ALJDEC decisions subject to certification as final

014F-132775-BTR · Board of Technical Registration · 2014-07-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 23, 2014 APPEARANCES: Applicant James Michael Dailey appeared on his own behalf. The Arizona State Board of Technical Registration was represented by Assistant Attorney General Jeanne Galvin. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ 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 April 8, 2014, 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 March 25, 2014, Board meeting, the Arizona State Board of Technical Registration (the “Board”) denied your application for certification as an Alarm Agent (“Application”). In denying your Application, the Board considered your conviction for grand theft in 1996. 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 theft.

Exhibit 5.

Applicant disagreed with the Board’s denial of his application and requested an administrative hearing. Testimony of Cynthia Beaton Cynthia Beaton testified that she was an Administrative Assistant for the Board and processed applications for the Board. Ms. Beaton stated that she was familiar with Mr. Dailey’s application for certification as an Alarm Agent. Ms. Beaton testified that in his application for certification, Mr. Dailey acknowledged that he had been convicted of theft. Ms. Beaton stated that Mr. Dailey submitted a written explanation of the conviction, which acknowledged he had been charged with “embezzling” money from his employer. Exhibit 2. Ms. Beaton testified that the Board denied Mr. Dailey’s license application based upon his conviction for grand theft in 1996. Ms. Beaton stated that the Board’s April 8, 2014 Letter of Denial truly reflected the reason that Mr. Dailey’s application for certification was denied. Ms. Beaton testified that Mr. Dailey requested an administrative hearing. Testimony of David Dailey Mr. Dailey acknowledged that he had been convicted for misdemeanor grand theft in 1996. Mr. Dailey testified that he had petitioned the court in California to have the conviction dismissed. Mr. Dailey indicated he had been working in the industry for 14 years and had been a trainer for others. Mr. Dailey expressed that the denial of his application for certification would affect his livelihood and would effectively require him to move out of the State of Arizona. Mr. Dailey noted that he believed other states limit the review of an applicant’s criminal history to a certain number of years as opposed to the current Arizona system that does not have any time limits on convictions for theft. Mr. Dailey questioned an upcoming change in the statutory framework applicable in this matter. Mr. Dailey was uncertain if the changes would affect the Board’s decision with respect to his application. 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. 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.

(Emphasis added). 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. Dailey was convicted of the crime of grand theft in 1996. A.R.S. § 32-1122(7)(A) states that the Board “shall deny” an application for certification if the Applicant has been convicted of theft. The statute does not distinguish between misdemeanor and felony convictions. The statute does not include any temporal limitation on convictions that are grounds for the denial of certification. The statute requires that the Board “shall deny” an application for certification if the Applicant has been convicted of theft. 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. Dailey’s application for certification as an Alarm Agent was properly denied by the Board on the basis that Mr. Dailey had been convicted of theft. RECOMMENDed order In view of the foregoing, it is recommended that the denial of Mr. Dailey’s 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, July 10, 2014.

/s/ Tammy L. Eigenheer 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