ALJDEC

99A-H1989-REL · Department of Real Estate · 1999-03-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 10, 1999. APPEARANCES: Moira McCarthy, Assistant Attorney General, appeared representing the Department of Real Estate. James A. Worman, Respondent, failed to appear.

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining both whether Respondent has violated state law as alleged by the Arizona Department of Real Estate (“Department”) and whether grounds exist allowing the Department to take disciplinary action against Respondent. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. In January 1997, Respondent submitted to the Department an application for a temporary campground salesperson’s license. The Department issued Respondent a temporary campground salesperson’s license. Subsequently, on March 6, 1997, Respondent submitted to the Department an application for a regular campground salesperson’s license. The Department issued Respondent a regular campground salesperson’s license. 2. The instant matter arises out of the Department’s investigation discovering that Respondent has several criminal arrests and convictions between 1989 and 1990. The Department charges, in part, that Respondent failed to disclose these events in either his application for a temporary campground salesperson’s license or his application for a regular campground salesperson’s license. The Department’s Complaint alleges grounds for the revocation of Respondent’s licenses. 3. Question 1 on the Original Licensure Questionnaire attached to the temporary license application asks: Have you ever been convicted of any felony, misdemeanor or other crime OR do you have any formal charges pending?

Respondent answered “No” to this question. (Department’s Exhibit A). 4. Question 1 on the licensure questionnaire attached to the regular license application asks: Have you ever been found guilty of any felony, misdemeanor or and other crime?

Respondent answered “No” to this question. (Department’s Exhibit B). 5. The preponderance of evidence demonstrates, however, that Respondent has been convicted of three misdemeanor criminal convictions since 1989. On July 20, 1989, after being arrested, Respondent pled guilty to a charge of Public Sexual Indecency, a class 1 misdemeanor, in Mesa City Court. Subsequently, in State of Arizona v. Worman, City of Mesa Case No. 8837872, the court suspended sentence and placed Respondent on unsupervised probation for 2 years, ordered him to pay a $500.00 fine, and ordered that he participate in certain treatment. 6. On February 10, 1990, after being arrested, Respondent pled guilty to a charge of Disorderly Conduct, a misdemeanor, in Mesa City Court. Subsequently, in State of Arizona v. Worman, City of Mesa Case No. 9006629, the court ordered Respondent to pay a $137.00 fine. 7. Finally, on November 13, 1990, officers from the Chandler Police Department arrested Respondent, charging him with Indecent Exposure, a class 1 misdemeanor. Subsequently, in State of Arizona v. Worman, City of Chandler Case No. 90-C154712, the municipal court accepted Respondent’s guilty plea to the charge. 8. The preponderance of the evidence establishes that Respondent intentionally failed to disclose each of the arrests and convictions noted above, as required by state law. The nondisclosures are found to be substantial misrepresentations made to the Department for the purpose of procuring licensure, and demonstrate a lack in Respondent of honesty, truthfulness and good character. 9. Upon discovery of records of the foregoing convictions, the Department attempted to contact Respondent to determine the reason for his failure to disclose the convictions in either of his applications for licensure. On September 8, 1997, the Department sent its inquiry to Respondent at his last known address. This mailing was returned to the Department marked “no forwarding order on file.” 10. The preponderance of the evidence establishes also that Respondent failed to maintain on file with the Commissioner his current residence address and failed to pay a change fee. 11. Finally, the preponderance of the evidence shows that Respondent signed for the certified mailing of the Notice of Hearing and Complaint in this matter on January 22, 1999. Accordingly, Respondent’s failure to appear at the hearing in this matter is found to be a willful failure to appear.

APPLICABLE LAW Arizona Revised Statutes §32-2153(A) provides, in part: The commissioner may suspend or revoke a license, deny the issuance of a license or deny the renewal or the right of renewal of a license issued under the provisions of this chapter if it appears that the holder or applicant, while a licensee under this chapter, within five years immediately preceding, in the performance of or attempt to perform any acts authorized by such license or by this chapter, has:

*** 3. Disregarded or violated any of the provisions of this chapter or any rules adopted by the commissioner.

Section 32-2153(B) adds, in part: The commissioner may suspend or revoke a license, deny the issuance of a license or deny the renewal or the right of renewal of a license issued under the provisions of this chapter when it appears that the holder or applicant therefor has:

1. Procured or attempted to procure a license under the provisions of this chapter for himself or another by fraud, misrepresentation or deceit, or by filing an original or renewal application which is false or misleading.

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.

3. Made any substantial misrepresentation.

*** 7. Not shown that he is a person of honesty, truthfulness and good character.

Finally, A.A.C. R4-28-301(F) requires that every licensee shall “maintain on file with the Commissioner both the address of the licensee’s principal place of business, if any, and a current residence address” and shall, within ten days of any change of address, notify the Commissioner of the change of address and pay a change fee. For any violation of the above provisions, the Commissioner may assess a civil penalty against a licensee “in an amount not to exceed one thousand dollars for each infraction.” §32-2160.01(A).

CONCLUSIONS OF LAW 1. The Department has jurisdiction over Respondent and the subject matter of this case pursuant to A.R.S. §32-2108, et seq. 2. The Department has the burden of demonstrating by a preponderance of the evidence that it may take disciplinary action against Respondent. Cf. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 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 (rev. 6th ed. 1990). 3. As a result of Respondent’s failure to disclose his arrests and convictions, as described above, Respondent has failed to comply with state law. Accordingly, the Department sustains its burden of demonstrating violations of A.R.S. §§32-2153(A)(3), (B)(1), (B)(3), and (B)(7). With respect to the Department’s allegations that Respondent violated §32- 2153(B)(2), this Judge concludes that each of Respondent’s convictions is a crime of moral turpitude, see City Court of City of Tucson v. Lee, 16 Ariz. App. 449, 452, 494 P.2d 54 (Ariz. App. 1972); that is, an “act[ ] that adversely reflect[s] on one’s honesty, integrity or personal values.” Frederickson v. Superior Court In and For County of Maricopa, 187 Ariz. 273, 274, 928 P.2d 697 (Ariz. App. 1996) (quoting Mungarro v. Riley, 170 Ariz. 589, 590, 826 P.2d 1215 (Ariz. App. 1991)). 4. As a result of Respondent’s failure to maintain on file with the Commissioner his current residence address and failure to pay a change fee, as described above, Respondent has failed to comply with state law. Accordingly, the Department sustains its burden of demonstrating a violation of §32-2153(A)(3) and A.C.C. R4-28-301(F).

RECOMMENDED DECISION In view of the foregoing, this Judge has little choice, given Respondent’s disregard of his obligations under state law, but to recommend that the Department revoke Respondent’s campground salesperson’s licenses. While facts certainly exist justifying civil penalties, in addition to revocation, this Judge recommends that the Department refrain from imposing any civil penalty. Done this day, April 1, 1999

______________________________________ Kip M. Micuda Administrative Law Judge

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

Department of Real Estate Mr. Jerry Holt 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