ALJDEC decisions subject to certification as final

07A-019-BUS · Department of Public Safety - Student Transportation · 2008-02-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Convened and concluded on February 6, 2008. APPEARANCES: Valerie Jeanne Thomas failed to appear. Assistant Attorney General Brian Schneider represented the Arizona Department of Public Safety. ADMINISTRATIVE LAW JUDGE: Kay A. Abramsohn _____________________________________________________________________

The question presented in this case is whether grounds exist to deny an Arizona School Bus Driver Certificate to Valerie Jeanne Thomas (“Ms. Thomas”) based on her criminal history and failure to disclose information. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact and Conclusions of Law and Recommended Order to affirm its determination and dismiss the appeal. FINDINGS OF FACT 1. The Arizona Department of Public Safety, Student Transportation Unit (the “Department”) is the duly constituted authority for licensing school bus drivers in the State of Arizona. 2. On October 3, 2007, the Department received Ms. Thomas’ Application for School Bus Driver’s Certificate. See Administrative Record. Ms. Thomas answered “no” to the questions on the application regarding any convictions of misdemeanor, felony or se offense. 3. The application form defined “convicted” as follows: [A]ny time you were found guilty of an offense and

• forfeited a bond; • served a term of Probation; • paid a fine; • received a “suspended” sentence; • conviction was expunged or set aside; • served time in city or county jail; • received a “deferred” sentence; and/or • served time in prison.

4. The application form also contained the following above the signature line: DECLARATION (Please read carefully)

I attest and swear that, all answers on this application are true. I understand that I may be subjected to criminal prosecution for falsification or misrepresentation of any part of any document provided to the [Department] in this application process. Falsification or misrepresentation is also grounds for denial or cancellation of my school bus driver’s certificate.

[Emphasis in original.] Ms. Thomas signed below the declaration. 5. The Department obtained a criminal background report. See Administrative Record.[1] 6. On November 8, 2007, Department sent a letter to Ms. Thomas, informing her that it was denying her application under Arizona Administrative Code (“A.A.C.”) R17-9-102(K)(1). See Administrative Record. The Department also informed Ms. Thomas that it recommended she be allowed to reapply for a certificate after November 8, 2012. Finally, the Department advised Ms. Thomas of her right to request an administrative hearing. 7. Ms. Thomas requested a hearing on the denial; the Department received the request on December 5, 2007.[2] See Administrative Record. The Department referred the matter to the Office of Administrative Hearings to conduct a formal hearing and, on December 13, 2007, the Department issued a Notice of Hearing; the matter was subsequently continued, due to an amendment to the Notice of Hearing. 8. At the time of the continued hearing, Ms. Thomas failed to appear and present any evidence for consideration by the Administrative Law Judge. CONCLUSIONS OF LAW 1. This matter lies within Department’s jurisdiction.[3] 2. Ms. Thomas bears the burden of proof and must establish that she is qualified to be certified as a school bus driver by a preponderance of the evidence.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] A preponderance of the evidence is “evidence which is of greater weight or more convincing than 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.”[6] 3. The Administrative Law Judge concludes that, with the failure of Ms. Thomas to appear and present any information for consideration, she has not borne her burden to establish that she is qualified, at this time, to receive a school bus driver certification. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Director of Department affirm the Department’s denial of Ms. Thomas’ application for a school bus driver’s certificate (and decision to allow her to reapply after November 8, 2012) and dismiss Ms. Thomas’ appeal. Recommended this day, February 21, 2008.

______________________________________ Kay A. Abramsohn Administrative Law Judge

Original transmitted by mail this ____ day of February, 2008, to:

Department of Public Safety - Student Transportation Roger Vanderpool, Director 2102 West Encanto Boulevard Phoenix, AZ 85009 ATTN: Sergeant Paul M. Forch

By ___________________________ ----------------------- [1] The Administrative Record forwarded from the agency for the proposed record notes that an Exhibit 2 will be Criminal History regarding Ms Thomas “to be added at the time of the hearing”. [2] See A.A.C. R17-9-102(K)(2). [3] See A.R.S. § 28-3228. [4] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] Black’s Law Dictionary at page 1120 (8th ed. 2004).

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