ALJDEC

99A-127-REL · Department of Real Estate · 1999-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 16, 1999; 9:10 A.M.; Phoenix, Arizona APPEARANCES: Petitioner: Irene Catherine Martin Arizona Department of Real Estate: Steven J. Duplissis, Esq., Assistant Attorney General ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr.

This is an appeal from the denial of an application for a real estate salesperson’s license pursuant to Arizona Revised Statutes (A.R.S.) §§ 32- 2153(B)(2) and -(B)(7). Based upon the evidence presented at the hearing, Administrative Law Judge George A. Schade, Jr. submits this Recommended Decision and Order to the Commissioner (Commissioner) of the Arizona Department of Real Estate (Department). FINDINGS OF FACT PROCEDURAL HISTORY 1. On August 18, 1999, Ms. Irene Catherine Martin submitted to the Department an original application for a real estate salesperson’s license. Ms. Martin disclosed on her application two July, 1995, convictions for drug offenses and the terms of her sentences. On September 20, 1999, the Department notified Ms. Martin of its intent to deny her application. 4. On October 25, 1999, Ms. Martin requested an administrative hearing to appeal the Department’s decision. 5. On November 10, 1999, the Department issued a Notice of Hearing on Denial of License setting a hearing on December 16, 1999. Pursuant to A.R.S. § 41-1092.01, the hearing was assigned to the Office of Administrative Hearings. 6. The Notice of Hearing alleged grounds existed for the denial of Ms. Martin’s application pursuant to A.R.S. §§ 32-2153(B)(2) and -(B)(7). 7. On December 16, 1999, a hearing which lasted one hour and ten minutes was held. The Department presented ten exhibits. Ms. Martin testified, and she submitted nine exhibits consisting of nine letters of character reference. THE CONVICTIONS 8. Paragraphs 4 through 15, inclusive, of the Department’s Notice of Hearing describe both criminal offenses and convictions, and these paragraphs, with the exception of the last sentence of Paragraph 15, are adopted and incorporated by reference in these findings of fact. Ms. Martin engaged in the sale of crystal methamphetamine, an illegal narcotic drug, for about one year prior to her second arrest in December, 1994. She was about to complete a drug transaction when she was arrested in September, 1994, leading to the first conviction. During that time, Ms. Martin was using both crystal methamphetamine and marijuana (used as a relaxant). She maintained her use by selling methamphetamines. 11. The reports of the Mesa Police Department for both arrests show that Ms. Martin was untruthful and deceptive in her actions and statements to the arresting officers. Department’s Exhibits C and F. When Ms. Martin was arrested the second time in December, 1994, she was found with her then seventeen year old son, who was aware of his mother’s involvement in selling illegal narcotic drugs. Prior to her arrests in 1994, Ms. Martin had used marijuana since she was fifteen years old. She has not used marijuana for approximately two years. 14. Prior to her arrests in 1994, Ms. Martin had used methamphetamines for approximately three years. Department’s Exhibit G (Presentence Investigation, page 6). 15. While she was on probation for the 1995 convictions, Ms. Martin tested positive for marijuana in two different urinalysis tests. Consequently, she was placed in a substance abuse counseling program on June 10, 1997. 16. Since her convictions on July 12, 1995, Ms. Martin has not had any other criminal matters. MS. MARTIN 17. Ms. Martin is forty-one years old, and has lived in Mesa, Arizona, since 1974. 18. Ms. Martin has three children, of whom two are adults. Her three children live with her. 19. Ms. Martin graduated from Mesa High School in 1976. She was the Senior Class President. 20. After high school, Ms. Martin attended the Royal College of Beauty for three months and earned a certificate as a nails technician. She has not pursued any other professional or academic education after high school. 21. Ms. Martin holds a license as a nails technician from the Arizona Board of Cosmetology. She has held this license for approximately fifteen years. 22. Ms. Martin has worked as a nails technician reasonably continuously since obtaining her license, but she was not working as a technician for some time prior to the time of her first arrest in 1994. 23. Currently, Ms. Martin works as an independent contractor nails technician in a salon in Mesa, Arizona. She has a clientele of seventy-five customers. 24. Ms. Martin earns $700.00 weekly as a nails technician. In her opinion, she has a successful business as a nails technician. 25. Ms. Martin completed ninety hours of real estate training. She took the Department’s real estate salesperson’s examination three times before she successfully passed. 26. Ms. Martin wishes to start her real estate career selling timeshares for a company in Sedona, Arizona. She testified she has the opportunity of a position with this company. She testified she also has another potential opportunity with a real estate company in Mesa, Arizona. 27. Ms. Martin wants to be a real estate salesperson because she “loves homes” and she wishes to improve her financial situation. She enjoys “looking at homes,” and she believes she can increase her financial income by selling real estate. 28. Ms. Martin does not plan to leave her work as a nails technician until her real estate career permits it. 29. Ms. Martin presented nine letters of character reference. The letters state Ms. Martin is competent as a nails technician, friendly, dependable, sociable, and trustworthy. 30. Ms. Martin has not had any experience in professional sales or in an environment associated with the real estate industry. CONCLUSIONS OF LAW A. R. S. § 32-2153 The pertinent provisions of A. R. S. § 32-2153 are: “B. The commissioner may…deny the issuance of a license…when it appears that the…applicant therefor has: *** 2. Been convicted in a court of competent jurisdiction in this or any other state of a felony or of any crime of forgery, theft, extortion, conspiracy to defraud, a crime of moral turpitude or any other like offense. *** 7. Not shown that the…applicant is a person of honesty, truthfulness and good character.”

CONCLUSIONS OF LAW 1. The Commissioner has authority to enter an appropriate order in this matter. A.R.S. §§ 32-2107 and 32-2153. 2. The Commissioner’s authority to approve or deny an original application for a real estate salesperson’s license is discretionary. A.R.S. § 32-2153(B). 3. Being the applicant for a license, Ms. Martin has the burden of proof in this proceeding. A.R.S. § 41-1065. 4. The standard of proof is the preponderance of the evidence. Culpepper v. State, 187 Ariz. 431, 930 P. 2d 508 (App. 1996), review denied (1997); Troutman v. Valley Nat. Bank of Arizona, 170 Ariz. 513, 826 P.2d 810 (App. 1992). 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). On July 12, 1995, Ms. Martin was convicted of possession of dangerous drugs, a class 4 felony. The Commissioner may deny an application when the applicant has been convicted of a felony. A.R.S. § 32-2153(B)(2). 6. The preponderance of the evidence does not show that, at this time, Ms. Martin is not “a person of honesty, truthfulness and good character.” A.R.S. § 32-2153(B)(7). Her actions and statements during her two arrests show that Ms. Martin was untruthful and deceptive, but the evidence does not support a conclusion that she is at this time a dishonest and untruthful person. 8. The evidentiary record viewed as a whole supports the denial of Ms. Martin’s application due to her conviction of the felony of possession of dangerous drugs. Ms. Martin has fulfilled all the terms of her sentences and undergone substance abuse counseling. She presented good character reference letters. But only a little more than a year has passed since she completed her probation, and about two years since she completed substance abuse counseling following a relapse. She was a user and seller of methamphetamines (use for three years and sale for at least one year prior to her arrest in September, 1994) and a user of marijuana (for over twenty years prior to her September, 1994, arrest). One of her convictions was a felony for possession of dangerous drugs. During her probation, two urinalysis tests were positive for marijuana. It is premature to conclude with reasonable and fair certainty that Ms. Martin has fully overcomed her problems and is ready and suited for a career in real estate. Quite possibly, if she continues her personal rebuilding, in another year her situation may be better and stronger. RECOMMENDED ORDER It is recommended that the Commissioner deny this appeal and affirm the denial of Ms. Martin’s application for a real estate salesperson’s license. SUBMITTED this 20th day of December, 1999.

George A. Schade, Jr. Administrative Law Judge

The original Recommended Decision and Order of the Administrative Law Judge was mailed on December 20, 1999, for distribution to the parties, to:

Jerry A. Holt Real Estate Commissioner Arizona Department of Real Estate 2910 North 44th Street, Suite 100 Phoenix, Arizona 85018

George A. Schade, Jr.

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