ALJDEC

99A-023-REL · Department of Real Estate · 1999-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On April 13, 1999, a hearing was held on the Petitioner’s Appeal of the Department’s summary suspension of the Petitioner’s real estate salesperson’s license. Assistant Attorney General Moira McCarthy appeared on behalf of the Arizona Department of Real Estate (the “Department”). Kimberly Steding (the “Petitioner”) appeared on her 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. The Petitioner originally was issued a real estate salesperson’s license in Arizona on July 21, 1992. The Petitioner’s current license will expire on July 31, 2000. The Petitioner testified that she placed her real estate salesperson’s license in the “inactive status” category in 1994. See Department’s Exhibit B. The Petitioner testified that she has not used her real estate salesperson’s license since approximately 1994.

2. On or about December 15, 1995, an Arizona Traffic Ticket and Complaint was issued by the City of Phoenix, charging the Petitioner with (1) DUI; (2) DUI with a BAC of .10 or above; and (3) Speed greater than reasonable and prudent. See Department’s Exhibit J1.

3. On or about July 2, 1996, the Judge of the Phoenix Municipal Court found the Petitioner guilty of the aforementioned charges. See Department’s Exhibit J3. The Municipal Court entered a Judgment and Sentence Order sentencing the Petitioner to 10 days in jail with nine days suspended upon the successful completion of SASS. Id. The Municipal Court also ordered that the Petitioner’s driver’s license be suspended for a period of 90 days and that she be assessed a civil penalty in the amount of $648.00. Id.

4. On or about July 26, 1996, the Petitioner submitted an Application for Renewal of her real estate salesperson’s license. See Department’s Exhibit A. The Department subsequently approved the Petitioner’s Application for Renewal, reserving the right to re-allege the matter in any future administrative action.

5. On or about October 4, 1996, the Petitioner was stopped by a DPS officer for speeding and erratic driving. See Department’s Exhibit C. On or about November 10, 1997, an Information was issued in State of Arizona v. Kimberly Lynn Steding, Superior Court of Arizona, County of Maricopa (No. CR97-12515), charging the Petitioner with Counts I & II: Aggravated Driving or Actual Physical Control While Under the Influence of Intoxicating Liquor or Drugs, class 4 felonies. See Department’s Exhibits E & G.

6. On or about June 2, 1998, the Petitioner submitted a timely Application for Renewal of her real estate salesperson’s license. The Petitioner disclosed her pending DUI case on this application. The Department subsequently approved the Petitioner’s Application for Renewal. However, the Department’s approval occurred prior to any conviction on the aforementioned felony charges.

7. On or about August 26, 1998, the Superior Court entered a Judgment and Sentencing Order convicting the Petitioner of Counts I & II: Aggravated Driving or Actual Physical Control While Under the Influence of Intoxicating Liquor or Drugs, class 4 felonies. See Department’s Exhibit G. The Superior Court suspended imposition of sentence and placed the Petitioner on supervised probation for a period of four years commencing on August 26, 1998. Id. As terms of probation, the Petitioner was ordered to serve four months of incarceration in the Arizona Department of Corrections. Id. The Superior Court also ordered the Petitioner to complete a DWI-VIP program and to pay a $40.00 per month probation fee. Id.

8. On or about February 4, 1999, the Commissioner ordered the summary suspension of the Petitioner’s real estate salesperson’s license.

9. The Assistant Attorney General has requested that the Petitioner’s real estate salesperson license be revoked. The Assistant Attorney General did not request that a civil penalty be imposed against the Petitioner.

10. Mr. Brian Wright testified on behalf of the Petitioner. Mr. Wright has known the Petitioner for approximately 10 years. Mr. Wright is the Petitioner’s boyfriend. The undersigned Administrative Law Judge found Mr. Wright’s testimony to be evasive and somewhat misleading regarding his relationship with the Petitioner. Mr. Wright testified that the Petitioner is a good person and is very community oriented. Mr. Wright testified that the Petitioner is a person of good character.

11. The Petitioner testified that she is a person of good character. The Petitioner testified that she has made some errors in judgment but is generally a very good person. The Petitioner testified that she is an honest and trustworthy person.

12. The Petitioner testified that she has been a volunteer with several agencies from 1991 through 1995. See Petitioner’s Exhibit 2, page 4. The Petitioner has worked with Parents Anonymous, Child Protective Services and the Independent Living Program. Id. The Petitioner has worked as a mentor or advocate for children with the aforementioned agencies. Id.

13. The Petitioner testified that she also obtained her Substitute Teaching Certificate in 1992. See Petitioner’s Exhibits 2 & 8. From September of 1994 through May of 1995, the Petitioner taught art class full time with the Phoenix Preparatory Academy in the Phoenix Elementary School District. See Petitioner’s Exhibits 2 & 6. The Petitioner has also taught as a substitute teacher at the Charter Copper Canyon Academy and the Charter Academy for the Performing Arts. See Petitioner’s Exhibits 2 & 6. The Petitioner is not currently teaching. The record is not entirely clear on this point but apparently the Petitioner’s felony conviction has affected her qualifications for teaching.

14. The Petitioner testified that she was incarcerated (in August of 1998) for four months at the women’s prison at Perryville in Goodyear, Arizona. See Petitioner’s Exhibit 2, page 7. The Petitioner testified that she taught classes to other inmates while incarcerated. Id. The Petitioner was ultimately transferred to a minimum security rehabilitation facility in Marana, Arizona. Id. The Petitioner successfully completed several classes and a 12 step program while incarcerated at the Marana rehabilitation facility. See Petitioner’s Exhibit 5.

15. The Petitioner testified that she is currently appealing her Superior Court felony conviction. The Petitioner testified that she has abstained from alcohol since 1998. The Petitioner is not currently attending any alcohol rehabilitation programs (i.e. AA). The Petitioner conceded that driving while under the influence of alcohol poses a threat to the safety of the public.

16. The Petitioner requested that her real estate person’s license be suspended until the outcome of the appeal of her felony conviction. The Petitioner’s attorney wrote that the appeal process may last another 6 to months. See Petitioner’s Exhibit 3. The Petitioner conceded that her license should be revoked if her appeal fails.

CONCLUSIONS OF LAW

1. The Department has jurisdiction over the Petitioner and the subject matter of this case pursuant to A.R.S. §32-2108, et seq.

2. The Department 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).

3. The Department has the discretion to revoke or deny the renewal of the Petitioner’s real estate salesperson’s license if: (1) the Petitioner has been convicted in a court of competent jurisdiction of a felony or a crime of moral turpitude; or (2) the Petitioner is not a person of honesty, truthfulness and good character. A.R.S. §32-2153(B)(2) &(7).

4. The undersigned Administrative Law Judge concludes that the Petitioner has been convicted in a court of competent jurisdiction (i.e. the Municipal Court of Phoenix and the Superior Court of Arizona in the County of Maricopa) of a felony or a crime of moral turpitude within the meaning of A.R.S. §32-2153(B)(2) as set forth in Findings of Fact ## 2, 3, 5 & 7.

5. The undersigned Administrative Law Judge also concludes that the Petitioner’s behavior in 1996 shows that the Petitioner was not a person of good character within the meaning of A.R.S. §32-2153(B)(7) as set forth in Findings of Fact ## 2, 3, 5 & 7.

6. The undersigned Administrative Law Judge concludes that grounds do exist to uphold the Department’s summary suspension of the Petitioner’s real estate salesperson’s license pursuant to A.R.S. §§32-2157(B) and 32- 2153(B)(2),(7). The undersigned Administrative Law Judge further concludes that grounds do exist to revoke the Petitioner’s real estate salesperson’s license pursuant to A.R.S. §32-2153(B)(2),(7).

7. The undersigned Administrative Law Judge concludes that driving while intoxicated is a behavior that poses a great threat to the safety and welfare of the public. A real estate salesperson requires the use of an automobile to successfully show homes and meet with clients. A real estate salesperson may actually spend more time in his automobile on a given day than at his office. For some real estate salespersons, an automobile is an office on wheels. To allow a real estate salesperson with two alcohol related convictions to actively pursue her real estate profession is a tragedy waiting to happen. RECOMMENDED DECISION

The undersigned Administrative Law Judge recommends that the (1) Department’s summary suspension of the Petitioner’s real estate salesperson license be upheld and that (2) the Petitioner’s real estate salesperson’s license be revoked.

The undersigned Administrative Law Judge further recommends that a civil penalty not be issued against the Petitioner because (1) the Assistant Attorney General did not request a civil penalty at the hearing in this matter, and (2) the Petitioner has limited resources at this time.

Done this day, April 22, 1999.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

Mr. Jerry Holt 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 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826