11-1005-17281-2

STATE OF MINNESOTA

OFFICE OF ADMINISTRATIVE HEARINGS

FOR THE COMMISSIONER OF COMMERCE

In the Matter of the Real Estate Salesperson’s License Application of

Mary Catherine Bowlin

FINDINGS OF FACT,

CONCLUSIONS, AND

RECOMMENDATION

The above-entitled matter came on for a hearing before Administrative Law Judge Barbara L. Neilson on July 7, 2006, at 9:30 a.m. at the Office of Administrative Hearings in Minneapolis, Minnesota. Michael J. Tostengard, Assistant Attorney General, 445 Minnesota Street, Suite 1200, St. Paul, Minnesota 55101-2130, appeared on behalf of the Department of Commerce ("the Department"). Mary Bowlin, 914 East Jessamine Avenue, No. 2, St. Paul, Minnesota 55106, appeared on her own behalf, without an attorney. The OAH record closed at the conclusion of the hearing on July 7, 2006.

NOTICE

This Report is a recommendation, not a final decision. The Commissioner of Commerce will make the final decision after a review of the record. The Commissioner may adopt, reject or modify the Findings of Fact, Conclusions, and Recommendations. Under Minn. Stat. § 14.61, the final decision of the Commissioner shall not be made until this Report has been made available to the parties to the proceeding for at least ten days. An opportunity must be afforded to each party adversely affected by this Report to file exceptions and present argument to the Commissioner. Parties should contact the office of Kevin Murphy, Deputy Commissioner of Commerce, 85 Seventh Place East, Suite 500, St. Paul, Minnesota 55101-2198, for information about the procedure for filing exceptions or presenting argument.

If the Commissioner fails to issue a final decision within 90 days of the close of the record, this report will constitute the final agency decision under Minn. Stat. § 14.62, subd. 2a. The record closes upon the filing of exceptions to the report and the presentation of argument to the Commissioner, or upon the expiration of the deadline for doing so. The Commissioner must notify the parties and the Administrative Law Judge of the date on which the record closes.

STATEMENT OF ISSUES

In 2001, the Respondent was convicted of aiding and abetting the offering of a forged check, which was reduced to a misdemeanor as part of the plea arrangement. In 2002, the Respondent was convicted of felony aiding and abetting check forgery. At the time the Respondent was discharged from probation in 2004, that offense was reduced to a misdemeanor. The issue presented in this case is whether the Respondent thereby engaged in conduct that demonstrates that she is untrustworthy, financially irresponsible, or otherwise incompetent or unqualified to act as a licensed real estate salesperson under Minn. Stat. § 45.027, subd. 7(a)(4) (2004), or fraudulent, deceptive and dishonest practices in violation of Minn. Stat. § 82.35, subd. 1(b) (2004), and, if so, whether the Department’s denial of her application for licensure should be affirmed.

Based upon all of the proceedings herein, the Administrative Law Judge makes the following:

FINDINGS OF FACT

1. The Respondent, Mary Catherine Bowlin, applied to the Department of Commerce for a real estate individual license on or about January 23, 2006, after completing a real estate licensing course and passing the examinations required by the State. On her application, the Respondent checked “yes” in response to a question on the application asking whether she had ever been charged with, or convicted of, or been indicted for, or entered a plea to, any criminal offense (felony, gross misdemeanor or misdemeanor), other than traffic violations, in any state or federal court. She provided documents relating to two criminal convictions to the Department with her application.[1]

2. On March 31, 2001, the Respondent was arrested in Maplewood and cited for felony forgery/possession of stolen credit cards. In April 2001, she was charged in Ramsey County District Court with one count of gross misdemeanor aiding and abetting check forgery, one count of gross misdemeanor aiding and abetting the offering of a forged check, one court of possession/sale of stolen checks, and one count of receiving/possessing stolen property. She ultimately entered a guilty plea on July 2, 2001, on the second count of offering a forged check, which was reduced to a misdemeanor. The other charges were dismissed.[2]

3. On September 27, 2001, the Respondent was arrested in West St. Paul for purchasing items with forged checks. In April, 2002, she was charged in Dakota County District Court with one felony count of aiding and abetting check forgery and one felony count of aiding and abetting the offering of a forged check. She ultimately entered a guilty plea on October 28, 2002, on the first count of aiding and abetting check forgery. She was placed on probation for 0-3 years, sentenced to serve 3 days in County Jail, and ordered to pay a fine, provide restitution, and provide 40 hours of community service. A stay of imposition was entered by the Court.[3]

4. On November 15, 2004, the Supervisor of Dakota County Community Corrections notified the Court that the Respondent had paid her share of restitution and completed all other conditions of probation, and recommended that the Respondent be discharged from probation. On November 25, 2004, the Dakota County District Court entered an order discharging the Respondent from probation. The Court ordered that her earlier offense be deemed to be a misdemeanor under Minn. Stat. § 609.13.[4]

5. Cheryl Costello, senior investigator with the Department of Commerce, reviewed the Respondent’s application for a real estate salesperson license and documentation relating to her convictions, and determined that her application should be denied because the Respondent’s past convictions demonstrated that she had engaged in untrustworthy, fraudulent, and dishonest practices. Such practices are relevant to licensure because real estate salespersons are provided access to the homes, personal property, and money of clients.[5]

6. The Respondent regrets the conduct that led to her convictions and feels remorse for her actions. She has since joined Alcoholics Anonymous and has been sober for more than three years. She has had difficulty finding permanent employment due to her criminal record. She wants to obtain her real estate salesperson license in order to get off Social Security disability and get out of debt. [6]

Based upon the foregoing Findings of Fact, the Administrative Law Judge makes the following:

CONCLUSIONS

1. The Administrative Law Judge and the Commissioner of Commerce are authorized to consider this matter under Minn. Stat. §§ 45.027, subd. 7, and 14.50.

2. Respondent received due, proper and timely notice of the charges against her, and of the time and place of the hearing. This matter is, therefore, properly before the Commissioner and the Administrative Law Judge.

3. The Department has complied with all relevant procedural legal requirements.

4. The burden of proof in this proceeding is on the Respondent to show by a preponderance of the evidence that she should be granted a license in this matter.[7]

5. The Commissioner of Commerce may deny an application for a real estate salesperson’s license if the Commissioner finds that it is in the public interest to do so and the applicant has “engaged in an act or practice, whether or not the act or practice directly involves the business for which the person is licensed or authorized, which demonstrates that the applicant or licensee is untrustworthy, financially irresponsible, or otherwise incompetent or unqualified to act under the authority or license granted by the commissioner.[8]

6. Minn. Stat. § 45.027, subd. 10, specifies that “Chapter 364 [relating to rehabilitation of those convicted of crimes] does not apply to an applicant for a license . . . where the underlying conduct on which the conviction is based would be grounds for denial . . . of the license.”

7. Respondent’s conduct as evidenced by her check forgery convictions in 2001 and 2002 demonstrates that she is “untrustworthy, financially irresponsible, or otherwise incompetent or unqualified to act under the authority or license” of real estate salesperson under Minn. Stat. § 45.027, subd. 7(a)(4), and that she has “engaged in a fraudulent, deceptive, or dishonest practice” in violation of Minn. Stat. § 82.35, subd. 1(b). This conduct directly relates to the occupation for which the license is sought and warrants the denial of her license application under Minn. Stat. § 45.027, subd. 10.

8. These Conclusions are reached for the reasons discussed in the Memorandum below, which is hereby incorporated in these Conclusions.

Based upon the foregoing Conclusions, the Administrative Law Judge makes the following:

RECOMMENDATION

IT IS HEREBY RECOMMENDED: that the Department’s denial of the Respondent’s application for a real estate salesperson’s license be AFFIRMED.

Dated: August 7, 2006

s/Barbara L. Neilson

BARBARA L. NEILSON

Administrative Law Judge

NOTICE

Pursuant to Minn. Stat. § 14.62, subd. 1, the Agency is required to serve its final decision upon each party and the Administrative Law Judge by first-class mail or as otherwise provided by law.

Reported: Tape Recorded (not transcribed); 1 tape.

MEMORANDUM

The Respondent is to be commended for her commitment to maintaining her sobriety and avoiding the repetition of the type of behavior that led to her check forgery convictions in 2001 and 2002. She also truthfully disclosed the convictions on her application for a real estate license, provided pertinent information to the Department, and made no attempt to deny her involvement in the check forgery.

However, the facts underlying the Respondent’s check forgery convictions show that the Respondent repeatedly assisted others in passing forged checks in the fairly recent past. In the Maplewood incident, the police report indicates that the Respondent admitted that she forged someone else’s name to checks she wrote in the amounts of $53.07, $54.26, and $159.70 to a liquor store, gas station, and department store in March of 2001. Even though the Respondent was arrested and charged in connection with the Maplewood incident, less than six months later she again purchased items with forged checks in West St. Paul from seven stores during two days in September of 2001, in an amount totaling more than $2,150.00.

This pattern of misconduct is directly related to the occupation for which the Respondent seeks licensure, since real estate salespersons have unfettered access to the homes, money, and personal belongings of others. The Department has shown that the denial of the Respondent’s license application is warranted because her conduct reflects “fraudulent, deceptive, or dishonest practices” under Minn. Stat. § 82.35, subd. 1(b), and demonstrates that the Respondent is “untrustworthy, financially irresponsible, or otherwise incompetent or unqualified to act” as a licensed real estate salesperson under Minn. Stat. § 45.027, subd. 7(a)(4). The misconduct is sufficiently recent and serious in nature and sufficiently related to the types of activities involved in real estate sales to justify denial of the Respondent’s license application at this time. Accordingly, the Administrative Law Judge has recommended that the Department’s denial of the Respondent’s license application be affirmed.

B.L.N.

[1] Ex. 1; Testimony of Cheryl Costello, Mary Bowlin.