ALJDEC decisions subject to certification as final

014F-132215-BTR · Board of Technical Registration · 2014-05-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 9, 2014, at 10:00 a.m. APPEARANCES: Treman Antonio Gonzalez appeared on his own behalf; the Arizona Board of Technical Registration was represented by John R. Tellier, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. In 2012, the Arizona Legislature enacted A.R.S. § 32-122.07.[1] This statute provides that the Arizona State Board of Technical Registration (“the Board”) “shall deny an application for certification as an . . . alarm agent” if the agent had been convicted at any time of any of thirteen enumerated crimes, including theft. A.R.S. § 32-122.07(A)(1) (emphasis added). 2. Before the Legislature enacted A.R.S. § 32-122.07, there was no requirement of state certification for a person to work as an alarm agent. Some municipalities adopted certification programs that have various requirements for persons who worked on security systems within their municipal limits. 3. Treman Antonio Gonzalez submitted an application for certification as an alarm agent. On February 6, 2014, the Board’s executive director sent a letter informing Mr. Gonzalez that the Board had determined to deny his application based on his conviction for theft in approximately 2000 in Arkansas. Mr. Gonzalez requested a hearing on the Board’s denial. 4. The Board referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 5. A hearing was held on May 9, 2014. Mr. Gonzalez testified on his own behalf. The Board’s attorney questioned Mr. Gonzalez and made legal argument. 6. Mr. Gonzalez acknowledged that he had been convicted of theft in approximately 2000. Mr. Gonzalez testified that the theft conviction was the result of “a simple stupid act” that he committed when he was growing up. Mr. Gonzalez testified that he is now 32 years old and that he has not had any other arrests, convictions, or problems with the law. 7. Mr. Gonzalez testified that he was licensed to install and service alarms for Cox Communications by the City of Phoenix and the Town of Fountain Hills. Mr. Gonzalez testified that he has been working for Cox for approximately eight years, without any problems or complaints. 8. Mr. Gonzalez testified that he has been working with teenagers at his church for six or seven years and that he uses his criminal conviction as an example to help them avoid similar problems in their lives. CONCLUSIONS OF LAW 1. This matter lies within the Board’s jurisdiction.[2] 2. The use of the word “shall” in the current version of A.R.S. § 32- 122.07(A)(1) indicates a legislative mandate that affords the Board no discretion but to deny Mr. Gonzalez’s application to be certified as an alarm agent because he was convicted of theft in 2000.[3] 3. Mr. Gonzalez testified credibly that the criminal conviction for theft was the result of a single isolated act that he committed when he was young. Mr. Gonzalez testified that he has been working as an alarm agent for eight years without any problems or complaints and that he performs volunteer work that benefits his community. 4. On April 22, 2014, the Arizona Legislature amended A.R.S. § 32- 122.07(A) to provide that the Board “may deny an application for certification as an alarm agent if . . . an alarm agent lacks good moral character or has been convicted of an act involving moral turpitude. A lack of good character may be established by evidence of past criminal activity and shall be determined by the Board.”[4] This recent amendment will allow the Board discretion to grant an application for certification as an alarm agent if the applicant establishes that he has been rehabilitated, even if in the past he was convicted of an act involving moral turpitude, such as theft. 5. However, the amendment to A.R.S. § 32-122.07(A) is not yet effective. Mr. Gonzalez may submit another application for certification as an alarm agent to the Board after the effective date of the amendment. At that time, the Board may consider Mr. Gonzalez’s evidence of rehabilitation to determine whether or not to grant him certification as an alarm agent.[5] As noted above, however, the Board has no discretion under the current version of A.R.S. § 32-122.07(A) but to deny Mr. Gonzalez’s application for certification as an alarm agent because in approximately 2000, he was convicted of theft. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Board affirm its decision to deny Mr. Gonzalez’s application for certification as an alarm agent and dismiss this appeal, without prejudice to Mr. Gonzalez’s right to submit another application after the effective date of the amendment to A.R.S. § 32-122.07(A). In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be five (5) days from the date of that certification. / / / / Done this day, May 28, 2014.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Melissa Cornelius, Executive Director Board of Technical Registration ----------------------- [1] See Laws 2012, Ch. 341, § 5. [2] See A.R.S. § 32-122.07(A). [3] See, e.g., Fields v. Elected Officials' Ret. Plan, 680 Ariz. Adv. Rep. 15, 23 ¶ 37, 320 P.3d 1160, 1168 (2014). [4] House Bill 2546 (51st Legislature, Second Regular Session). [5] The general effective date of legislation that does not contain an emergency clause or a specific effective date is the 91st day after the date on which the session of the legislature that enacted the legislation was adjourned sine die. See Bland v. Jordan, 79 Ariz. 384, 386, 291 P.2d 205, 206 (1955), overruled on other grounds, Kleindienst v. Jordan, 93 Ariz. 188; 379 P.2d 463 (1963). The 51st Legislature adjourned its Second Regular Session sine die on April 24, 2014, at 1:46 a.m. See www.azleg.gov

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