of license issuance or of the last renewal thereof.

3. It was not disputed that on November 1, 1996, Petitioner was arrested and charged with Driving Under the Influence (“D.U.I.”) plus leaving the scene of an accident. Pursuant to a Guilty Plea Agreement, Ms. Nicodemus was convicted on January 22, 1997 only of the D.U.I. offense for which she was sentenced to pay specified fines and fees totaling $937.00 and to serve 10 days in the County Jail, 9 days of which were suspended, conditional upon her completion of an alcohol screening and treatment program. Her enrollment and completion of such program was also required as part of her sentence.

4. Although required under the Department’s applicable Rule R4-28- 301(C)(1), A.A.C., Petitioner failed to notify the Department of her January, 1997 conviction within ten days. The unintentional nature of this omission on the part of Ms. Nicodemus does not excuse her failure to comply with the provisions of that Rule.

5. Petitioner’s driver’s license was suspended by the Department of Motor Vehicles from February 11, 1997 through May 12, 1997 as a direct result of the above-described D.U.I. offense and conviction.

6. It was similarly uncontroverted that on April 27, 1997, prior to her completing the required alcohol screening and treatment program, and while her driver’s license was suspended, Ms. Nicodemus was again arrested and charged with an aggravated D.U.I., since it was her second such offense within 60 months, and also with driving on a suspended license. She was additionally charged with the offense of endangerment of the apprehending police officer.

7. Pursuant to another Guilty Plea agreement, Petitioner was convicted on September 9, 1997 of the three charged April, 1997 offenses, the first two of which were Class 1 misdemeanors. The third charge of endangerment was a Class 6

undesignated felony that was to remain open-ended and potentially subject to being reduced to a misdemeanor after the successful serving of her probation period, all in the discretion of the Court. Ms. Nicodemus was sentenced to be placed on supervised probation for a period of three years commencing September 9, 1997 and, therefore, scheduled to terminate in September, 2000. The sentence also provided for her to pay specified fines and fees in the aggregate amount of $880.00. Additionally, she was sentenced to pay a further total sum of $500.00 either at once or by transmitting monthly payments of $50.00 until a total sum of $500.00 was paid in full. Finally, as part of the probation conditions, Ms. Nicodemus was to be incarcerated in the County Jail for 90 days, of which period 30 days would be suspended upon her successful completion of the alcohol screening and treatment program. She did actually serve 58 more days in jail after being credited with 2 days served prior to sentencing.

8. The testimony at the hearing indicated that Petitioner was released from her jail incarceration in November, 1997 and has completed or is completing all portions of her sentence in a highly satisfactory manner. She has also received some indications that the probation period may be shortened and that the open-ended felony may be reduced to a misdemeanor.

9. By way of matters in further mitigation presented at the hearing, Petitioner demonstrated that she has remained sober for a period of approximately 18 months since her arrest for the last offense and has taken significant strides to overcome her prior acknowledged drinking problems and addiction. Over the past one and one-half years, she has sought and received group or professional help, motivating her to an ongoing and consistent display of exemplary conduct and behavior patterns. Her praiseworthy efforts in this regard have earned the support of her business associates in her quest to become and remain a law-abiding and productive member of the community.

10. Notwithstanding all of the foregoing, and mindful of Ms. Nicodemus’ significant progress and demonstrated success in altering her prior behavior patterns and responses, designed not to repeat any past mistakes, it is found and determined

that insufficient rehabilitation time has elapsed since the dates of her criminal conduct and of her felony conviction. Her undeniable and rapid progress must be balanced against the relatively recent dates of her criminal conduct and convictions as well as the repeat nature and the serious nature of such offenses. The unserved balance of the long and ongoing probation period that the Court imposed as her sentence for the offense she had committed, prevents her unsupervised return to society at this time. Moreover, the felony conviction may properly be viewed as such despite the eventual possibility or even probability of favorable future Court action to reduce the offense to a misdemeanor.

11. While the sincere and ongoing efforts by Petitioner to guard against future temptations and against the possible reoccurrence of any anti-social behavior are highly commendable, as are the unqualified expressions of confidence and support from business colleagues, it does not follow that an entitlement presently exists for Mr. Ms. Nicodemus to retain the license that she presently holds.

12. Nothing in this decision and recommendation is intended to indicate the Ms. Nicodemus is permanently barred or disqualified from ever holding a real estate license in this State. On the contrary, as expressly permitted by statute, rule and policy, Petitioner may become eligible to apply for and to receive a license in the future if she continues for a reasonably extended time period to exhibit a good and trouble-free record in her business and private life. See A.R.S. §32-2124(A)(5).

CONCLUSIONS OF LAW

1. The Commissioner is empowered in this matter to impose a disciplinary penalty against Petitioner’s license pursuant to the provisions of A.R.S. §32-2153(B)(2) based upon her conviction of a felony by Order of a Court of competent jurisdiction. The future possibility that the undesignated felony may ultimately be reduced to a misdemeanor does not operate to prevent the Commissioner from treating such conviction as a felony at the present time. Moreover, the three year period of probation which is still being served also renders Petitioner ineligible to renew her license as set forth in A.R.S. §32-2130(E).

2. The evidence of record further supports the imposition of a disciplinary penalty pursuant to A.R.S. §32-2153(B)(7) based upon Petitioner’s conduct and actions which reflect adversely upon the good character requisite for continued licensure.

3. The evidence established that by failing to notify the Commissioner of her January, 1997 D.U.I. conviction within ten days, Ms. Nicodemus has violated the express provisions of a rule applicable to holders of real estate licenses, and she is therefore subject to the imposition of disciplinary penalties for violation of A.R.S. §32- 2153(A)(3); namely, A.A.C. Rule R4-28-301(C)(1).

4. Under the proven facts and circumstances of record in this case, the imposition of a license revocation by the Commissioner appears to be appropriate and fully warranted hereunder. Although grounds also exist for the Commissioner to impose a monetary civil penalty against this Petitioner pursuant to A.R.S. §32-2160.01, it is concluded that no useful purpose would be served under all the circumstances by imposing any civil penalty at this time.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Commissioner enter his Order revoking the real estate salesperson’s license issued to and held by Lisa Lyn Nicodemus.

Dated: October 27, 1998.

OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Robert I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Jerry Holt, Commissioner Arizona 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