11-1005-17349-2
STATE OF
OFFICE OF ADMINISTRATIVE HEARINGS
FOR THE COMMISSIONER OF COMMERCE
|
In the
Matter of the Real Estate Appraiser License Application of Justin
Heinrich |
FINDINGS OF FACT,
CONCLUSIONS, AND RECOMMENDATION |
The above-entitled matter came on for
a hearing before Administrative Law Judge Barbara L. Neilson on
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,
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.
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.
STATEMENT OF ISSUES
In 2005, the Respondent was convicted of receiving
stolen property, a felony, in Hennepin County District Court. The issue presented in this case is
whether the Respondent thereby engaged in conduct that demonstrates that he is untrustworthy,
financially irresponsible, or otherwise incompetent or unqualified to act as a licensed
real estate appraiser under Minn. Stat. § 45.027, subd. 7(a)(4) (2004), and, if
so, whether the Department’s denial of his 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, Justin Heinrich, applied to the Department
of Commerce for a registered real property appraiser license on or about March
31, 2006, after completing licensing education courses and passing the
examination required by the Department. On
his application, the Respondent checked “yes” in response to a question asking
whether he had ever been charged with or convicted of any criminal offense in
any court, other than traffic violations. He provided documents relating to a criminal conviction
for receiving stolen property to the Department with his application.[1]
2.
In August of 2004, the Respondent was charged in Hennepin
County District Court with two felony counts, one alleging receipt of stolen
property and the other alleging theft of a motor vehicle. In the criminal complaint, the State alleged
that the Respondent had admitted that he stole a vehicle, removed the engine,
transmission and seats from the vehicle, and sold the engine to another person.[2] The Respondent ultimately entered a guilty
plea on January 12, 2005, to the first count of receiving stolen property, and
the second count was dismissed.[3]
3.
On April 6, 2005, the District Court entered a stay of
imposition with respect to the Respondent’s case. The Respondent was ordered to complete 30
days of “sentence to service” and pay $500.00 in restitution. He completed both of those conditions
successfully. He is currently on
Administrative Probation which is due to expire on
4.
Cheryl Costello, senior investigator with the Department of
Commerce, reviewed the Respondent’s application for a registered real property
appraiser license and documentation relating to his conviction, and determined
that his application should be denied because the Respondent’s past conviction
demonstrated that he had engaged in untrustworthy and dishonest conduct.[5]
5.
The Respondent has written a letter to the District Court
seeking an order releasing him from the stay of imposition and reducing the
felony to a misdemeanor.[6] He had not received any response to this
request by the date of the hearing in this matter.[7]
6.
At the hearing,
the Respondent expressed regret that he purchased a stolen engine and contended
that this is a mistake that anyone could make.
He contends that this conviction will not affect his work and asserts
that he is well-qualified to serve as an appraiser.[8]
7.
The Respondent
has no other criminal convictions.[9]
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 him, 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 he should be granted a license
in this matter.[10]
5.
The Commissioner
of Commerce may deny an application for a real estate appraiser’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.[11]
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 his conviction in 2005 for
receiving stolen property demonstrates that he is “untrustworthy, financially
irresponsible, or otherwise incompetent or unqualified to act under the
authority or license” of registered real property appraiser under Minn. Stat. §
45.027, subd. 7(a)(4). This conduct directly
relates to the occupation for which the license is sought and warrants the
denial of his 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:
IT
IS HEREBY RECOMMENDED: that the
Department’s denial of the Respondent’s application for a real estate appraiser’s
license be AFFIRMED.
Dated:
s/Barbara
L. Neilson
|
|
|
BARBARA
L. NEILSON |
|
Administrative
Law Judge |
Reported: Tape Recorded (not transcribed); 1 tape.
MEMORANDUM
The
Respondent entered a guilty plea to a felony charge of receiving stolen
property just 19 months ago for conduct that occurred in late 2003. The Respondent contended at the hearing that
he did not in fact steal a vehicle and that he merely got caught after making the
mistake of purchasing an engine that turned out to be stolen. However, the complaint filed by the State in
the criminal case alleges that the Respondent admitted that he stole a vehicle;
removed the engine, transmission, and seats from the vehicle before abandoning
it; and sold the engine to another individual.
The misconduct on which the conviction is based is sufficiently recent and serious in nature and sufficiently related to the types of activities involved in real estate appraisal to justify denial of the Respondent’s license application at this time. The veracity of real estate appraisers and of the appraisals they perform is obviously very important. Real estate appraisers have unfettered access to the homes and personal property of others. They also handle financial documents and serve in a fiduciary capacity. The Department has shown that the denial of the Respondent’s license application is warranted because his conduct in receiving stolen goods demonstrates that he has acted in an untrustworthy fashion at least on one occasion in the recent past. Accordingly, the Administrative Law Judge has recommended that the Department’s denial of the Respondent’s license application be affirmed.
Although the Respondent invested
a significant amount of time and money in taking the exam and educational
courses required for licensure and understandably is upset that the company
offering the courses assured him that his conviction would not pose a problem,
it appears that the Department representative to whom he spoke merely told him
that the Department considers on a case-by-case basis whether a particular conviction
should affect an applicant’s ability to be licensed. It therefore does not appear that the
Department assured him of success in the application process or otherwise
mislead him about his prospects. The
Department may wish to consider providing potential applicants with more
detailed information on their ability to submit a pre-application inquiry so
that they could find out at an earlier stage whether the Department believes
that a particular conviction would cause it to deny licensure.
B.L.N.
[1] Ex. 1; Testimony of Cheryl Costello, Justin Heinrich.
[2] Exs. 1, 2.
[3] Ex. 1 at 9.
[4] Ex. 1 at 5.
[5] Testimony of C. Costello.
[6] Ex. 5.
[7] Testimony of J. Heinrich.
[8] Ex. 1 at 3-5; Testimony of J. Heinrich.
[9] Testimony of J. Heinrich.
[10] Minn. R. 1400.7300, subp. 5.
[11] Minn. Stat. § 45.027, subd. 7(a)(4).