ALJDEC decisions subject to certification as final

2011A-5419-ROC · Registrar of Contractors · 2011-11-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 8, 2011 at 1:00 p.m. APPEARANCES: The Applicant appeared through its attorney, Jeffrey R. Adams. The Registrar of Contractors appeared 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, Able and Ready Construction, LLC, (LLC) has filed an application for a Class C-08 License. 2. Christopher Turcott Hartman is the managing member, owner and proposed qualifying party for the Applicant. 3. On September 12, 2011, the Registrar of Contractors denied the license application at issue on the following basis: 1. Christopher Turcott Hartman has failed to establish good character and reputation as required by A.R.S. § 32-1122D. 2. Christopher Turcott Hartman 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. 3. Christopher Turcott Hartman has failed to provide the requisite verification of his experience pursuant to A.R.S. § 32-1122.F.1. 2. The Applicant disagreed with the Registrar of Contractors’ determination to deny its license application and requested an administrative hearing. 3. There was no dispute that On December 1, 2006, the Christopher Turcott Hartman had previously submitted an application to the Arizona Registrar of Contractors (ROC) for a Class C-34 (Painting and Wall Covering) License under the name of Able and Ready Painting (Indiv). 4. There was no dispute that the previous license application had been denied based on the multiple felony convictions of Christopher Turcott Hartman and the fact that Christopher Turcott Hartman had only been out of prison for the two years and nine months at that time. 5. There was no dispute that Christopher Turcott Hartman had been convicted of felony counts of burglary and theft in 1992. 6. There was no dispute that in 1995, Christopher Turcott Hartman was convicted of two felony counts of Forgery. 7. There was no dispute that in 1997, the Applicant was convicted of Criminal Deprivation of a Motor Vehicle and Driving Under the Influence (DUI) and on December 7, 1998, the Applicant was convicted of two counts of Burglary and one felony count of Theft. 8. Credible testimony and evidence established that after Christopher Turcott Hartman’s release from prison on June 14, 2004, he moved to Prescott, Arizona and successfully completed a two month live in drug rehabilitation program (Prescott House Drug and Rehabilitation). 9. Credible testimony and evidence established that Christopher Turcott Hartman continues to participate in drug recovery treatment and regularly sees a therapist to monitor his drug recovery. 10. The Applicant has worked for Ponderosa Electric, Inc. for several years. At this time, he manages and supervises all types of work for Ponderosa Electric, Inc., and has demonstrated ability in the financial and office management of the Ponderosa electric. 11. The Applicant’s employer, Don Amos, testified that he is aware of Christopher Turcott Hartman’s drug history and criminal past. He initially hired Mr. Hartman as a laborer but soon thereafter gave him increasingly more responsibility. Mr. Amos testified than Mr. Hartman is trustworthy and reliable, and he recommended that a contractor’s license be issued to Mr. Hartman. 12. Ms. Mary Ann Suttles, a city councilperson for the City of Prescott, testified that Mr. Hartman had worked at her residence and that she was aware of Mr. Hartman’s criminal past. She strongly recommended that Mr. Hartman be granted a contractor’s license despite his past felony convictions. 13. Several other people residing in the Prescott area also testified, and all of the witnesses recommended that a contractor’s license be issued to Mr. Hartman, despite his past felony convictions. 14. Credible testimony and evidence established that Christopher Turcott Hartman has established good character in the Prescott area and is well regarded for his honesty and ability. 15. Based on the record of the hearing, Christopher Turcott Hartman has not had any problems which would reflect adversely on his character since his release from prison, (a period of approximately ten years). However, as stated, the mere absence of problems does not re-establish good character. 16. Credible testimony and evidence established that Christopher Turcott Hartman is in a permanent relationship. He is employed, and he is described as a supportive friend and caring citizen. He has the support of friends and associates and has an excellent reputation for ability and honesty. Given the entirety of the record, the Christopher Turcott Hartman appears to be a person of present good character and reputation. It also appears the Christopher Turcott Hartman’s attributes of good character tend towards permanency and are not transitory. 17. The representative of the Registrar of Contractors acknowledged that the primary reason for the denial of the contractor’s license at issue was the past felony convictions of Christopher Turcott Hartman, rather than the alleged failure of the Applicant to provide the requisite verification of Mr. Hartman’s construction experience. 18. There was no dispute that despite the fact that it evidently was not the primary reason for denying licensure in this matter, providing the requisite verification of experience is mandated pursuant to the provisions of A.R.S. § 32-1122 (F) (1). 19. The credible testimony and evidence of record is insufficient and fails to support a finding that Christopher Turcott Hartman has provided the requisite verification of Christopher Turcott Hartman’s experience required by applicable statute. Conclusions of Law 1. A.R.S. §32-1122 (D) provides in pertinent part that to obtain a license, a person shall be of good character and reputation. Lack of good character and reputation may be established by showing the person has committed any act which is grounds for suspension or revocation of a license. 2. Under A.R.S. §41-092.07 (G), in a hearing on a denial of a permit or a license, the burden of proof is on the Applicant. 3. The Registrar’s concern in this case is legitimate and well founded. A person with an extensive criminal record which relates to dishonesty, fraud, and a general lack of honesty must be given close scrutiny and careful consideration. 4. The issue of what constitutes good character or a lack thereof is nebulous at best. A review of cases does not provide a ready or facile definition. As stated by Justice Frankfurter in his concurring opinion in Schware v. Board of Bar Examiners of the State of New Mexico, 533 U. S. 234, 77 S.Ct. 752 (1957): No doubt satisfaction of the requirement of moral character involves an exercise of delicate judgment on the part of those who reach a conclusion, having heard and seen the applicant for admission, a judgment …that it expresses ’an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions, impressions which may lie beneath consciousness without losing their worth.

5. The above tends to support an ad hoc decision making process. Absent specific standards, there is little to give clear direction to an applicant with regard to how much time must pass or what will be considered in making determinations of good character when a person has sustained a criminal conviction. 6. Once good character is shown as absent, it is not automatically regained by the mere passage of time. Some positive and affirmative activities over time are required for a person to regain what was lost. The question is what an Applicant must do to satisfy its burden. A.R.S. §32- 1122(D) is permissive, but the Registrar’s discretion to deny a license must be based on standards which apply equally to all applicants. The Registrar is given discretion to deny a license if the Applicant has been shown not to be a person good character and reputation. Absent specific rules, discretion as used in the statute means an exercise of sound judgment based on the application of reason and generally accepted principles of what current conduct constitutes good character, or lack thereof, to the facts presented in the case. Good character is not amenable to being described with mathematical precision, and in the absence of such precision or clearly defined standards good character or the lack thereof, must be decided on a case by case basis. 5. The vigilance and concern of the Registrar is essential and legitimate in light of the grievous nature of Christopher Turcott Hartman’s numerous past felony convictions. However, it must be acknowledged that an extended period of time has passed since Christopher Turcott Hartman’s felony convictions and that he has developed a reputation in the Prescott area community for honesty, reliability and ability. It is also understood that the conviction of a felony, even multiple felony convictions, is not a permanent bar to being licensed. 6. Credible testimony and evidence supported findings which establish that the Applicant has met its burden of proof to establish that Christopher Turcott Hartman has sufficient good character and reputation to satisfy the statutory requirement for a license. 7. The burden of proof to establish the requisite construction experience necessary to obtain a contractor’s license is upon the Applicant in all cases. 8. A.R.S. § 32-1122 (F) (1) provides, in pertinent part, as follows: F. Before a license is issued, the qualifying party shall: 1. Have had a minimum of four years' practical or management trade experience, at least two of which must have been within the last ten years, dealing specifically with the type of construction, or its equivalent, for which the applicant is applying for a license. Technical training in an accredited college or university or in a manufacturer's accredited training program may be substituted for a portion of such experience, but in no case may credited technical training exceed two years of the required four years' experience. The registrar of contractors may reduce the four years' practical or management experience requirement if in the registrar's opinion it has been conclusively shown by custom and usage in the particular industry or craft involved that the four year requirement is excessive. The registrar may waive the work experience documentation and verification or the examination requirement if the records reflect that the qualifying party is currently or has previously been a qualifying party for a licensee in this state in the same classification within the preceding five years.

9. The credible testimony and evidence of record was insufficient and failed to support a finding that the Applicant’s qualifying party, Christopher Turcott Harman, has provided the requisite verification of experience required by applicable statute. 10. Although not the primary issue at hearing, the failure of the Applicant to provide satisfactory verification of Christopher Turcott Hartman’s construction experience as required by applicable statute for all Applicants for licensure precludes a recommendation that a license be issued in this matter. Recommended Order It is recommended that the decision of the Registrar of Contractors denying the Applicant’s application for the pending C-08-R.274298-R license based upon the Applicant’s failure to provide the requisite verification of Christopher Turcott Hartman’s construction experience be affirmed. . 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, November 18, 2011.

/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