ALJDEC decisions subject to certification as final

014F-132227-BTR · Board of Technical Registration · 2014-05-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 8, 2014 APPEARANCES: Salvador Rincon appeared on his own behalf; John R. Tellier, Esq. appeared for the State Board of Technical Registration ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________

FINDINGS OF FACT 1. On April 2, 2014, the Arizona State Board of Technical Registration (“Board”) issued a “Notice of Hearing on Denial of Certification” setting the above-captioned matter for hearing at 8:00 a.m. May 8, 2014, at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing shows that the hearing was being conducted to determine whether Salvador Rincon is qualified under Ariz. Rev. Stat. section 32-122.07 to be certified as an Alarm Agent in the State of Arizona. 3. Mr. Rincon appeared on his own behalf and presented the testimony of Stan Willis and Paul Brooke. The Board presented the testimony of its licensing manager, Lorraine Brown. 4. Mr. Rincon submitted to the Board an Application for Alarm Agent Certification in which he disclosed that in 1996 he was convicted of theft. 5. By letter dated February 11, 2014, the Board informed Mr. Rincon that his application had been denied because he had been convicted of theft. 6. Ms. Brown testified that under Ariz. Rev. Stat. section 32- 122.07, the Board is required to deny applications for alarm agent certification when the applicant has been convicted of theft. 7. Mr. Willis has known Mr. Rincon for ten to twelve years and appeared to attest to Mr. Rincon’s good character. During part of that time, Mr. Rincon was an employee of Mr. Willis’s. Mr. Willis’s opinion is that Mr. Rincon is one of the top alarm technicians in the city. 8. Mr. Willis acknowledged that the Board was following the requirements of the existing statute in denying Mr. Rincon’s application. 9. Mr. Brooke is the Director of Public Relations for Titan Alarm Company. Mr. Rincon has worked for Titan for about a year. Titan was aware that Mr. Rincon had a criminal conviction when he was hired. 10. Mr. Brooke testified that Mr. Rincon is a well respected employee who does a magnificent job. 11. Mr. Brooke acknowledged that under the existing statute, the Board was required to deny Mr. Rincon’s application. Mr. Brooke explained however, that the statute has been changed to allow the Board discretion in matters such as this one. According to Mr. Brooke, the new version of the statute will become effective in about ninety days. 12. The Board acknowledges that there is a new version of the statute that is not yet effective, but argues that it must follow the existing statute. CONCLUSIONS OF LAW 1. Mr. Rincon bears the burden of persuasion. Ariz. Rev. Stat. § 41- 1092.07(G)(1). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § 2-19-119. 3. A preponderance of the evidence is “[e]vidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (6th ed. 1990). 4. Ariz. Rev. Stat. section 32-122.07(A) provides that the Board “shall deny an application for certification as an … alarm agent” if the applicant has been convicted of theft. 5. As currently written, Ariz. Rev. Stat. section 32-122.07(A) requires the Board to deny certification for any applicant who has been convicted of theft. There was no legal authority presented demonstrating that the Board has authority to apply the amended version of Ariz. Rev. Stat. section 32-122.07(A), which is not yet in effect. 6. Mr. Rincon has failed to establish by a preponderance of the evidence that the Board’s denial of his application was improper or contrary to law. Consequently, Mr. Rincon’s appeal should be dismissed. ORDER IT IS ORDERED that Salvador Rincon’s appeal is dismissed. 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 is five days after the date of that certification. Done this day, May 20, 2014.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Melissa Cornelius, Executive Director Board of Technical Registration -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826