ALJDEC decisions subject to certification as final

013F-121229-BTR · Board of Technical Registration · 2013-07-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 18, 2013, at 8:00 a.m. APPEARANCES: Michael Brookes (hereinafter “Applicant”) appeared on his own behalf. The Arizona State Board of Technical Registration (hereinafter the “Board”) was represented by Assistant Attorney General Elizabeth A. Campbell. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

Applicant brings this action challenging the Board’s denial of his application for registration for the practice of electrical engineering in the State of Arizona. The Board denied Applicant’s request for registration because the Board found that Applicant failed to meet the requirements of A.R.S. § 32-122.01(A)(1). Applicant disagreed with the Board’s finding. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order upholding the denial are made: FINDINGS OF FACT Applicant applied for registration of the practice of electrical engineering in the State of Arizona on or about December 17, 2012. On his application, Applicant disclosed that he had been convicted of a felony.[1] Applicant attached a letter detailing the circumstances of his felony convictions.[2] Applicant’s letter provided, in relevant part, as follows: In March of 2011, I was indicted on two counts of sexual abuse of a minor. To wit, I was accused of touching my daughter’s breast on a single occasion on or about November, 2010, and of touching my stepdaughter’s breast on a single occasion on or about October, 2003.

In lieu of trial proceedings, which I felt would subject all involved parties to extreme stress and anguish. I agreed to a plea bargain offered by the Pima County Attorney’s Office. I pled guilty to two counts of aggravated assault of a minor. The terms of the plea agreement stipulated that the charges be classified as “undesignated” and that upon completion of probation the charges would be reclassified as misdemeanors. The judge assigned to my case saw fit to designate the charges as Class 6 felonies nonetheless.

I have accepted responsibility for this matter and have agreed to the terms set forth by the Court. I am presently serving six years of probation to conclude August 15, 2017. I have maintained full compliance with the terms of my probation, and have incurred no violations or negative reports since beginning the service of my sentence.

Applicant was sentenced to serve a total of six months in the Pima County Jail and ordered to serve three years of probation for each felony count.[3] The three years of probation are to run consecutively and will conclude on or about August 15, 2017. Applicant was ordered to be placed on the Sex Offender case load and required to notify any school, place of employment, etc., where there are children that he is registered as a sex offender. Applicant stipulated that he had been convicted of two counts of aggravated assault of a minor under fifteen, a Class Six Undesignated Offense. Applicant testified that the behavior in question was inappropriate and disrespectful to his daughter personal boundaries. Applicant acknowledged that he voluntarily entered into a plea agreement for the two felony convictions. Applicant stated that he was compelled to admit guilt to the two felonies to avoid having a trial. Applicant testified that a trial would have been very difficult for him. Applicant testified that electrical engineers do not normally have contact with children during the performance of their work as electrical engineers. Applicant stated that laboratories and places of business are not places where one would normally have contact with children. Applicant testified that the Court did not see fit to prohibit him from traveling to any site or having contact with minors. Applicant testified that there are no legitimate grounds for prohibiting him from practicing as an electrical engineer. Applicant stated that there was no logical connection between his admitted conviction of two class six felonies for assaulting a minor child under fifteen years of age and his licensure as an electrical engineer. Applicant testified that there is no provision in the applicable statute that prohibits the Board from granting his application to be registered as an electrical engineer. Applicant stated that the definition of good moral character is codified as meaning that the license applicant has not been convicted either of a class one felony or any felony or misdemeanor that is reasonably related to the registration that is being applied for. Applicant testified that he is being painted with a “broad brush” for heinous offenses that he did not commit. Lorraine Brown (hereinafter “Ms. Brown”) testified that she is the licensing manager for the Board. Ms. Brown stated that previously, she was an investigator for the Board. Ms. Brown testified that Applicant’s registration application was submitted to the Board for evaluation based upon Applicant’s disclosure that he had been convicted of felonies. Ms. Brown testified that she was familiar with Applicant’s registration application. Ms. Brown stated that the Board’s reason for denying Applicant’s application for registration was set forth in the Board’s denial letter of April 26, 2013, informing Applicant that his application for registration as an electrical engineer had been denied based on his felony convictions in 2011.[4] Ms. Brown testified that Applicant’s felony convictions were the basis for the registration denial.[5] The Board’s April 26, 2013 denial letter provided, in relevant part, as follows: On August 15, 2011, in Pima County Superior Court case number CR20110673, you [Applicant] were convicted of two counts of aggravated assault of a minor, both class 6 felonies, based upon conduct with your stepdaughter in 2003 and daughter in 2010. You are required to register as a sex offender. As a result, of the 2011 conviction, you are on probation until August 15, 2017.

The Board may deny an application if the Board determines that the applicant has failed to establish that he possesses good moral character and repute. A.R.S. § 32-122.01(A)(1). “Good moral character and repute” means that the registration applicant has not been convicted of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or category for which the registration is sought. A.A.C. R4-30- 101(12)(a). Your 2011 felony conviction[s] demonstrate[] a lack of good moral character and repute and [are] reasonably related to the functions of an electrical engineer.

Ms. Brown testified that Applicant admitted in his plea agreement that his actions were sexually motivated.[6] Ms. Brown testified that, based upon her previous experience as an investigator and her experience as licensing manager for the Board, electrical engineers can sometimes go out personally to the construction sites of projects for which they have drawn electrical plans. Ms. Brown stated that construction sites could include homes and schools as well as other commercial construction sites. Ms. Brown acknowledged that the uniform conditions of supervised probation form utilized for Applicant’s probation did not have the box checked that would have prohibited Applicant from going near schoolyards, parks, playgrounds, arcades or other places primarily used by persons under the age of 18.[7] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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). 3. A.R.S. § 32-122.01(A)(1) provides as follows; An applicant for professional registration as an architect, engineer, geologist or landscape architect shall:

1. Be of good moral character and repute.

4. A.A.C. R4-30-101(12) provides as follows: “Good moral character and repute" means that the registration or certification applicant:

a. Has not been convicted of a class 1 felony as under in A.R.S. § 13-601(A).

b. Has not been convicted of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or category for which the registration, certification, or designation is sought;

c. Has not, within five years of application for registration or certification, committed any act involving dishonesty, fraud, misrepresentation, breach of fiduciary duty, gross negligence, or incompetence reasonably related to the candidate's proposed area of practice;

d. Is not currently incarcerated in a penal institution;

e. Has not engaged in fraud or misrepresentation in connection with the application for registration, certification, or related examination;

f. Has not had a registration or certification revoked or suspended for cause by this state or by any other jurisdiction, or surrendered a professional license in lieu of disciplinary action;

g. Has not practiced without the required technical registration or certification in this state or in another jurisdiction within the two years immediately preceding the filing of the application for registration or certification; and

h. Has not, within five years of application for registration or certification, committed an act that would constitute unprofessional conduct, as set forth in R4-30-301 or R4-30-301.01.

5. There is no factual dispute in this case. Applicant knowingly pled guilty to and was convicted of two counts of aggravated assault of a minor under fifteen, Class Six Undesignated Offenses that are still designated as Class Six Felonies by the Superior Court Judge. In his Plea Agreement, Applicant admitted that he committed the two offenses for the purpose of sexual gratification. Applicant has served six months of incarceration in the Pima County Jail and will be on probation for the two felony convictions until August 15, 2017. 6. This Tribunal concludes that the Board’s concerns in this case are legitimate and well founded. A person with two felony convictions for aggravated assault of a minor under fifteen for the purpose of sexual gratification warrants close scrutiny and careful consideration. The Board is charged with the protection of the public and must be cautious is such cases. Although Applicant testified and showed sincerity, emotion, and an apparent commitment to remain law abiding, the short period the Applicant has been released from incarceration and the brief period of probation that he has served are insufficient to establish the good moral character and repute required by A.R.S. § 32-122.01(A)(1). RECOMMENDed order In view of the foregoing, it is recommended that the denial of Applicant’s application for registration No. 121229 for the practice of electrical engineering be affirmed and that Applicant’s appeal of the denial be denied. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 5 days from the date of the certification. Done this day, July 25, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Melissa Cornelius, Executive Director Board of Technical Registration

----------------------- [1] See Exhibit No. 1 (Application for Registration). [2] See Exhibit No. 2 (12/17/12 Letter). [3] See Exhibit No. 4 (Minute Entry Sentencing Document). [4] See Exhibit No. 7 (4/26/13 denial letter from the Board). [5] See Exhibit No. 6 (4/23/13 Minutes of the Board). [6] See Exhibit No. 3 (Plea Agreement CR-20110673-001). [7] See Exhibit No. 5 (Uniform conditions of supervised probation form).

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