ALJDEC decisions subject to certification as final

2012A-3282-ROC · Registrar of Contractors · 2012-09-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 20, 2012

APPEARANCES: Applicant D & L Building & Remodeling, LLC appeared through counsel Mark Hanson, Esq., accompanied by Member Lisa Crabtree, Member Dennis Lee Crabtree, and Member and potential Qualifying Party Erik Scott Fesler; the State of Arizona, Registrar of Contractors, was represented by Assistant Attorney General John Tellier, Esq. and ROC Chief of Licensing Lawrence Matthews.

WITNESSES: For Applicant: Lisa Crabtree Betty Undlin, The Bridge halfway house Lt. Col. Alex Wilson, Az. Air Nat. Guard Jacki Manor, ADOC Parole Officer (ret.)

For the ROC: Lawrence Matthews

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Applicant D & L Building & Remodeling, LLC, (“Applicant”) brings this appealable agency action challenging the Arizona Registrar of Contractors’ (“ROC” or “Registrar”) denial of its application for a Class KB-2 dual residential and small commercial contracting license. The ROC based the denial on a finding of lack of good character and reputation for both Dennis Lee Crabtree and Erik Scott Fesler. With regard to Dennis Lee Crabtree, the ROC relies for its finding on a criminal history with many misdemeanors and a felony conviction for which he went to prison, as well as his activities as an unlicensed handyman. With regard to Erik Scott Fesler, the ROC relies on Fesler’s activities as a qualifying party on a prior license. Applicant disagrees with these findings, asserting that both men have good character and reputation.[1] This tribunal entered the application file received from the Registrar of Contractors into the record, along with marked Exhibits 1 through 19 from the ROC (excluding Exhibits 2a and 5),[2] and Applicant’s Exhibits A through H (excluding E and F). The parties presented evidence and testimony from the witnesses listed above at the hearing. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommend Order finding that Applicant has established the good character and reputation of Dennis Lee Crabtree and Erik Scott Fesler.[3] FINDINGS OF FACT 1. On January 25, 2012, Applicant applied for a Class KB-2 dual residential and small commercial contracting license with the ROC.[4] On May 23, 2012, the ROC issued a letter denying the application for six listed reasons as follows: 1. Dennis Lee Crabtree doing business as D & L Building & Remodeling LLC has failed to establish good character and reputation as required by A.R.S. § 32-1122.D.

2. Dennis Lee Crabtree doing business as D & L Building & Remodeling LLC has performed and offered services requiring a contractor’s license in violation of A.R.S. § 32-1151 [prohibiting contracting without a license or holding oneself out as a contractor without a license][5] and A.R.S. § 32-1121.A.14(c) [requiring those operating and advertising as a “handyman” to disclose that they are not licensed].

3. D & L Building & Remodeling LLC’s qualifying party Erik Scott Fesler did not adequately supervise the work performed under his previous license in violation of A.R.S. § 32-1154.A.3 (namely) R4-9- 108 [prohibiting poor workmanship].

4. D & L Building & Remodeling LLC’s qualifying party Erik Scott Fesler failed to comply with the minimum element [sic] of a contract under his previous license in violation of A.R.S. § 32-1158.

5. D & L Building & Remodeling LLC’s qualifying party Erik Scott Fesler failed to comply with a Corrective Work Order within a reasonable amount of time under his previous license in violation of A.R.S. § 32-1154.A.23.

6. D & L Building & Remodeling LLC’s qualifying party Erik Scott Fesler allowed contracts using a name other than as set forth upon the license and ignored warnings from the ROC under his previous license in violation of A.R.S. § 32-1155.A.15.[6]

The specific facts upon which the ROC relies for the denial are explained in the next five pages of the denial letter, which is divided into sections concerning Dennis Crabtree’s criminal conviction history, his activities and advertising as a handyman, and Erik Fesler’s activities as a qualifying party for another license. Criminal History 2. Exhibit 2 contains evidence regarding Dennis Crabtree’s criminal history, gathered from public court information. There is no documentation in Exhibit 2 concerning the one felony conviction that is alleged in the May 23, 2012, application denial letter (hereinafter “denial letter”).[7] The denial letter states that Dennis Crabtree was convicted of second- degree escape from a correctional facility, a felony, and sentenced to a term of imprisonment in June 2005. Other evidence shows that he was released on parole in 2007. The denial letter states that he was discharged from parole in late 2007. 3. Applicant does not deny the felony conviction. Indeed, one of Applicant’s witnesses, Jacki Manor, who had been Dennis Crabtree’s parole officer in 2007, testified that the escape conviction was based on an event in which Dennis Crabtree did not return to jail while on a work release status because he had a drug relapse. Thus, Applicant has admitted the felony conviction of Dennis Crabtree, but the record is without any documentation that would add detail or specificity to the nature of it. However, this tribunal finds Jacki Manor’s testimony to be generally credible and her explanation of the circumstances of the escape conviction is accepted. 4. Therefore, the evidence shows that Dennis Crabtree has a felony conviction from June 2005 as described above, and served time in prison for it. Neither party offered any court documents concerning the felony conviction. This tribunal can make no further findings regarding it. 5. The criminal history in Exhibit 2 consists of internet public access information from Tucson Municipal Court. It consists of both criminal misdemeanor information and information about traffic offenses. The traffic offense information shows traffic citations from a brief period in 1986 (over 20 years ago) and many more from various periods between 1998 and 2005. Many of the traffic offenses were dismissed. The traffic offenses for which Dennis Crabtree was found responsible consisted of violations such as lack of insurance, lack of registration, and driving while his license was suspended. It appears that Dennis Crabtree was convicted of a criminal traffic offense for false reporting to law enforcement and/or driving while his license was suspended in January 2005. It also appears from the public access documentation in Exhibit 2 that fines and other payments were completed in 2007. 6. The criminal conviction information in Exhibit 2 shows that in 1986 Dennis Crabtree was convicted of criminal traffic offenses for failure to register in Arizona and no proof of insurance. In addition, the information also shows that he was convicted of misdemeanors for shoplifting in 1998, possession of drug paraphernalia and theft in 1999, contributing to the delinquency of a minor in 2002, violation of promise to appear in 2004, and possession of drug paraphernalia again in 2005. He received probation for all of those convictions. 7. Lisa Crabtree married Dennis Crabtree in early 2008. She first met him at a Bible study in 2007, after he got out of prison. She testified that he immediately told her about his past, including his criminal record, and that he was a drug abuser from the late 1990’s through 2005, which accounted for his behavior. She testified that he told her, and anyone else who cared to know, that just before he went to prison in 2005 he had a personal experience with God that changed him and he turned from his former way of life. She testified that she believed this. 8. Betty Undlin operates, with her husband, a Prison Fellowship halfway house for Christian men who are on parole, called The Bridge. She described herself as a “house mother” and her description of The Bridge suggests a boarding house atmosphere. She lives there with her husband and about 13 parolees. When Dennis Crabtree was released on parole in 2007, he lived at The Bridge for seven months and has kept in close contact with her since then. Before she allowed him to live there, she did a background check of him. Both she and his parole officer, Jacki Manor, testified that he had no infractions of the rules while he was in prison. They both remarked that it is rare for them to see that on a prisoner’s record. Mrs. Undlin praised him for his attitude and work ethic. She especially praised his integrity and had no hesitation when she testified that she would trust him with construction work. In fact, he has done many small jobs at The Bridge. Finally, Mrs. Undlin testified that The Bridge’s Board of Directors is taking the unprecedented step of asking Dennis Crabtree to be a member of the Board. 9. Jacki Manor testified at the hearing and also gave high praise to Dennis Crabtree’s character and integrity. As his parole officer when he was on parole, she was aware of his criminal history, but she was pleased with his attitude and conduct as a parolee. She also has kept in touch with him. She testified that he had no “write-ups” in prison and that he has had his full civil rights restored by the courts, including the right to carry a firearm. 10. Lt. Col. Alex Wilson is a pilot with the Arizona Air National Guard and a friend of Dennis Crabtree. He, too, testified about Dennis Crabtree’s high integrity. Lt. Col. Wilson did not know Dennis Crabtree before 2007, but is aware of his past and sees none of that behavior in his recent character. 11. This tribunal finds the character witnesses for Dennis Crabtree to be credible and knowledgeable witnesses as to his current character and reputation. Their positive character references are given great weight. Handyman Advertising and Activities 12. The denial letter alleges that Dennis Crabtree performed unlicensed contracting and failed to properly advertise while he operated as “D & L Handyman Unlimited.” These allegations are based on a website of “D & L Handyman,” a paper version of which was admitted as Exhibit 6 (printed 8/16/2012). The website clearly belongs to Dennis Crabtree. It speaks in generalities about repairs and remodeling for bathrooms, roofing, electrical, concrete, drywall, masonry, and more. It offers “home & business repairs, as well as remodeling projects.” It also talks about helping with “regular maintenance and repair” and that it is “insured and bonded.” In addition, photographs of work done by Dennis Crabtree are shown on the website. In Exhibit 6, the words “Not a licensed contractor” appear. In May 2012, the ROC issued a Cease and Desist Order to Dennis Crabtree because, at that time, the words “Not a licensed contractor” did not appear on the website.[8] 13. The denial letter states that Dennis Crabtree has violated the provision requiring those operating as unlicensed contractor’s under the so- called “handyman” exemption by not properly advertising. The evidence supports that statement as of May 3, 2012, but also shows that Dennis Crabtree has complied with the Cease and Desist Order. 14. The denial letter also states that services offered by the website require a building permit. This is pure speculation. No witness with knowledge of the jobs done by Dennis Crabtree has stated such. Neither has the ROC brought such charges against Dennis Crabtree in a formal process. There has been no finding that Dennis Crabtree has performed construction that requires a building permit, and the evidence does not support such a finding here. Erik Fesler’s Activities as a Qualifying Party for Another License 15. Uncontested evidence shows that Erik Fesler was the Qualifying Party until January 2012 on a license issued by the ROC to Prime Builders and Development, Inc. (“Prime Builders”).[9] There are four allegations against Erik Fesler’s character in the denial letter, all based on a complaint filed against Prime Builders[10] in December 2011: (1) that he did not adequately supervise work performed under the license for Prime Builders; (2) that a Prime Builders’ contract did not meet statutory requirements; (3) that Prime Builders did not comply with a Corrective Work Order (“CWO”) “within a reasonable amount of time;” and (4) that Prime Builders used a different name than that on the license and “ignored warnings from the ROC” about it. None of those allegations have been proven because the complaint was closed as resolved. 16. The record shows that in January 2012, after the homeowner filed a complaint against Prime Builders, a CWO was issued requiring Prime Builders to correct some roof leaks and any related damages.[11] About the same time, Erik Fesler disassociated from Prime Builders.[12] A Citation and Complaint was issued by the ROC in February 2012, citing the four alleged violations that are in the denial letter.[13] Also in February 2012, the ROC issued a letter to Applicant stating that the processing of the application would not continue until the complaint against Prime Builders was resolved: “Can not (sic) issue license until the complaint is settled.”[14] 17. On April 6, 2012, the complainant against Prime Builders filed a letter with the ROC stating that Erik Fesler made all the necessary repairs and that she was withdrawing her complaint.[15] She also noted that she did not want her complaint to be “a hindrance” to Erik Fesler’s pending license application.[16] The ROC issued an Order of Closing on April 27, 2012, noting that the case has been resolved.[17] 18. Because the complaint against Prime Builders was closed without finding any violation of the statutes in the Citation and Complaint, this tribunal finds that the evidence does not support the four bases alleged as evidence of lack of character for Erik Fesler. CONCLUSIONS OF LAW 1. Applicant must show that it meets the qualifications for licensure.[18] One of those qualifications is that persons named on a license be persons of good character and reputation.[19] By statute, lack of good character and reputation may be established by showing (1) that a person has engaged in contracting without a license, or (2) that a person has committed any act that if committed by a licensee would be grounds for disciplinary action against the licensee, or (3) that a person has been named on a contractor’s license that was suspended or revoked in another state.[20] In this case, the ROC has not established lack of good character for either Dennis Crabtree or Erik Fesler. 2. Conviction of a felony is grounds for disciplining a licensee.[21] Therefore, it may be used to establish lack of good character for an applicant. Here, Dennis Crabtree has provided substantial and persuasive evidence that, although he has a serious felony conviction and other misdemeanor convictions and traffic offenses in his past, he has been rehabilitated and has established a good character and reputation in his community at this time. He was a model prisoner and parolee. He successfully completed his sentence and his civil rights have been restored. He has established a stable family and home life and has been employed steadily to support his family. He has also established relationships and friendships with respected members of the community. These activities establish a good character and reputation. 3. Next, the evidence does not show that Dennis Crabtree performed unlicensed contracting. He did advertise in contravention of the exemption statute, but he promptly addressed the Cease and Desist Order that was issued. That single infraction does not create a lack of character for Dennis Crabtree. 4. Finally, the allegations that form the basis of the ROC’s attempt to establish lack of character for Erik Fesler are based on a complaint that has been closed without finding a violation of the statutes. This tribunal does not conclude that a single closed complaint establishes a lack of character for the persons associated with the license that is the subject of that complaint. 5. Applicant has shown that Dennis Crabtree’s felony conviction from 2005 and criminal history does not establish a lack of good character and reputation because Applicant has proven that Dennis Crabtree is rehabilitated and has regained a good reputation since 2008. Furthermore, a single Cease and Desist Order that has been timely complied with does not show lack of good character and reputation. Neither does a single closed complaint against a previous license that the proposed Qualifying Party was associated with. RECOMMENDED ORDER IT IS RECOMMENDED that the Registrar of Contractors grant the application of D & L Building and Remodeling, LLC.

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 40 days from the date of that certification.

Done this day, September 10, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The good character and reputation of Lisa Crabtree is not at issue. [2] Although Exhibits 14 and 18 were not moved into evidence, they are on file with the ROC and, therefore, this tribunal takes administrative notice of them. Exhibit 2a, which was not admitted, consists of two pages of criminal history related to Dennis Rodney Crabtree, not Dennis Lee Crabtree. [3] Hereinafter, these men will be referred to as Dennis Crabtree and Erik Fesler, respectively. [4] Exhibit 4. [5] Bracketed comments added by the Administrative Law Judge. [6] Exhibit 1. [7] Neither is there documentation of the felony conviction in the agency record sent by the ROC to this tribunal as a .pdf file. [8] Exhibit 8 (printed 5/3/2012). [9] Exhibit D. [10] Exhibit 17. [11] Exhibit 13. [12] Exhibit 18. [13] Exhibit 12. [14] Exhibit A. [15] Exhibit B. [16] Id. [17] Exhibit C. [18] Arizona Revised Statutes (A.R.S.) § 41-1092.07(G)(1). [19] A.R.S. § 32-1122(D). [20] Id. [21] A.R.S. § 32-1154(A)(8).

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