ALJDEC decisions subject to certification as final

014F-132284-BTR · Board of Technical Registration · 2014-03-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 24, 2014, at 8:00 a.m. APPEARANCES: David Spiers (hereinafter “Applicant” or “Mr. Spiers”) appeared on his own behalf. The Arizona State Board of Technical Registration (hereinafter the “Board”) was represented by Assistant Attorney General, Elizabeth Campbell. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

This matter came on for hearing to determine whether the Applicant is qualified under A.R.S. § 32-122.07 to be certified as an Alarm Agent in the State of Arizona. Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT Background Applicant filed an application with the Board for certification as an Alarm Agent. On November 21, 2013, the Board issued a letter advising Applicant that the Board had denied Applicant’s application. The letter provided, in relevant part, as follows: At its November 19, 2013, Board meeting, the [Board] denied your application for certification as an Alarm Agent (“Application”). In denying your Application, the Board considered the conviction for trespassing in 1983. The Board must deny an application for certification as an Alarm Agent if the applicant has been convicted of any of the offenses listed in A.R.S. § 32-122.07(A), which include criminal trespass.

Applicant disagreed with the Board’s denial of his application and requested an administrative hearing. Testimony of Lorraine Brown Lorraine Brown (hereinafter “Ms. Brown”) testified that she is the licensing manager for the Board. Ms. Brown stated that she had been the licensing manager for the Board for one year. Ms. Brown testified that she was familiar with Mr. Spiers’ application for certification as an Alarm Agent. Ms. Brown testified that in his application for certification, Mr. Spiers acknowledged that he had been convicted of a misdemeanor other than a minor traffic offense. Ms. Brown stated that the Board requested that Mr. Spiers provide a written explanation of the conviction. Ms. Brown testified that Mr. Spiers disclosed that he was convicted for misdemeanor criminal trespass in 1983. Ms. Brown testified that the Board denied Mr. Spiers’ license application based upon his misdemeanor criminal trespass conviction in 1983. Ms. Brown stated that the Board’s November 21, 2013 Letter of Denial truly reflected the reason that Mr. Spiers’ application for certification was denied. Ms. Brown testified that Mr. Spiers requested an administrative hearing. Testimony of David Spiers Mr. Spiers acknowledged that he had been convicted for misdemeanor criminal trespass in 1983. Mr. Spiers testified that he grew up in a church that was extremely strict. Mr. Spiers stated that one of things not allowed by the church was watching television. Mr. Spiers testified that as he grew older, he started to fall away from the church’s strict beliefs. Mr. Spiers testified that while his wife’s grandparents were on vacation, he entered their residence through a broken window and spent a couple of hours of the next three or four days watching television at his wife’s grandparents’ house. Mr. Spiers stated that there had always been animosity between his wife’s grandparents and Mr. Spiers. Mr. Spiers denied taking anything from his wife’s grandparents’ residence. Mr. Spiers acknowledged that he entered his wife’s grandparents’ home without their permission. Mr. Spiers testified that he pled guilty to the charge of misdemeanor criminal trespass, served his jail time, and paid the restitution that was ordered by the court. Mr. Spiers stated that since 1983, he had gone through extensive background checks with the FBI and had been granted the highest security clearance available. Mr. Spiers asserted that he had no criminal intent when he committed the trespass in 1983. Mr. Spiers acknowledged that it was a criminal trespass conviction. Mr. Spiers testified that the criminal trespass conviction was more than thirty years old. Mr. Spiers stated that he had no subsequent criminal convictions. Mr. Spiers testified that he has been an upstanding, honorable citizen of the State of Arizona since 1986. Mr. Spiers testified that he understood the Board’s position. Mr. Spiers stated that he did not think he had been convicted of criminal trespass when he made his application for certification. Mr. Spiers acknowledged that in fact he had been convicted of criminal trespass in 1983.

PROVISIONS OF LAW REFERENCED AT HEARING

1. A.R.S. § 32-122(7)(A) provides as follows: The board shall deny an application for certification as an alarm business or alarm agent if a controlling person of an alarm business or an alarm agent has been convicted of any of the following:

1. Theft. 2. Burglary. 3. Robbery or armed robbery. 4. Criminal trespass [emphasis added]. 5. Sexual abuse of a vulnerable adult. 6. Abuse of a vulnerable adult. 7. Sexual assault. 8. Any offense involving the exploitation of a minor. 9. Molestation of a child. 10. Homicide, including first or second degree murder and negligent homicide. 11. Distribution, manufacture or sale of marijuana, dangerous drugs or narcotic drugs if committed less than three years before the date of applying for certification. 12. Kidnapping. 13. Fraud by persons authorized to provide goods or services.

CONCLUSIONS OF LAW Under A.R.S. § 41-1092(7)(G), the burden of proof on the denial of a permit, certification, or license is on the Applicant. The standard of proof on all issues is by a preponderance of the evidence. See A.A.C. R2- 19-119. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). Undisputed credible testimony established that Mr. Spiers was convicted of the crime of criminal trespass in 1983. A.R.S. § 32-1122(7)(A) states that the Board “shall deny” an application for certification if the Applicant has been convicted of criminal trespass. The statute does not distinguish between misdemeanor and felony convictions. The statute does not include any temporal limitation on convictions that are grounds for denial of certification. The statute requires that the Board “shall deny” an application for certification if the Applicant has been convicted of criminal trespass. The Board is responsible for the protection of the public by regulating alarm professionals whose work directly affects the safety and property of the public. Mr. Spiers’ application for certification as an Alarm Agent was properly denied by the Board on the basis that Mr. Spiers had been convicted of criminal trespass. RECOMMENDed order In view of the foregoing, it is recommended that the denial of Mr. Spiers’ application for certification as an Alarm Agent be affirmed and that this appeal be denied. In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of this Order will be five (5) days from the date of that certification. Done this day, March 6, 2014. /s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

Melissa Cornelius, Executive Director Board of Technical Registration

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