ALJDEC

99A-123-REL · Department of Real Estate · 1999-12-08

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 8, 1999.

APPEARANCES: The Petitioner, Linda Rose, appeared in her own behalf.

The Arizona Department of Real Estate (herein called the “Department”) was represented by Assistant Attorney General, Michael T. Denious, 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 early August, 1999, Petitioner, Linda Rose, completed and 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. The Petitioner had received proper credit for all necessary educational courses and had successfully passed the required salesperson’s examination. She was not shown to have lacked either the experience or the competence necessary for licensure, and the prior denial action by the Department was in no way based upon such factors.

3. It was not disputed, as fully disclosed by Linda Rose in her answer to a specific question on the license application, that she had pleaded guilty to and was convicted for a misdemeanor offense of simple assault and also for a summary offense of Disorderly Conduct. She had committed the underlying actions upon which such convictions were based in the State of Pennsylvania on or about January 25, 1999. The judgment of conviction was entered by a Pennsylvania Court on May 24, 1999.

4. Irrespective of the motivation or reasons prompting Ms. Rose’s plea agreement, her conviction for assault and a related offense may not properly be collaterally attacked in these administrative proceedings. In any event, although there appeared to have been some minor disagreement with respect to the reported versions describing the circumstances of Petitioner’s arrest and behavior, her plea of guilty was to a formal complaint alleging that, after having been taken into custody by several police officers, placed in restraints and transported to a hospital, she had caused an injury to one of the police officers by biting his hand. The impact of her guilty plea agreement, as well as her sworn testimony and her written statement filed together with her license application, effectively admits the truth of all such uncontroverted allegations.

5. The nature of the assault offense for which Petitioner was convicted is further found to constitute a crime involving violence directed toward another individual.

6. It was demonstrated under the testimony presented at the administrative hearing that the charged and admittedly inappropriate criminal activity was most probably the direct result of Petitioner’s consuming of alcoholic beverages with friends during a social gathering. This instance of drinking occurred following a prolonged time period of sobriety and despite her known then-existing condition of being a recovering alcoholic. The antagonistic and uncontrollable effects upon her behavior resulting from her alcohol consumption on this occasion were apparently exacerbated by Petitioner’s taking of certain prescription medications at that time to alleviate tension or depression.

7. The Court imposed a sentence consisting solely of a one-year probation period, also requiring the payment by Petitioner of approximately $500.00 representing court and criminal justice administration costs. As of the time of this administrative hearing, Petitioner was shown to have made periodic payments in satisfaction of all but $80.00 of the imposed requirement as to payment of costs. Her probation is due to terminate in late May, 2000.

8. There was no evidentiary indication that Linda Rose had experienced any further criminal or behavioral problems nor that she has indulged in any alcoholic drinking since the January, 1999 incident. In fact, she continues to periodically attend support group meetings and also to consult a medical specialist on an as-needed basis. The above-described criminal misdemeanor activity appears to have been a single, isolated instance and the only prior conviction or arrest on the part of this license applicant.

9. Although only a little more than one-half of the imposed probation period has elapsed, leaving slightly less than six months still to run, it appears to be highly probable that Ms. Rose will complete her probation successfully. Moreover, perhaps

due to her permanent move to the State of Arizona, for which she had sought and obtained specific permission from Pennsylvania authorities, no reporting obligations or other supervisory monitoring of her activities appear to be currently applicable as part of her probation.

10. Petitioner continues to display admirable diligence and competence in her business and social relationships, having held several positions of responsibility both prior to and during her probation period. She continues to be motivated and dedicated to establishing an ongoing and consistent record of excellent conduct and behavior patterns. Her praiseworthy efforts in this regard have not only helped her to remain free of problems after the criminal incident but also have earned her the respect and support of her employers and fellow workers in her quest to remain a law-abiding and productive member of the community. Moreover, credible and persuasive evidence of an overall course of conduct reflecting very favorably upon this Petitioner’s personal character both prior to and subsequent to committing a criminal offense tends to support a finding that she possesses a substantial measure of good character which should not be and is not wholly erased or significantly diluted by her single instance of criminal behavior.

11. While the sincere and continuing 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. Rose to receive the license for which she is presently applying.

12. Notwithstanding all of the foregoing mitigating factors, and mindful of Ms. Rose’s significant progress and demonstrated success in controlling her behavior patterns and responses, resulting from her ongoing attention to dealing with her

alcohol-related problems in a manner designed not to repeat her past mistake, it is found and determined that the relatively recent date of Petitioner’s criminal misconduct, as well as the gravity of the act that precipitated the finalized criminal proceedings, cannot be wholly overlooked and must be balanced against her undeniably good progress.

13. 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 recent criminal record, it is further found that insufficient time has elapsed since her conviction so as to realistically and adequately measure the extent and permanence of her rehabilitation. Consequently, the action of the Commissioner’s licensing department, in concluding that Ms. Rose’s entitlement to licensure was not at this time sufficiently demonstrated, may not properly be held to have been, in any way, arbitrary or unjustified.

14. Nothing in this decision and recommendation is intended to indicate that Ms. Rose is permanently barred or disqualified from ever holding a real estate salesperson’s 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 criminal offenses 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 grounds, as expressly set forth in A.R.S. §32-2153(B)(10),[1] existed and still exist for the Department to have denied the pending license application submitted by Petitioner. More specifically, her prior misdemeanor conviction was based upon and indicative of conduct constituting a crime relating to violence upon another individual in violation of applicable Pennsylvania law.

3. With respect to the Department’s alternative or additional basis for denial of Petitioner’s application, it is concluded that her single instance of criminal misconduct does not automatically and permanently brand her as a person with bad character. On the contrary, abundant evidence of Petitioner’s good character was presented at the hearing, all of which serves to negate any disqualification for licensure pursuant to the provisions of A.R.S. §32-2153(B)(7), which subsection mandates that all applicants be persons of honesty, truthfulness and good character.

4. Because of the nature, gravity and time of Petitioner’s criminal activity and conviction, it must be held that she has not sustained her burden of proving that she is presently entitled to the real estate salesperson’s license sought hereunder. However, any disqualification of Ms. Rose to be granted a real estate salesperson’s license at this time 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, Linda Rose.

Dated: December 14, 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] This statutory subsection provides, in pertinent part, that the Commissioner may deny issuance of a license when it appears that the applicant has “violated any … state law … that relates to … violence against another person …”

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826