ALJDEC

98A-H1976-REL · Department of Real Estate · 1998-12-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 30, 1998.

APPEARANCES: Petitioner, Marie A. Lawrence, 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. In August, 1998, Petitioner, Marie A. Lawrence, submitted an application to the Department seeking to obtain a real estate salesperson’s license. Following the Department’s denial action, Petitioner filed a timely request for the instant hearing.

2. It was not disputed, as fully disclosed by Petitioner in answer to a specific question on the license application, that Marie A. Lawrence had pleaded guilty to and was convicted of two separate charged felonies consisting of bank robberies. The

judgment of conviction was entered by a Federal Court on February 19, 1988 and the underlying actions were committed in the State of Washington on or prior to June 1986. Pursuant to a guilty plea agreement, no additional charges would be brought with respect to three other bank robberies which Petitioner had admittedly committed.

3. Ms. Lawrence was 23 years of age when the above-described criminal actions were committed, and it was demonstrated that all such criminal activity was the direct result of her need for money to support her admitted drug addiction at that time.

4. The Court deferred sentencing substantially in accordance with the terms of the aforesaid plea agreement under which Petitioner had agreed to and did participate as an inpatient at a rehabilitation facility for a period of two years. The component elements of the sentence ultimately included in the Court’s judgment consisted of (a) the imposition of a sentence for time previously served equal to the two-year period served at the rehabilitation facility plus a five-day time period served at a County jail after her arrest for the last robbery offense and while awaiting the Court’s disposition, (b) the suspension of the imposition of such sentence while Petitioner was placed on a five-year period of supervised probation, (c) the requirement to pay a penalty assessment of $100.00, and (d) an obligation to make restitution in the combined amount of $3,559.00 relating to the two bank robberies that were the subjects of her conviction.

5. Petitioner was shown by the evidence adduced at the administrative hearing to have ultimately paid the entire sums of the restitution and of the assessment through periodic remittances and to have successfully completed both the two-year rehabilitation program and the five-year probation period without any problems. On the contrary, as well as testing negative for the presence of any drugs over the prolonged time span, she displayed admirable diligence and competence in her business and social relationships, holding several positions of responsibility during and after her probation period.

6. With the documented support of her assigned probation officer, Ms. Lawrence applied for and was granted an insurance license issued on two different occasions by

the State of Washington. Such licenses were issued by that State with its full knowledge of Petitioner’s prior felony conviction for several instances of criminal behavior, all of which had taken place within Washington.

7. On April 27, 1993, the Court entered an Order confirming that Petitioner’s probation was formally terminated effective as of February 18, 1993.

8. The evidence was similarly not disputed, as also disclosed on the real estate application form submitted to the Department in Arizona, that Petitioner was subsequently convicted by a municipal Court in the State of Washington on March 14, 1997 for driving under the influence of alcohol (“D.U.I.”).[1] This conviction was the result of a guilty plea agreement and was based upon acts committed on October 19, 1996.

9. Irrespective of the motivation or reasons prompting such plea agreement, the D.U.I. conviction may not properly be collaterally attacked in these administrative proceedings. In any event, although there appeared to have been some disagreement with respect to the circumstances of Petitioner’s arrest and behavior, her plea of guilty was to a formal complaint alleging that she had operated a motor vehicle with an impermissibly high level of alcohol concentration in her system, thereby effectively deeming all such allegations uncontroverted.

10. The sentence imposed by the Washington Court provided for 365 days of imprisonment, all but two days of which was suspended. Additionally, Ms. Lawrence was required to pay an aggregate fine in the sum of $925.00. As of the time of the hearing, Petitioner was shown to have made periodic payments in satisfaction of all but $100.00 of the imposed fine.

11. By way of matters in further mitigation presented at the hearing, Petitioner demonstrated that she has taken significant strides to overcome her prior acknowledged drug addiction and that she has remained free of narcotic drugs for a

period of approximately 12 years. She continues to be motivated and dedicated to establishing 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 and family, as well as of law enforcement personnel, in her quest to become and remain a law- abiding and productive member of the community.

12. While the sincere and ongoing efforts by Petitioner to guard against future temptations and against the possible reoccurrence of any anti-social actions or activities are highly commendable, as are the unqualified expressions of confidence and support from business colleagues and others, it does not follow that an entitlement presently exists for Ms. Lawrence to receive the license for which she is presently applying.

13. Notwithstanding all of the foregoing mitigating factors, and mindful of Ms. Lawrence’s significant progress and demonstrated success in altering her prior behavior patterns and responses, resulting from her ongoing attention to dealing with her drug-related problems in a manner designed not to repeat any past mistakes, it is found and determined that the quantity and gravity of the finalized criminal proceedings, as well as the relatively recent date of the last criminal misconduct, cannot be wholly overlooked and must be balanced against her undeniably good progress. While it is probable that at some point in the not too distant future, a continuing and unbroken record of exemplary conduct and activities on the part of Petitioner will balance or outweigh the adverse impact generated by her prior record, the action of the Commissioner’s licensing department in concluding that the good character requisite for licensure has not at this time been sufficiently demonstrated by Ms. Lawrence cannot be held to have been arbitrary or unjustified.

14. Nothing in this decision and recommendation is intended to indicate that Ms. Lawrence is permanently barred or disqualified from ever holding a real estate license in this State. On the contrary, as expressly permitted by the provisions of A.R.S. §32-2124(A)(4), 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.

CONCLUSIONS OF LAW

1. The Director of the Department is empowered by statute with discretion to issue or to deny real estate licenses to applicants who have previously been convicted of a felony after full review and evaluation of all pertinent information, including any mitigating and/or aggravating factors, forming part of the entire case record in the matter as presented at an administrative hearing.

2. The totality of the evidence adequately revealed that several alternative grounds, as expressly set forth in A.R.S. §32-2153(B)(2), (5), (7) and (10), existed and still exist for the Department to have denied the pending license application submitted by Petitioner. More specifically, her prior felony conviction not only was indicative of conduct that constituted the engaging in a form of dishonest dealings but also was shown to have been for a crime of theft, involving moral turpitude, in violation of applicable federal law. Moreover, the underlying criminal activity forming the basis for her felony conviction, considered in combination with her subsequent D.U.I. conviction, reflects adversely upon the good character requisite for licensure.

3. Any present disqualification of Ms. Lawrence to be granted a real estate salesperson’s license should not be and is not treated as perpetual, and a future new application may be favorably considered and accepted after the passage of a reasonable time period upon a showing that, during such intervening period, she continues to achieve and to maintain a good record.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that the Commissioner enter his Order denying the application for a real estate salesperson’s license submitted by Petitioner, Marie A. Lawrence.

Dated: January 12, 1999. OFFICE OF ADMINISTRATIVE HEARINGS

_________________________________ Robert. I. Worth Administrative Law Judge

Original transmitted on _____________________

by: _____________________________ , to:

Mr. Jerry Holt, Commissioner Department of Real Estate 2910 North 44th Street (Suite 100) Phoenix, AZ 85018

ATTN: Bonnie Hollon

----------------------- [1] At the time of this conviction, Petitioner was married and was using the name of Marie A. Meyer. The evidence revealed that Marie A. Lawrence is the same individual as Marie A. Meyer.

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