ALJDEC

99A-H1995-REL · Department of Real Estate · 1999-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

On February 18, 1999, a hearing was held on the Petitioner’s Appeal of the Department’s denial of the Petitioner’s application for a salesperson’s license. Assistant Attorney General Michael T. Denious appeared on behalf of the Arizona Department of Real Estate (the “Department”). Stacie R. Shosted 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

A. Background 1. On or about November 3, 1998, Stacie R. Shosted (the “Petitioner”) submitted an application (the “Application”) for a real estate salesperson’s license to the Department of Real Estate (the “Department”). See State’s Exhibit A.

2. On the Application, the Petitioner disclosed convictions of Possession of a Dangerous Drug; Criminal Damage; Possession of Burglary Tools; and Possession of Drug Paraphernalia. See State’s Exhibit B.

3. On or about July 13, 1994, the Petitioner was arrested by the Cottonwood Police Department for Criminal Damage and False Information. See State’s Exhibit C.

4. On or about July 21, 1994, an Indictment was issued in State of Arizona v. Stacie R. Shosted and Eric Shawn Taggart, Yavapai County Superior Court No. CR994-0230, charging the Petitioner with recklessly defacing or damaging property, to-wit: mail boxes of the United States Postal Service, causing damage in an amount of $250 or more but less than $2,000; knowingly possessing or using a dangerous drug, to-wit: Methamphetamine; knowingly possessing equipment and chemicals for the purpose of manufacturing Methamphetamine; using or possessing with intent to use, drug paraphernalia; and possessing an explosive, tool, instrument or other article adapted or commonly used for committing any form of burglary. See State’s Exhibit D1.

5. On or about May 8, 1995, the Petitioner pleaded guilty to Criminal Damage, a Class 6 Felony; Possession of Dangerous Drugs, a Class 4 Felony; Possession of Drug Paraphernalia, a Class 6 Felony; and Possession of Burglary Tools, a Class 6 Felony. See State’s Exhibit D2.

6. On or about June 5, 1995, the Court entered a Judgment and Sentencing Order convicting the Petitioner of Criminal Damage, a Class 6 Open-ended Felony; Possession of Dangerous Drugs, a Class 4 Open-ended Felony; Possession of Drug Paraphernalia, a Class 6 Open-ended Felony; and Possession of Burglary Tools, a Class 6 Open-ended Felony. See State’s Exhibit D6.

7. The Court suspended imposition of sentence and placed the Petitioner on probation for a period of three years until June 5, 1998. As terms of probation, the Petitioner was ordered to be incarcerated in the Yavapai County jail for a period of 86 days, to pay restitution of $100.00 and to pay a fine and surcharge of $1,570.00. See State’s Exhibit D6.

8. On or about July 28, 1998, the Petitioner was discharged from probation. The Court ordered that all of the Petitioner’s offenses be designated as Class 1 Misdemeanors. See State’s Exhibits D7, D8 & D9.

9. On December 4, 1998, the Department sent a letter by certified mail to the Petitioner notifying her of the Department’s decision to deny her application for a real estate salesperson’s license. See State’s Exhibit E.

10. On or about December 31, 1998, the Petitioner timely requested an administrative hearing to appeal the Department’s decision. See State’s Exhibit F.

B. The Witnesses

11. The Petitioner is currently 24 years old. The Petitioner’s arrest occurred when she was 19 years old. The Petitioner testified that she started using drugs when she was 16 years old. The Petitioner testified that she “got in with the wrong crowd” when she was a teenager. The Petitioner testified that she takes full responsibility for her criminal actions. The Petitioner testified that she stopped using drugs when she was incarcerated. The Petitioner testified that being incarcerated was a blessing in disguise.

12. The Petitioner testified that she successfully served her prison sentence and probation. The Petitioner testified that she attends Narcotics Anonymous (“NA”) on a weekly basis. The Petitioner testified that she also sees a psychiatrist every 2 months and a counselor every week. The Petitioner testified that she has “grown up” since incarceration and has worked extremely hard to move her life in a positive direction. The Petitioner testified that she would like the opportunity to be a more productive member of society.

13. The Petitioner has been employed with Vistana West, Inc. (“Vistana”) since October of 1996. Vistana is a company that markets and develops resort property. Vistana attracts potential owners and customers to the resort property through various marketing promotions. The Petitioner’s job has been to meet and greet the prospective owners and customers. She coordinates barbecues, breakfasts and other forms of entertainment for the prospective owners and customers. In essence, the Petitioner’s job has been to make the prospective owners and customers happy enough to ultimately purchase the resort property through time shares. The Petitioner now desires to move up from marketing to sales.

14. Donna Dufresne has been licensed as a real estate salesperson in Arizona for 9 years. Ms. Dufresne is the Resort Manager for Villas Cave Creek. Ms. Dufresne has worked with the Petitioner. Ms. Dufresne testified that the Petitioner is extremely reliable and trustworthy. Ms. Dufresne testified that the Petitioner has routinely handled money for customers and clients. Ms. Dufresne testified that the “books have always balanced” at the end of the day. Ms. Dufresne testified that the Petitioner is wonderful with the clients and customers.

15. James Danz is the Vice President of Marketing for Vistana, Inc. Mr. Danz has 14 years of experience as a real estate salesperson in California and Arizona. Mr. Danz worked directly with the Petitioner from October of 1996 through September 1998. Mr. Danz testified that the Petitioner is a hard worker who has put in long hours at Vistana, Inc. Mr. Danz testified that the Petitioner has been a reliable and trustworthy employee who has had no “bad blemishes” on her record. Mr. Danz testified that the Petitioner has successfully advanced her way up to a salesperson position at Vistana Inc. Mr. Danz testified that the Petitioner possesses the qualifications to be a successful real estate salesperson.

16. Don Rumble is the Director of Owner and Guest Services for Vistana, Inc. Mr. Rumble has been a real estate salesperson for over 12 years. Mr. Rumble has known the Petitioner since 1996. Mr. Rumble has always encouraged the Petitioner to move up from marketing to sales at Vistana, Inc. Mr. Rumble testified that the Petitioner is a hard worker who is totally dependable and trustworthy. Mr. Rumble testified that the Petitioner always receives excellent comments from the customers and clients.

17. Mr. Rumble testified that he has so much confidence in the Petitioner that he would vow to take personal responsibility for the Petitioner’s actions as a real estate salesperson. Mr. Rumble testified that he will personally train the Petitioner and review all of her work as a real estate salesperson at Vistana, Inc. Mr. Rumble testified that Vistana, Inc. also has a strong quality assurance program for new real estate salespersons. This program includes (1) a chain of command that will review and critique the Petitioner’s work; (2) weekly meetings to discuss current trends and events in the real estate market; and (3) verification of the Petitioner’s work by Mr. Rumble and Vistana, Inc.’s Contracting Department.

18. Paul Shosted is the Petitioner’s older brother and co-worker at Vistana, Inc. Mr. Shosted has been a real estate salesperson in Arizona for 9 years and in Colorado for 3 years. Mr. Shosted testified that the Petitioner was raised in a very strict household. Mr. Shosted testified that the Petitioner rebelled in her teenage years. Mr. Shosted testified that the Petitioner “got in with the wrong crowd.” Mr. Shosted testified that the Petitioner’s incarceration was the “wake up call” that the Petitioner needed to turn her life around. Mr. Shosted testified that the Petitioner has strong support from her family.

19. Mr. Shosted testified that the Petitioner appears to be fully rehabilitated. Mr. Shosted testified that the Petitioner is now a productive member of society who is a reliable and trustworthy employee at Vistana, Inc. Mr. Shosted testified that the Petitioner is a hard worker. Mr. Shosted testified that the Petitioner regularly handles credit cards through a merchant account and has had no complaints about the misuse of these cards.

20. Cynthia Krauss is the Petitioner’s counselor and psychotherapist. Ms. Krauss testified that the Petitioner attends therapy every week and never misses an appointment. Ms. Krauss testified that the Petitioner is also seeing a licensed psychiatrist on a monthly basis. Ms. Krauss testified that the Petitioner now has a “sense of conscious” and a “desire to do good.”

21. The undersigned Administrative Law Judge finds that the Petitioner and all of her witnesses are extremely credible individuals.

CONCLUSIONS OF LAW

1. The Petitioner 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).

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

3. On or about June 5, 1995, the Petitioner was convicted in a court of competent jurisdiction in the State of Arizona of a crime of moral turpitude (i.e. possession of dangerous drugs and burglary tools) within the meaning of A.R.S. §32-2153(B)(2) as set forth in Findings of Fact ##2 through 6.

4. The Petitioner’s criminal behavior in 1994 shows that the Petitioner was not a person of good character during that time period within the meaning of A.R.S. §32-2153(B)(7) as set forth in Findings of Fact ##3 through 6.

5. The Petitioner’s behavior from June of 1995 through the present shows that the Petitioner is now a person of honesty, truthfulness and good character within the meaning of A.R.S. §32-2153(B)(7) as set forth in Findings of Fact ##11 through 21. The Petitioner has made a remarkable turnaround in her life and appears to be a positive influence and productive member in our society. The Petitioner has led a responsible and productive life since 1995 despite having numerous opportunities to deceive or hurt the public.

6. Grounds certainly do exist to deny the Petitioner’s Application pursuant to A.R.S. §§ 32-2153(B)(2) & (7). However, the undersigned Administrative Law Judge concludes that the Petitioner has sustained her burden of proving that she possesses the requisite qualifications to be licensed by the Department as a real estate salesperson for the following reasons:

A. The Petitioner appears to be a very honest and credible individual; B. The Petitioner truthfully and honestly disclosed her conviction on her Application; C. The Petitioner’s crimes were all ultimately designated as misdemeanors; D. The Petitioner committed the crimes when she was only a teenager. The undersigned Administrative Law Judge is convinced that the Petitioner has matured considerably since her incarceration; E. The Petitioner has had no other convictions or arrests since her conviction 4 years ago; F. The Petitioner has been sober for five years. The Petitioner attends NA meetings on a weekly basis; G. The Petitioner has the foresight to visit a therapist and psychiatrist on a regular basis; H. The Petitioner has been successfully employed at Vistana, Inc. for three years. She has had constant contact with the public since 1996 with no apparent complaints regarding her character, honesty or integrity; I. The Petitioner successfully served her sentence, completed her probation, performed her community service work hours, and has paid restitution; and J. The Petitioner has strong, positive support from her family and colleagues.

RECOMMENDED DECISION

Grounds certainly existed for the Department to deny the Petitioner’s Application on December 4, 1998. However, in light of the evidence presented at the February 18, 1999 hearing, the undersigned Administrative Law Judge respectfully recommends that the Department’s denial of the Petitioner’s Application for a salesperson’s license be reversed. The Petitioner’s Application should be granted.

Done this day, March 1, 1999.

______________________________________ Casey J. Newcomb Administrative Law Judge

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

Department of Real Estate Mr. Jerry Holt 2910 North 44th Street, Ste. 100 ATTN: Bonnie Hollon Phoenix, AZ 85018

By ___________________________

-----------------------

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