ALJDEC

01F-O012011-BFS · Department of Building and Fire Safety · 2001-10-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 24, 2001 APPEARANCES: Larry R. Low, Applicant, in his own behalf M. Elizabeth Burns, Assistant Attorney General, on behalf of the State ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings Of Fact 1. The facts of this case are not in dispute. 2. The Applicant was previously a licensed contractor, holding a Class 31 license (masonry), issued by the Arizona Registrar of Contractors (Registrar). 3. The contractor’s license was revoked by Order of the Registrar dated March 23, 1999, upon a finding of violations of Arizona Revised Statutes, Title 32, after a hearing before the Office of Administrative Hearings (OAH), in Case No. H98-0317, Docket No.98F-H0317-ROC. 4. On May 25, 2001, and as a consequence of the revocation, the Registrar ordered a payout of $5,529.76 from the Residential Contractors Recovery Fund after a Recovery Fund hearing before the OAH in Case RF01-0144, Docket No. 01F-RF0144-ROC. 5. In November, 2000, the Applicant sustained a misdemeanor conviction for Contracting Without a License in violation of A.R.S. §32-1151 in Mohave County. He was sentenced to two years probation and fined $500.00 plus a surcharge. 6. In November, 2000, the Applicant filed his application with the Department of Building and Fire Safety (Department), for an installer’s license. 7. Initially the Department denied the application on the grounds that the Applicant’s contractor’s license had been revoked within a year (the assertion was in error). The matter was scheduled for a hearing when the Department rescinded its denial because the time since the revocation of the Applicant’s contractor’s license exceeded year. 8. The matter was reset for hearing with new grounds for the denial alleged. The reason for the Department’s current denial is the Applicant’s alleged lack of good character and reputation. Conclusions of Law A.R.S. §41-2175 (E) provides in pertinent part that a person who is, or represents the Applicant for a license, shall be of good character and reputation. Lack of good character or reputation may be shown by any act which would be grounds for suspension or revocation of the license. A.R.S. §41-2186 provides grounds for suspension or revocation of a license. A.R.S. §41-1065 places the burden of proof on the Applicant for a license or permit. A.A.C. R2-19-119 places the burden of proof on the person asserting the right, claim or entitlement. 1. The State argued that lack of good character or reputation was not limited to those matters listed in A.R.S.§41-2186. The position is accepted. To conclude otherwise would seriously restrict the application of the statute and limit the meaning of good character and reputation as used in the statute. This would jeopardize public welfare by allowing persons of questionable character and background to become licensees. 2. The concept of good character and reputation is not strictly limited to personal moral grounds. The issue in this hearing concerns an application for a regulated business license. Good character and reputation necessarily include matters based on conduct under a similar license, or stated more broadly, professional good character and reputation. The similarity of the regulated businesses in this case (Contracting and Building and Fire Safety-Office of Manufactured Housing), the relevant statutes for contracting and the Department, is evident and needs no exposition. 3. In the instant case the State made no specific showing that the Applicant was engaged in conduct that would be in violation of A.R.S. §41- 2186. However, the Applicant has had a contractor’s license revoked. The Registrar has had to pay $5,529.76 from its Recovery Fund for the Applicant’s violation. The Applicant has sustained a criminal violation for contracting without a license. All these things have happened in a little over two and a half years. The Applicant’s violations as a contractor and his criminal conviction bear directly on the type of work he would be doing under the license for which he is applying. 4. The Applicant offered testimony to explain the reason for his violation, revocation and criminal conviction. Letters of reference attesting to the Applicant’s good character were also considered. The Applicant’s testimony essentially consisted of explanations for the problems noted above. The Applicant did not appear for the initial Registrar’s hearing because he was confused about the date of the hearing. He testified he had no conscious intent to violate any law or regulatory provision. Unfortunately, the consequences of inadvertence, mistake and lack of knowledge can be as serious as purposeful acts, and can reflect on good character and reputation in the context of the business license which is being applied for under the cited statute. Recommended Order In view of the foregoing it is recommended that the Department decision to deny the license application of Chief Cornerstone Masonry and Larry Russel Low, be affirmed and the appeal of the decision be denied.

Done this day, October 30, 2001

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Department of Building and Fire Safety N. Eric Borg ATTN: Shawna Blank East Virginia, Suite 100 Phoenix, AZ 85004

By ___________________________

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