ALJDEC

98A-H1972-REL · Department of Real Estate · 1998-11-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 10, 1998 APPEARANCES: Assistant Attorney Michael T. Denious for the Arizona Department of Real Estate; Todd T. Sneed on his own behalf ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

FINDINGS OF FACT

1. On August 10, 1998, Todd T. Sneed (“Mr. Sneed”) submitted an application for an original real estate salesperson’s license (“Application”) with the Arizona Department of Real Estate (“Department”). 2. In the Application, Mr. Sneed disclosed a conviction for a 1994 misdemeanor. 3. On November 29, 1994, Mr. Sneed was arrested by the Tucson Police for selling crack cocaine to an undercover police officer. On December 16, 1994, Mr. Sneed was indicted in State of Arizona v. Todd Tyrone Sneed, Pima County Superior Court No. CR47753 (“Case No. CR47753”), charging Mr. Sneed with one count of an Unlawful Sale of a Narcotic Drug, a class two felony, and one count of use of Wire or Electronic Communication in a Drug/Narcotic Related Transaction, a class four felony. 4. On January 31, 1995, Mr. Sneed pleaded guilty to the unlawful possession of a narcotic drug, a class four felony, in Case No. CR477553. 5. On March 9, 1995, the Court entered Judgment and Sentence in Case No. CR47753 convicting Mr. Sneed of Unlawful Possession of a Narcotic Drug: Cocaine, a class four felony. The Court suspended imposition of sentence and placed Mr. Sneed on a two year supervised probation. The terms of probation for Mr. Sneed included the payment of a $2,000.00 fine, payable in monthly installments, with a $12.00 fee and the performance of 360 hours of community service. 6. On March 13, 1997, Mr. Sneed completed probation. 7. On March 13, 1997, the State of Arizona obtained a civil judgment in Case No. CR 47753 against Mr. Sneed and in favor of the State for the unpaid balance of Mr. Sneed’s fine of $1,264.00 and for 145 hours of community service still due. 8. On August 31, 1998, the Department sent a letter to Mr. Sneed via certified mail notifying Mr. Sneed of the Department’s denial of the Application. 9. On September 14, 1998, Mr. Sneed timely filed with the Department a request for an administrative hearing to appeal the Department’s denial of the Application. 10. During the hearing, Mr. Sneed presented credible evidence that on approximately October 14, 1998, the above-mentioned conviction had been set aside and that he has had his civil rights restored. Prior to the hearing, Mr. Sneed did not notify the Department of this development with regard to his criminal background. 11. Mr. Sneed admitted disclosing a misdemeanor rather than a felony conviction on the Application and explained that based on his understanding of information he previously received from an attorney with the Public Defender’s office, he believed that once he completed probation the felony was reduced to a misdemeanor. However, Mr. Sneed also admitted that after he completed probation, he did not consult legal counsel or inquire as to the status of the above-mentioned conviction. 12. Mr. Sneed has not made any payments to satisfy the above-mentioned judgment. Previously, Mr. Sneed worked as an insulation installer and that work was seasonal. Mr. Sneed is currently unemployed and represented that, at this time, he is not able to make any payments on the judgment but hopes that if he is successful in obtaining his real estate salesperson’s license he would be able to make such payments. 13. Mr. Sneed credibly testified that since the above-mentioned conviction he has had no other involvement with law enforcement officials and that he regrets having taken the actions that gave rise to that conviction. 14. Although Mr. Sneed testified that he believes he has completed all of the community service hours ordered by the Court in Case No. 47753, he did not produce any credible evidence to rebut the documentary evidence presented by the Department showing 145 community service hours are still due. 15. Mr. Sneed credibly testified that he has a prospect of employment through a teacher with the real estate class that he took in preparation for the real estate license examination. 16. Other than his own testimony regarding his character, Mr. Sneed did not present any letters of character reference or have any witnesses testify on his behalf. CONCLUSIONS OF LAW 1. As set forth above, Mr. Sneed has been convicted in a court of competent jurisdiction of a felony within the meaning of A.R.S. §32-2153(B)(2). 2. Mr. Sneed’s conduct , as set forth above, demonstrates that Mr. Sneed is not a person of good character within the meaning of A.R.S. §32- 2153(B)(7). 3. Based on the above, grounds exist for the Commissioner of the Department to deny the Application. 4. Mr. Sneed did not meet his burden of establishing by a preponderance of the evidence that the Application should have been granted, or alternatively, that the denial of the Application by the Department should be reversed. RECOMMENDED ORDER Considering the date when Mr. Sneed ‘s criminal actions occurred as well as the date probation was completed and that insufficient evidence was presented to establish that, at this time, Mr. Sneed has the appropriate character for licensure, the Application should be denied. Done this day, November 30, 1998.

_________________________________ Lewis D. Kowal Administrative Law Judge

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

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

By _______________________________ -----------------------

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