ALJDEC

98A-H1971-REL · Department of Real Estate · 1998-11-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On November 5, 1998, a hearing was held on the Petitioner’s Appeal of the Department’s denial of the Petitioner’s application for a salesperson’s license. Assistant Attorney General Michael T. Denious appeared on behalf of the Arizona Department of Real Estate (the “Department”). John G. Schiller (the “Petitioner”) 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 October 28, 1997, the Petitioner submitted an original application for a real estate salesperson's license with the Department (the “Application”). See State's Exhibit A.

2. On the Application, the Petitioner disclosed a 1978 felony conviction that occurred in the state of Washington. See State's Exhibit A.

3. On or about September 14, 1978, the King County Department of Public Safety ("D.P.S.") was summoned to the residence of Gloria Schiller. Upon arriving at Gloria Schiller's residence, the D.P.S. discovered that Gloria Schiller was dead from multiple gun wounds. See State's Exhibit E. The Petitioner testified that he was legally separated from Gloria Schiller at the time of the murder.

4. The Petitioner subsequently was arrested and found to have a .23 blood alcohol level. The Presentence Report indicated that the Petitioner was examined by a Dr. Donald E.

Rice who diagnosed the Petitioner with alcohol hallucinosis. See State's Exhibit H. The Presentence Report further indicated that Dr. Rice concluded the following:

John Schiller is competent and would not have a psychiatric defense. On the other hand, it is obvious that the homicide was an alcohol involved incident and probably would not have occurred except for the fact that he was heavily under the influence of alcohol.

See State's Exhibit H, at page 2.

5. The Presentence Report further quoted Dr. Rice as follows:

When sober, this is a hard-working, inhibited, meticulous, conscientious man; when intoxicated his usual controls are lost and he has the potential to become violent. It is obvious his alcoholism requires further treatment.

See State's Exhibit H, at page 3.

6. On or about September 19, 1978, an Information was filed in State of Washington v. John George Schiller, King County Superior Court No. 87554, charging the Petitioner with causing the death of Gloria D. Schiller, with premeditated intent, while committing and attempting to commit the crime of burglary in the first degree, and in the course of and in furtherance of said crime. See State's Exhibit F.

7. On or about October 24, 1978, the Petitioner pleaded guilty to the charge of Murder in the Second Degree, While Armed with a Deadly Weapon and a Firearm, a Class A Felony. See State's Exhibit G.

8. On or about November 29, 1978, the court entered a Judgment and Sentence convicting the Petitioner of Murder in the Second Degree, a Class A Felony. See State's Exhibit I.

9. On or about December 19, 1978, the State of Washington Board of Prison Terms and Paroles ordered the Petitioner to be confined in a Washington Correctional Facility for a period of twelve years (five years mandatory). See State's Exhibit J.

10. On or about December 29, 1982, the Indeterminate Sentence Review Board released the Petitioner from the confines of a state correctional facility and restored his civil rights. See State's Exhibit K. The Petitioner served approximately four years in prison.

11. On July 15, 1998, the Department sent a letter by certified mail notifying the Petitioner of its decision to deny his application for a real estate salesperson's license. See State's Exhibit C. On or about August 12, 1998, the Petitioner timely requested an administrative hearing to appeal the Department's decision. See State's Exhibit D.

12. The Petitioner is 60 years old. He is currently married and has a good relationship with his three grown children. The Petitioner testified that he was intoxicated when the murder of his former wife occurred. The Petitioner testified that he has no memory of the murder. The Petitioner testified that his three children were teenagers or younger at the time of the murder. The Petitioner testified that it took five years to reconcile with the middle child. However, the Petitioner testified that he has reconciled with all three children.

13. The Petitioner testified that he worked for Encyclopedia Britannica after his release from prison in 1982. The Petitioner testified that he was a door to door salesman selling encyclopedias until 1985. The Petitioner testified that he had constant contact with the public as a salesperson. The Petitioner testified that (in 1985) he was promoted to a sales and management position located in Alaska for Encyclopedia Britannica. The Petitioner testified that he dealt more with libraries and schools in this new position.

14. James McCready was the Petitioner's supervisor at Encyclopedia Britannica. Mr. McCready wrote the following:

John had a very good professional relationship with both the people he supervised and his customers. His performance was good and he performed his duties following the companies procedures. I highly recommend John . . .

See Petitioner's Exhibit 1.

15. The Petitioner testified that he retired from Encyclopedia Britannica in 1996. The Petitioner testified that he subsequently worked for a friend at CCI Incorporated on the North Slope of Alaska. The Petitioner testified that CCI Incorporated was in the business of environmental cleanup. The Petitioner testified that he set up the North Slope office and was responsible for calling around the country to procure supplies and equipment. The Petitioner testified that he officially retired from CCI Incorporated in December of 1997.

16. The Petitioner testified that he has had constant contact with the public since his release from prison. The Petitioner testified that he has never had another arrest or charge filed against him since his release from prison. The Petitioner testified that he has never even had a traffic ticket since his release.

17. The Petitioner testified that he joined Alcoholics Anonymous ("AA") shortly after his arrest. The Petitioner recently celebrated his twentieth (20) year of sobriety. The Petitioner has sponsored over 100 recovering alcoholics through the AA’s 12 step program. The Petitioner testified that he attended an AA meeting everyday while he lived in Alaska. The Petitioner testified that he still goes to meetings 4 times a week in Arizona. The Petitioner is also a frequent speaker at AA events and prisons throughout the country.

18. In 1990, the Petitioner was elected to the Board of Directors of the Alano Club. The Alano Club is an organization for AA members. It is a place for recovering alcoholics to socialize and gamble (i.e. bingo). In 1992, the Petitioner was elected as the President of the Alano Club. The Petitioner testified that he was responsible for hundreds of thousands of dollars when he was the Alano Club’s President and member of its Board of Directors. The Petitioner testified that he was responsible for managing the Alano Club which included the signing of checks and the renewal of its gambling license.

19. The Petitioner is currently married to Delane Schiller who is a licensed real estate agent in Arizona and also a recovering alcoholic. The Petitioner and his wife operated a successful motor home business from 1989 to May of 1998 when the business was sold. Mrs. Schiller testified that she has never witnessed the Petitioner with a glass of alcohol. Mrs. Schiller testified that the Petitioner is the "best man that I know."

20. The Petitioner testified that he cannot legally own a gun because of his felony conviction. Furthermore, the Petitioner testified that he has no desire to own a gun. The Petitioner testified that no guns are allowed in his home. The Petitioner further testified that he refuses invitations to go hunting with friends.

21. The Petitioner testified that he is "financially secure" for the rest of his life. The Petitioner acknowledged that he does not financially need to be a real estate agent. However, the Petitioner testified that he is just not ready to fully retire. The Petitioner testified that he needs something to do besides playing golf everyday.

22. The Petitioner testified that he has no desire to drink alcohol and that he no longer even craves alcohol. The Petitioner conceded that drinking alcohol could make him violent again. The Petitioner testified that he is no threat to the public. The Petitioner testified that he served his time in prison and has been a model citizen since his release.

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. 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 the Petitioner (1) has been convicted in a court of competent jurisdiction of a felony; or (2) is not a person of honesty, truthfulness and good character; or (3) has violated a law that involves violence against another person. A.R.S. §32-2153(B)(2),(7) & (10).

3. The Petitioner has been convicted in a court of competent jurisdiction in the state of Washington of a Class A felony (i.e. Murder in the Second Degree) within the meaning of A.R.S. §32-2153(B)(2) as set forth in Findings of Fact ##6 through 8.

4. The Petitioner violated the laws of the state of Washington by murdering his former wife in 1978. This violation clearly involved violence against another person within the meaning of A.R.S. §32- 2153(B)(10) as set forth in Findings of Fact ##3, 6 through 8.

5. The Petitioner’s behavior in 1978 when he murdered his former wife shows that the Petitioner was not a person of good character during that time period within the meaning of A.R.S. §32-2153(B)(7) as set forth in Findings of Fact ##3, 6 through 8.

6. The Petitioner’s behavior from early 1979 to November 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 ##12 through 22. The Petitioner has made a remarkable turnaround in his life and appears to be a positive influence and role model in our society. The Petitioner has led a responsible and productive life since 1979 despite having numerous opportunities to deceive or hurt the public.

7. Grounds certainly do exist to deny the Petitioner’s Application pursuant to A.R.S. §§ 32-2153(B)(2), (7) & (10). However, the undersigned Administrative Law Judge concludes that the Petitioner has sustained his burden of proving that he possesses the requisite qualifications to be licensed by the Department as a real estate salesperson for the following reasons:

A. The Petitioner appears to be a very honest and credible individual; B. The Petitioner truthfully and honestly disclosed his felony conviction on his Application; C. The Petitioner apparently committed the murder while highly intoxicated. Dr. Rice concluded that the murder probably would not have occurred except for the alcohol; D. The Petitioner committed the crime over twenty (20) years ago and has successfully served his prison sentence; E. The Petitioner has had no other convictions or arrests since his conviction twenty years ago; F. The Petitioner has been sober for over twenty years. The Petitioner has also sponsored over 100 recovering alcoholics through the AA’s 12 step program. He is also a frequent speaker on the subject of alcoholism; G. The Petitioner has been a successful businessman since 1982. He has had constant contact with the public since 1982 with no apparent complaints regarding his character, honesty or integrity; H. The Petitioner was elected as President and as a member of the Board of Directors for the Alano Club. In these positions, he successfully managed the Alano Club and handled thousands of dollars; I. The Petitioner fully understands that alcohol may cause him to become violent again; J. The Petitioner does not appear to pose any threat of harm to the public when he is sober.

RECOMMENDED DECISION

Grounds certainly existed for the Department to deny the Petitioner’s Application on July 15, 1998. However, in light of the evidence presented at the November 5, 1998 hearing, the undersigned Administrative Law Judge respectfully recommends that the Department’s denial of the Petitioner’s Application for a salesperson’s license be reversed. The Petitioner’s Application should be granted with the following conditions:

A. It is recommended that the Petitioner shall abstain completely from the use of any alcohol, illegal drugs, or controlled substances unless taken pursuant to a valid prescription and the orders of a physician, doctor, or other person authorized by law to issue such prescription; B. It is further recommended that the Petitioner shall submit to body fluid tests, randomly drawn, not exceeding one (1) original test per thirty (30) day period at the request of the Department’s Compliance Officer. At the request of the Compliance Officer, the Petitioner shall submit to a retest, within forty-eight (48) hours of an original test where the results include a recommendation for recollection of a specimen. All such tests shall be conducted within four (4) hours after the Petitioner is contacted by the Compliance Officer or the Petitioner’s employing broker. The testing shall take place at a federally certified laboratory agreeable to the Petitioner and the Compliance Officer. The Petitioner shall ensure that all such test results are furnished to the Compliance Officer in a timely manner. The required testing shall be at the Petitioner’s expense. C. It is further recommended that the Petitioner attend at least four (4) AA meetings per week and that a record of the date, place, telephone number and location of these AA meetings be submitted the Compliance Officer on a monthly basis; D. It is further recommended that within ten (10) days of being employed by a broker or within ten (10) days of the effective date of the Order entered in this matter, that the Petitioner shall obtain from his employing broker, a signed statement to be filed with the Compliance Officer, certifying that such broker has received a copy of the Order entered in this case; E. It is further recommended that any conditions imposed as part of the Order in this case remain in effect for a period of one (1) year from the effective date of the Order and that any violation of the conditions of said Order are subject to disciplinary proceedings as provided by law.

Done this day, November 16, 1998.

_________________________________ Casey J. Newcomb Administrative Law Judge

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

Mr. Jerry Holt, Commissioner Arizona 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