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Missouri Real Estate Commission v. Held

Court of Appeals of Missouri, Western District, Second Division

May 28, 2019

WILLIAM L. HELD, Appellant.

          Appeal from the Circuit Court of Cole County The Honorable Jon E. Beetem, Judge

          Before: Cynthia L. Martin, P.J., and Alok Ahuja and Gary D. Witt, JJ.

          ALOK AHUJA, JUDGE.

         William Held applied for a real estate salesperson license in October 2015. The Missouri Real Estate Commission denied his application because Held had a number of felony criminal convictions for offenses involving dishonesty and moral turpitude. Held applied for review by the Administrative Hearing Commission ("AHC"). Following an evidentiary hearing, the AHC granted Helds application for licensure, subject to a three-year term of probation. The Real Estate Commission petitioned for judicial review in the Circuit Court of Cole County. The circuit court reversed the AHC's decision, finding that it was in excess of the AHC's statutory authority, and that it was unsupported by competent and substantial evidence. Held appeals. We reverse the circuit court's judgment and reinstate the AHC's decision granting Held a probated license.

         Factual Background

         Held began working for Camden Properties, LLC, d/b/a Keller Williams Realty West, in July 2015. He worked under a real estate agent in the office, handling the agent's administrative duties and marketing. In October 2015, Held applied to the Real Estate Commission for a real estate salesperson license. Before applying, Held had passed the Missouri real estate salesperson examination and had completed all of the required coursework to obtain a license.

         Held has an extensive criminal history. Between 1998 and 2014, he pleaded guilty to, and was convicted of, twenty-one felonies. The felonies included drug possession and trafficking offenses; stealing; receiving stolen property; unlawful possession of a weapon; and resisting arrest. He was on probation for several of those offenses at the time he applied for his real estate salesperson license.

         On February 23, 2016, the Real Estate Commission denied Held's license application. Based on his numerous criminal convictions, the Commission concluded that Held lacked the requisite moral character, reputation for honesty, integrity and fair dealing, and competency to transact the business of a real estate salesperson in a manner which protected the interests of the public.

         On February 26, 2016, Held filed a complaint with the AHC, seeking review of the Real Estate Commission's decision. A hearing was held before an AHC Commissioner on March 15, 2017. At the hearing, Held testified that all of his criminal convictions were related in some manner to his substance abuse problems, which began when he was prescribed opioid pain medication following an injury playing college football. Held testified that he had been drug-free since July 2013, and described the various drug treatment programs in which he had participated, and in which he continued to participate. At the time of the hearing, Held remained on probation for several of his criminal convictions, which was scheduled to end in November 2017. (After the hearing, Held successfully completed probation and was discharged from supervision.)

         The AHC issued its decision granting Held a probated license on December 1, 2017. With respect to Held's character, the AHC found:

We believe Held's criminal past does indicate a disrespect for the law and the rights of others, tending to show a lack of good moral character. However, there is no evidence that he has failed to comply with the terms of his supervised probation, and we must take into account that over three years have passed since his most recent conviction. Held not only participated in mandatory restorative justice and addiction treatment during his incarceration, but also sought out an immersive yearlong voluntary program to address substance abuse and modify the behaviors he acknowledged to be a problem. Upon completion, his success allowed him the opportunity to become a facilitator in the program in order to pass on what he had learned. After his release, Held participated in a three-month intensive aftercare program that included regular drug testing. He continues to attend Alcoholics Anonymous meetings weekly. Held does not consider himself to be "cured" of his substance abuse: "I know that's a process that I do daily. It will be the process that I have to do the rest of my life. I take pride in that." We believe Held has accepted responsibility for his past, and taken affirmative steps to improve his life despite significant adversity. In sum, he has shown that he is presently a person of good moral character.

(Record citations omitted.) The AHC also found that Held has a good reputation for honesty, integrity, and fair dealing, based on the testimony of Held's sponsoring broker, as well as Held's own testimony. Finally, because Held had passed the necessary examinations and completed the coursework required for licensure, the AHC found that he was competent to transact the business of a real estate salesperson in a manner which safeguarded the public interest.

         The AHC concluded that Held met the mandatory qualifications for a real estate salesperson's license under § 339.040.1 It also found, however, that discretionary grounds existed to deny Held a license under §§ 339.080.[1] and 339.100.2(18), because (1) his criminal convictions were reasonably related to the functions and duties of a real estate salesperson; (2) his stealing convictions involved dishonesty; and (3) his convictions included offenses involving moral turpitude. Despite the fact that grounds existed to deny Held a license, the AHC concluded that it had discretion under § 324.038 to issue him a probated license. Exercising this statutory discretion, the AHC granted Held's application for licensure as a real estate salesperson subject to three years' probation. The AHC specified that

[t]he conditions of [Held's] probation should include Held's employer maintaining electronic records of his entering and leaving homes of prospective sellers and making them available for inspection by [the Real Estate Commission] at any time. Held should not be permitted to enter a home unaccompanied when no system is in place to create such an electronic record (as with properties listed with brokers who use a combination lockbox for entry). Held should also be required to report any arrest to [the Real Estate Commission] within 48 hours, and submit to drug screening at the discretion of [the Commission].

         The Real Estate Commission appealed the AHC's decision to the circuit court. The circuit court reversed the AHC's decision, finding that the AHC did not have statutory authority to issue Held a probated license, and that the AHC lacked competent and substantial evidence to find that Held possessed the requisite moral character and reputation for honesty, integrity, and fair dealing.

         Held appeals.

         Standard of Review

On an appeal from the trial court's review of an AHC decision, we review the decision of the AHC, not the judgment of the trial court. The AHC's decision will be upheld unless it is not supported by competent and substantial evidence upon the whole record; it is arbitrary, capricious, or unreasonable; it is an abuse of discretion; or it is otherwise unauthorized by law or in violation of constitutional provisions. We review the AHC's conclusions on the interpretation and application of the law, however, de novo. Atwell v. Fitzsimmons, 452 S.W.3d 670, 675-76 (Mo. App. W.D. 2014) (citations and internal quotation marks omitted).

         Because our analysis focuses on the correctness of the AHC's decision, Rule 84.05(e) provides in these circumstances that "[t]he party aggrieved by the agency decision"-here the Real Estate Commission-"shall file the appellant's brief and reply brief." Although we review the decision of the AHC, our mandate "reverses, affirms or otherwise acts upon the judgment of the trial court." Bird. ...

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