ALJDEC

98A-H1979-REL · Department of Real Estate · 1999-01-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 1999 APPEARANCES: Michal S. Kucera on his own behalf; Assistant Attorney General Michael Denious on behalf of the Arizona Department of Real Estate ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________

FINDINGS OF FACT On August 26, 1998, Michael Kucera (“Mr. Kucera”) submitted an original application (the “Application”) to the Arizona Department of Real Estate (the “Department”) for a real estate salesperson’s license. Mr. Kucera answered “Yes” to question 1 on the original licensure questionnaire attached to the Application, which asked: “Have you ever been convicted of any felony, misdemeanor, or other crime OR do you have any formal charges pending?…” In his response to the above-mentioned question, Mr. Kucera disclosed that he has a 1994 criminal conviction for robbery. On December 14, 1993, Mr. Kucera was arrested in connection with an armed robbery of Weber’s Market, committed on December 3, 1994, in the Village of Oak Creek in Sedona, Arizona. On February 17, 1994, an information was filed in State of Arizona v. Michael Sonny Loisy, aka Michael Kucera, Yavapai County Superior Court No. CR94-0124 (“CR94-0124), charging Mr. Kucera with Count I, Aggravated Robbery, a class 3 felony, and Count II, Theft, a class 3 felony.

On March 10, 1994, Mr. Kucera pleaded guilty in CR94-0124 to the above- mentioned charges. The Court placed Mr. Kucera on intensive probation for three years, ordered him to pay restitution in the amount of $8,495.69, pay $200.00 to the Victims Compensation Fund, and pay other fees. Mr. Kucera also agreed to make additional restitution to Weber’s Market in the sum of $80.00 for a check forged by him . The evidence of record established that Mr. Kucera completed his probation on July 9, 1997, that he paid full restitution as ordered by the Court and, that he made restitution in the sum of $80.00 for the above-mentioned check. On November 4, 1998, the Department mailed, by certified mail, a letter to Mr. Kucera informing him of its decision to deny the Application. On November 9, 1998, Mr. Kucera timely filed his appeal of the Department’s denial of the Application. Mr. Kucera demonstrated during the hearing that, since the conviction, he has taken affirmative measures to “turn his life around” by working and pursuing an Associates Degree and obtaining employment with Sunterra Resorts for the past year. He initially was employed in the capacity of a telemarketer and was first promoted to being an assistant manager. Presently, Mr. Kucera has been promoted to manager. That position requires him to have a real estate salesperson’s license. Mr. Kucera presented twelve letters of character, including one letter by Tami Neves (“Ms. Neves”) and a positive letter from his probation officer. Aside from Ms. Neves’ letter, the authors of the other letters were not present at the hearing, were not subject to cross examination by counsel for the Department and were unable to be questioned or observed by the Administrative Law Judge. Accordingly, those letters, while considered, were given very little weight. Ms. Neves testified that she has known Mr. Kucera for approximately three years and is aware of his prior criminal record. According to Ms. Neves, Mr. Kucera is very focused on his career and is either working, going to college or educating himself in the commodities field. Ms. Neves believes Mr. Kucera to be of good character and represented that he is always helpful to others in the neighborhood.

Despite the showing of Mr. Kucera’s efforts of putting the past behind him and of his attempts to establish good character, because he has been off of probation for approximately one and a half years, there is sufficient evidence to support the Department’s concern as to his character. Consequently, he failed to sustain his burden of showing that the Department did not have grounds to deny the Application. Although Mr. Kucera has made significant strides towards accomplishing rehabilitation, Mr. Kucera did not establish good character for a sufficient period of time for this Judge to determine that the Department’s denial of the Application should be reversed. However, of concern to this Judge is the same concern expressed by Mr. Kucera and his probation officer, namely, that he not pay for his “mistake” the rest of his life. Therefore, it is important to state that nothing herein should be viewed in a negative light as to the accomplishments and life choices Mr. Kucera has made since his conviction. Perhaps, at a later point in time, Mr. Kucera may present sufficient evidence that establishes his good character so as to be granted a salesperson’s license by the Department. At this point in time, however, there is insufficient evidence to support a reversal of the Department’s denial of the Application. CONCLUSIONS OF LAW As set forth above, Mr. Kucera has been convicted in a court of competent jurisdiction of a felony, the crime of theft, a crime of moral turpitude, within the meaning of A.R.S. §32-2153(B)(2). Mr. Kucera’s conduct ,as set forth above, demonstrates that, at this point in time, Mr. Kucera is not a person of good character within the meaning of A.R.S. §32-2153(B)(7). The above-mentioned conviction established that Mr. Kucera has violated state laws involving theft, in violation of A.R.S. §32-2153(B)(10). Based on the above, grounds exist for the Commissioner of the Department to deny the Application. Mr. Kucera did not meet his burden of establishing by a preponderance of the evidence that the Application should have been granted, or, alternatively, that the Department’s denial of the Application should be reversed. . . .

RECOMMENDED ORDER Mr. Kucera is to be commended on his accomplishments and his progress in his attempts to rehabilitate himself. However, due to the nature of the criminal offense and the relatively short time since Mr. Kucera has been off probation, the Application should be denied at this time, thus allowing more time for Mr. Kucera to more fully rehabilitate himself and progress in the development of good character. Done this day, January 25, 1999.

_________________________________ LEWIS D. KOWAL Administrative Law Judge

Original transmitted by mail this ____ day of January, 1999, to:

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

ATTN: Bonnie Hollon

By _______________________________

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