ALJDEC decisions subject to certification as final

2010A-308472637-ROC · Registrar of Contractors · 2010-07-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 14, 2010 and July 29, 2010. APPEARANCES: The Applicant appeared through its owner and qualifying party, Aaron Antone Deal. The Registrar of Contractors appeared by and through Assistant Attorney General, Montgomery Lee. . ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The Applicant, Blackhills Excavating LLC (LLC) has filed an application for a Class K-2 Grading, Excavating and Oil Surfacing License. 2. Aaron Antone Deal is the managing member, owner and proposed qualifying party for the Applicant. 3. On March 16, 2010, the Registrar of Contractors issued a letter denying the Applicant’s license application. The letter denying the application provides, in relevant part, as follows: You are hereby notified pursuant to A.R.S. § 32-1124 that your license application is denied. We find that the applicant does not qualify for the Class K-2 Grading, Excavating and Oil Surfacing license based on the following: 1. Aaron Antone Deal has failed to establish good character and reputation as required by A.R.S. § 32-1122.D. 2. Aaron Antone Deal 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. 4. The Appliance then requested an administrative hearing. 5. There was no dispute that on June 26, 1997, Aaron Antone Deal was convicted of Endangerment, a class 6 undesignated felony, in Maricopa County Superior Court, Case No. CR1997-000834. 6. There was no dispute that on May 31, 2001, Aaron Antone Deal was convicted of two (2) counts of Aggravated Harassment; both class six (6) undesignated felonies, in Maricopa County Superior Court, Case No. CR2001- 090954. 7. There was no dispute that on March 14, 2003, Aaron Antone Deal was convicted of Possession of Drug Paraphernalia, a class six (6) undesignated felony, in Maricopa County Superior Court, Case No. CR2002- 095177. 8. There was no dispute that on May 29, 2003, Aaron Antone Deal was convicted of Possession of Drug Paraphernalia, a class six (6) undesignated felony, in Maricopa County Superior Court, Case No. CR2002- 021227. 9. There was no dispute that on May 29, 2003, Aaron Antone Deal was convicted of Aggravated Harassment, a class five (5) felony, in Maricopa County Superior Court, Case No. CR2002-098151. 10. There was no dispute that Aaron Antone Deal was sentenced to one and one half years imprisonment for the class five felony conviction. 11. Credible testimony and evidence established that Aaron Antone Deal successfully served his prison sentence and was released from probation on January 23, 2007. 12. Aaron Antone Deal admitted that the six (6) felony convictions set forth in the denial letter were true and correct. 13. Aaron Antone Deal testified that he went through two (2) successive contentious divorces during the time period of his felony convictions and that the felony convictions were directly related to the mental stress of the two difficult divorce actions. 14. Aaron Antone Deal testified that it has been many years since he has been released from prison and that in view of the length of time that has passed his past felony convictions should not preclude him from obtaining a contractor’s license. 15. Aaron Antone Deal testified that he was attempting to have all of the undesignated class six (6) felony convictions reduced to misdemeanors. 16. Credible testimony and evidence established that Aaron Antone Deal has not been convicted of any felony crimes since his release from prison and that he is not now on probation or parole. 17. A character witness appeared for Aaron Antone Deal and testified that she had known Mr. Deal for several years and that, in her opinion, Aaron Antone Deal had been reformed and was now a good citizen with an outstanding work ethic. 18. Notice is taken of the plea agreement set forth in CR 2002-098151 (Exhibit No. 5, page 6) wherein the State agreed to file no further charges of Aggravated Harassment. Threatening and Intimidating and Interfering with Judicial proceedings for nineteen (19) different counts. 19. Credible testimony and evidence established that the Registrar of Contractors based its denial of the license application at issue on the basis that Aaron Antone Deal had not sufficiently demonstrated his good character and his repeated felony convictions. 20. Undisputed credible testimony and evidence supports a finding that Aaron Antone Deal has been convicted of five (5) class six (6) felonies and one (1) class five (5) felony. 21. The credible evidence of record in found to be insufficient and fails to support a finding that Aaron Antone Deal has sufficiently demonstrated his good character to the extent necessary to obtain a contractor’s license.

CONCLUSIONS OF LAW

1. The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. § 41-1092. 2. A.R.S. § 41-1092.07 (G) provides, in relevant part, as follows: At a hearing on a denial of a license or permit, the applicant has the burden of proof. 3. Office of Administrative Hearings Rule R -2-19-119 entitled “Proof” provides, in pertinent part, as follows: A Standard of Proof: Unless otherwise provided by law, the standard of proof is a preponderance of evidence. B. Burden of Proof: Unless otherwise provided by law; 1. The party asserting a claim, right, or entitlement has the burden of proof; 2. A party asserting an affirmative defense has the burden of establishing the affirmative defense. 4. In this matter the Applicant has the burden of proof to demonstrate by a preponderance of credible evidence why its license application should not be denied. 5. The law in Arizona requires that an Applicant for a Contractor’s License demonstrate good character and reputation in addition to the requisite skills necessary in order to obtain such a license. In this matter, there was no dispute that Aaron Antone Deal has been convicted of five (5) class six felonies and one (1) class five felony for which he served one and one half years in prison. 6. These six (6) felony convictions, if committed or done by a licensed contractor, would be grounds for suspending or revoking the contractor’s license pursuant to A.R.S. § 32-1154A (8) (Conviction of a felony). 7. A.R.S. § 32-1154B provides that the Registrar may impose lesser discipline for acts or omissions set forth in subsection A. In like manner A.R.S. § 32-1122D provides only that such acts or omissions may establish a lack of good character and reputation. 8. Accordingly, the six (6) felony convictions of Aaron Antone Deal may be grounds for denying the Applicant a contractor’s license for a lack of good character and reputation. However, the wording of the referenced statutory section, when considered contextually, does not mandate such a denial, rather the language used contemplates a degree of discretion. 9. Given the relatively brief passage of time from the completion of Aaron Antone Deal’s prison sentence and the number of felony convictions this tribunal concludes that it is reasonable to question whether Aaron Antone Deal has sufficiently established the good character and reputation that the Registrar of Contractors must require of its licensees in order to protect the public. 10. Credible testimony and evidence supported findings that establish that the Applicant’s license application was properly denied by the Registrar of Contractors on the basis that Aaron Antone Deal has failed to establish good character and reputation and has been convicted of six (6) felonies. 11. Notwithstanding the foregoing conclusion that the Applicant’s license application was properly denied in this instance, such a conclusion should not be construed as a basis for continuing denials should a future application, as allowed by law, be filed by the Applicant. Provided that Aaron Antone Deal continues to pursue, achieve, and maintain a good work ethic and social responsibility, it is likely that he would establish the required good character and reputation necessary to qualify for a contractor’s license.

RECOMMENDed order

In view of the foregoing, it is recommended that the denial of the Applicant’s pending Class K-2 License be affirmed and that any license bond and/or recovery fund fee be returned to the Applicant in due course. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order will be 40 days from the date of the certification. Done this day, July 30, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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