ALJDEC decisions subject to certification as final

2010A-100061309-ROC · Registrar of Contractors · 2010-05-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 13, 2010 at 1:00 p.m. APPEARANCES: Applicant Dancorp Air Conditioning Company LLC appeared through Daniel Mosono, its qualifying party and managing member; the Arizona Registrar of Contractors appeared through Camila Alarcon, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background 1. On October 13, 2009, the Registrar of Contractors (“the Registrar”) received an application for a K-79 license for air conditioning and refrigeration including solar from Dancorp Air Conditioning LLC, a limited liability company. Daniel Mosono was listed as qualifying party and only member on the license application. 2. Mr. Mosono indicated on the license application that he had been convicted of a felony. 3. After investigation, on January 29, 2010, the Registrar’s Acting Assistant Chief of Licensing Paul Terek set a letter to Mr. Mosono, informing him that the Registrar had denied the license application for the following reasons: 1. Daniel Mosono has failed to establish good character and reputation as required by A.R.S. § 32-1122.D.

2. Daniel Mosono has been convicted of a felony, which would constitute a violation of A.R.S. § 32-1154.A.8, if a license were to be issued.

The following information substantiates the above grounds for the recommended denial:

On March 25, 2002, Daniel Mosono, was convicted of Possession of Drug Paraphernalia, a Class six undesignated felony, in Maricopa County Superior Court, Case No. CR2002-090919. Imposition of the sentence was suspended and Mr. Mosono was placed on three years probation. Mr. Mosono was further ordered to pay a fine of $3,540.00, to serve 360 hours of Community Service and to resolve a New York warrant. Subsequently, Mr. Mosono violated the terms of his probation, but such probation was then reinstated, and Mr. Mosono was discharged from Probation on or about September 19, 2005.

On March 25, 2002, Daniel Mosono was convicted of Criminal Impersonation, a Class 6 undesignated felony, in Maricopa County Superior Court, Case No. CR-2002-091502. Imposition of the sentence was suspended and Mr. Mosono was placed on three years probation, to run concurrent with the term of probation in Case No. CR2002-090919. Mr. Mosono was further ordered to be incarcerated for four months and to undergo HIV testing with results disclosed to victims. Subsequently, Mr. Mosono violated the terms of his probation, but such probation was then reinstated, and Mr. Mosono was discharged from probation on or about September 19, 2005.

On December 4, 2002, Daniel Mosono was convicted of Forgery, a Class 4 designated felony, in Maricopa County Superior Court, Case No. CR2002-092976 and was sentenced to 1.5 years in prison.

On December 4, 2002, Daniel Mosono was convicted of Theft of a Credit Card, a Class 5 designated felony, in Maricopa County Superior Court, Case No. CR2002-096832. Imposition of the sentence was suspended and Mr. Mosono was placed on three years intensive probation, beginning upon absolute release from the Arizona Department of Corrections in CR2002-092976.

Mr. Terek closed the letter by informing Mr. Mosono of his right to request an administrative fair hearing on the license denial.

. 4. Mr. Mosono timely requested a hearing on the Registrar’s denial of Dancorp Air Conditioning Company LLC’s license application. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, to schedule and to conduct a fair hearing. 5. A hearing was held on May 13, 2010. Mr. Mosono testified and submitted three exhibits. The Registrar submitted six exhibits and presented Mr. Terek’s testimony. Additional Hearing Evidence 6. The Registrar submitted records of court proceedings to establish the criminal history set forth in Mr. Terek’s January 29, 2010 letter. 7. Mr. Terek testified that Mr. Mosono’s convictions for forgery and theft of a credit card were especially concerning to the Registrar because air conditioning contractors generally have unrestricted and unsupervised access to every livable area in a house when they install, repair, or test residential air conditioning systems. It was not likely that the homeowner would follow the contractor around to safeguard possessions and personal information. The forgery conviction was also concerning because contractors write and are parties to contracts with members of the public. 8. Mr. Terek also testified that Respondent’s repeated convictions were concerning, even though they occurred almost eight years ago. 9. Mr. Mosono pointed out that A.R.S. § 32-1122(D) was not mandatory because it provided that “[l]ack of good character and reputation may be established by showing that a person . . . committed any act that, if committed or done by any licensed contractor, should be grounds for suspension or revocation of a contractor’s license . . . .” [Emphasis added.] Mr. Terek admitted that A.R.S. § 32-1161(C) allowed the Registrar to lift the revocation of a license that had occurred under A.R.S. § 32-1154(A)(8) because a person listed on the license had been convicted of a felony. 10. Mr. Mosono was born in 1975. In March 2002, he was 26 years old. He had come from a good neighborhood in Long Island, New York and had a college degree. He had been using drugs since he was 17 years old. When he came to Arizona, he lacked direction. 11. Mr. Mosono testified that the first arrest that resulted in a conviction occurred on January 27, 2002. He had just moved to Arizona from New York and had a drug problem. Mr. Mosono submitted the presentence report in Maricopa County Superior Court Case No. CR2002-090919, which stated that Mr. Mosono had admitted to police that he had just injected heroin and had used heroin “on and off” for six years. The presentence report stated that “[a]ssessments indicate the defendant has a drug problem and is fairly motivated to attend treatment.” 12. Mr. Mosono also submitted the petition for early termination of probation or unsupervised probation that was submitted in Maricopa County Superior Court Case No. 2002-091502 on September 28, 2003. The recommendation was made for the following reasons: The defendant has completed approximately two years of a three year probation grant. He successfully granted from intensive probation supervision. The defendant has since reported as directed, completed substance abuse treatment, and has paid all fines and fees in full.

Upon the defendant’s probation being modified to standard supervision, there was a concern that the defendant was assisting in the operations of several halfway houses owned by his wife. However, since that time, the defendant attests that he has not had any role in running the programs.

Given the fact that the defendant has successfully completed all conditions of probation and currently scores as a minimum supervision level on the Field Reassessment Offender Screening Tool, this officer respectfully recommends the Court consider this case for an early termination.

13. Mr. Mosono testified that the chronology of his arrests was confusing. The first arrest occurred on January 27, 2002. He was released after the arrest on 35th Ave. in Phoenix at 4:00 a.m. with a drug habit. 14. Mr. Mosono testified that he was again arrested for impersonation on February 6, 2002 because he was using a fake I.D. He was released on February 26, 2002. 15. Mr. Mosono testified that his third arrest was on March 25, 2002, when he was arrested for forgery after he presented himself as someone else to get a food card. 16. Mr. Mosono testified that he had never been arrested for theft of a credit card. Instead, that offense had been added to the plea agreement based on a report to the police made by a former roommate in September 2001. 17. Mr. Mosono testified that, when he was found to be in violation of the terms of his probation in December 2002, he was in jail because he had not reported to his probation officer. 18. Mr. Mosono testified that, between January 27, 2002 and March 5, 2002, he had been living an “atypical lifestyle,” which had been the result of the disease of drug addition. He has been sober since March 22, 2002. It has been more than eight years since he has taken a drug or a drink. 19. Mr. Mosono testified that he decided to get sober because he had been arrested three times in three months, which was “not who he was.” He was facing a presumptive prison term of 10 years. He went through detoxification while in jail “with the help of God,” not medication. 20. Mr. Mosono testified that he went to school and obtained an associates degree in substance abuse counseling. He started ten half- way houses with a total of 95 beds with the help of his wife. He “fixed up” the houses and improved the neighborhoods in which they were located. 21. Currently, Mr. Mosono is no longer with his wife. He is active in a 12-step program and runs a half-way house in which five persons with drug or alcohol addiction reside, which has been accepted by the Arizona Department of Corrections and Maricopa County. Mr. Mosono had no documents to show the accreditation. 22. Mr. Mosono testified that, as part of his rehabilitation, he also learned the air conditioning trade, took tests, and the completed the steps necessary to apply to the Registrar for a contractor’s license. He has invested time and money in his business by purchasing Quickbooks software and trucks, setting up an office, and making arrangements to enable the business to accept credit cards. The letters that the Registrar sent out to his employment references came back “really good.” 23. Mr. Mosono testified that he has been employed in the air conditioning trade for the past four years. During this time, he has had access to customers’ credit cards and personal information and has never violated his employers’ or customers’ trust. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction.[1] Mr. Mosono as license applicant bears the burden of proof and must establish that he meets all statutory requirements for licensure by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] 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.”[4] The Registrar denied Mr. Mosono’s application for a contractor’s license because he had not demonstrated that he was a person of good character and because he had two felony convictions. These two grounds are interrelated.[5] As evidence of lack of good reputation and character, the Registrar at the hearing referred to Mr. Mosono’s disclosed felony convictions. The purpose of a licensing proceeding “is to maintain sound professional standards of conduct for the purpose of protecting the public and the standing of the . . . profession in the eyes of the public.’”[6] There are public interests at stake in a licensing proceeding that “are . . . not addressed by the underlying criminal proceeding.’”[7] Mr. Mosono has been convicted of not one but two felonies that involve dishonesty. He admitted at the hearing that, for about nine years during his early adulthood, his lifestyle involved drug use that compromised his ability to behave responsibly or honorably. Mr. Mosono credibly testified that he has turned his life around. His accomplishment is highly commendable. But Mr. Mosono’s claimed sustained rehabilitation was not corroborated by any other witness or document. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar affirm its decision to deny the application of Dancorp Air Conditioning Company, Pending License No. 260085, Class K-79. Done this day, May 20, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at page 1182 (6th ed. 1990). [5] See A.R.S. §§ 32-1122 and 32-1154(A)(8). A.R.S. § 32-1122 provides among the qualifications for a contractor’s license:

[E]ach person shall be of good character and reputation. Lack of good character and reputation may be established by showing that a person has engaged in contracting without a license or committed any act that, if committed or done by any licensed contractor, would be grounds for suspension or revocation of a contractor’s license . . . .

A.R.S. § 32-1154(A)(8) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[c]onviction of a felony.” [6] Schillerstrom v. State Board of Chiropractic Examiners, 180 Ariz. 468, 470, 885 P.2d 156, 158 (App. 1994), review denied, December 20, 1994 (quoting Kaplan v. Department of Registration and Educ., 46 Ill. App. 3d 968, 5 Ill. Dec. 303, 308, 361 N.E.2d 626, 631 (1977) (citations omitted). [7] Id. at 470-71, 885 P.2d at 158-59 (quoting Matter of Rabideau, 102 Wis. 2d 16, 26-27, 306 N.W.2d 1, 7, appeal dismissed, 454 U.S. 1025, 102 S. Ct. 559, 70 L. Ed. 2d 469 (1981) (citations omitted)).

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