ALJDEC decisions subject to certification as final

13F-M12049-BTR · Board of Technical Registration · 2012-12-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 29, 2012, at 8:00 a.m. APPEARANCES: The Arizona State Board of Technical Registration appeared through Elizabeth A. Campbell, Esq., Assistant Attorney General; Respondent David Buot did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. The Arizona State Board of Technical Registration (“the Board”) is the duly constituted authority for licensing and regulating the practice of architecture in the State of Arizona. 2. David Buot (“Respondent”) is the holder of license number 40419, which allows him to practice as an architect in Arizona. 3. On or about October 10, 2012, the Board issued a Complaint and Notice of Hearing charging Respondent with violating A.R.S. § 32-128(C)(2) as defined by A.A.C. R4-30-101(16)(a) and A.A.C. R4-30-101(16)(c) and setting a hearing on November 29, 2012, before the Office of Administrative Hearings (“the OAH”), an independent state agency. The Board mailed copies of the Complaint and Notice of Hearing to Respondent at his address of record and at Lewis Prison in Buckeye, Arizona. 4. On or about October 15, 2012, the Board received from Respondent a request for a continuance until after his appeal of his criminal conviction had concluded. The Board forwarded the motion to the OAH. 5. On or about October 29, 2012, the assigned Administrative Law Judge at the OAH denied Respondent’s request to continue the hearing, but informed him that he could request to appear telephonically at the hearing under A.A.C. R2-19-115. 6. A hearing was held on November 29, 2012. The Board submitted one exhibit and presented the testimony of Kathryn Fuller, its Investigations Manager. 7. Respondent did not request to appear telephonically at the hearing. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional time, Respondent did not appear, personally, telephonically, or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend his license. 8. The Board submitted a copy of a minute entry order dated March 26, 2012, in Superior Court of Arizona, Maricopa County Case No. CR2011- 104792-001 DT that noted that Respondent had been found guilty after a trial by jury of Second Degree Murder, a Class 1 Dangerous Felony in violation of A.R.S. §§ 13-1101, 13-1104, 13-710, 13-701, 13-702, 13- 704, and 13-801. As a result, Respondent was sentenced to a term of imprisonment of 22 years in the Arizona Department of Corrections with credit for 424 days and to pay restitution in the amount of $20,488.40. CONCLUSIONS OF LAW 1. The copies of the Complaint and Notice of Hearing that the Board mailed to Respondent at his address of record and at his address in Lewis Prison were reasonable and it appears that he actually received notice of the hearing.[1] 2. This matter lies within the Board’s jurisdiction.[2] 3. The Board established that Respondent has been convicted of the Class felony offense of second degree murder, thereby establishing cause to impose discipline against Respondent’s license under A.R.S. § 32- 128(C)(2),[3] as defined by A.A.C. R4-30-101(16)(a).[4] The Board also established that Respondent is currently incarcerated for the offense, furnishing additional grounds to impose discipline against Respondent’s license under A.R.S. § 32-128(C)(2), as defined by A.A.C. R4-30-101(16)(c). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Board’s Order, License No. 40419 for the Practice of Architecture in the State of Arizona previously issued to Respondent David Buot be revoked. 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 will be five days from the date of that certification. Done this day, December 18, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Ronald W. Dalrymple, Executive Director Board of Technical Registration ----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [2] See A.R.S. § 32-106(A)(6) and (9). [3] The charged section of A.R.S. § 32-128(C)(2) provides as follows: C. The board may take disciplinary action against the holder of a certificate or registration under this chapter who is charged with the commission of any of the following acts: . . . . 2. Gross negligence, incompetence, bribery or other misconduct in the practice of the profession. [4] The charged provisions of A.A.C. R4-30-101(16) further define “misconduct in the practice of the profession” under A.R.S. § 32-128(C)(2) as follows: a. Has been convicted of a class 1 felony; [or] . . . . c. Is presently incarcerated in a penal institution . . . .

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