ALJDEC decisions subject to certification as final

2013A-5439-ROC · Registrar of Contractors · 2014-04-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 1, 2014, at 1:00 p.m. APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General, Michael Raine. John Julius Pairrett dba Arizona Leak Detection (hereinafter “Mr. Pairrett” or “Respondent”) appeared on his own behalf. 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 Background Mr. Pairrett is the holder of License No. C37R.140510-R issued by the Registrar. License No. C37R.140510-R is a residential contractor’s license for the construction and installation of residential swimming pool plumbing and equipment.[1] License No. C37R.140510-R was issued by the Registrar on or about November 26, 1998. On November 25, 2013, Mr. Pairrett pled guilty to the Class 6 undesignated felony of attempting to Commit Production of Marijuana in violation of A.R.S. §§ 13-1001, 13-3401, 13-3405(A)(3), 13-3418, 13-3423, 13-701, 13- 702, 13-707, 13-801, and 13-802.[2] As part of Mr. Pairrett’s sentencing for the Class 6 undesignated felony conviction, the State alleged that he had a prior felony conviction pursuant to A.R.S. § 13-703 or A.R.S. § 13-704. The State alleged that Mr. Pairrett had been convicted of the crime of Reckless Homicide, a felony, on August 1, 1967, in the State of Illinois. The State also alleged that Mr. Pairrett had been convicted of the crime of Burglary, a felony, on February 6, 1986.[3] In his written answer, Mr. Pairrett acknowledged that he had pled guilty to a Class 6 undesignated felony offense. Mr. Pairrett stated that he pled guilty to the Class 6 undesignated felony offense based on the State’s agreement that the felony conviction would be reduced to a misdemeanor conviction.[4] Testimony of Jose F. Gill, Esq. Jose F. Gill, Esq. (hereinafter “Mr. Gill”) testified that he a Staff Attorney with the Registrar’s Legal Department. Mr. Gill stated that he prepared the Citation and Complaint at issue. Mr. Gill testified that in the process of normal research for a consumer complaint that had been filed against Mr. Pairrett, Mr. Gill discovered that Mr. Pairrett had been convicted of a Class 6 felony. Mr. Gill testified that he found that Mr. Pairrett had been found guilty of an attempt to Commit Production of Marijuana, a Class 6 undesignated felony. Mr. Gill stated that the State took action because the police received a tip from an informant that someone was planning to rob Mr. Pairrett. The police then stopped Mr. Pairrett in his car and found marijuana in the vehicle. The police then searched Mr. Pairrett’s residence and found over 100 marijuana plants in Mr. Pairrett’s residence.

Mr. Gill testified that the Court suspended Mr. Pairrett’s sentence and placed him on unsupervised probation. Mr. Gill stated that while a Class 6 undesignated felony may be reduced to a misdemeanor conviction at some point, it is treated as a felony conviction until it is actually reduced to a misdemeanor.[5] Mr. Gill testified that the felony conviction had not been reduced to a misdemeanor conviction as of April 1, 2014. Mr. Gill testified that A.R.S. § 32-1154(A)(8) provides that a felony conviction provides grounds for the suspension or revocation of a contractor’s license.[6] Mr. Gill stated that the possibility of the felony conviction being reduced to a misdemeanor conviction at a later time does not change the fact that it is a felony conviction until it is reduced. Testimony of John Julius Pairrett Mr. Pairrett acknowledged that he was growing marijuana plants in his residence. Mr. Pairrett stated that he had a valid medical marijuana possession card. Mr. Pairrett testified that he pled guilty to the Class 6 felony because the State offered to place him on two years of unsupervised probation. Mr. Pairrett testified that his attorney gave him the option of pleading guilty to the charge or obtaining another lawyer. Mr. Pairrett asserted that everything that he was doing was lawful under his medical marijuana possession card. Mr. Pairrett acknowledged that he had been convicted of the crime of Reckless Homicide, a felony, in 1967. Mr. Pairrett denied that he had been convicted of the crime of Burglary, a felony, in 1986. Mr. Pairrett testified that it was evidently a case of mistaken identity. Mr. Pairrett stated that the State had admitted that the burglary conviction was not part of his record at his sentencing. Mr. Pairrett testified that he was sixteen and a half years old when he was convicted of Reckless Homicide. Mr. Pairrett stated that it was a stupid act and that he had regretted it his entire life. Mr. Pairrett testified that it had been fifty years since his conviction for Reckless Homicide. Mr. Pairrett acknowledged that he failed to disclose his felony conviction for Reckless Homicide in his 1998 Application for Contractor’s License. Mr. Pairrett testified that he was mistaken in his answer to the question on the 1998 Application for Contractor’s License about prior felony convictions. Mr. Pairrett stated that he was under the impression that after he had served his sentence, his record was completely clear. Mr. Pairrett testified that he reviewed his answers on the 1998 Application for Contractor’s License with his attorney and was advised that the Registrar did not have the right to ask that type of question. Mr. Pairrett stated that he did not disclose his felony conviction based upon his attorney’s advice. Mr. Pairrett testified that he was under the impression that his 1967 conviction of Reckless Homicide had been expunged. Mr. Pairrett testified that he had possessed a medical marijuana possession card since April 15, 2010. Mr. Pairrett stated that he was personally allowed to cultivate twelve marijuana plants for his own use. Mr. Pairrett acknowledged that the police found more than twelve marijuana plants at his residence. Mr. Pairrett testified that only twelve of the marijuana plants were his and that the other marijuana plants were for other people. Mr. Pairrett acknowledged that, by the legal definition of plants, there were approximately 78 marijuana plants found in his residence by the police. Mr. Pairrett testified that when the police stopped his car, they found slightly over two ounces of marijuana in his car. Mr. Pairrett stated that he had a legal right to possess more than two ounces of marijuana. Mr. Pairrett testified that for nearly twenty years that he has been a licensed contractor, the Registrar has never had cause to discipline his contractor’s license. Mr. Pairrett stated that a complaint rarely went past the first jobsite inspection. Mr. Pairrett testified that he believed the best way to work with the Registrar was to take care of complaints before they go before the Registrar. Mr. Pairrett testified that he is the president of his neighborhood block watch. Mr. Pairrett stated that he is active in his church and in his community. Mr. Pairrett stated that his Class 6 felony conviction was non- dangerous and non-repetitive. Mr. Pairrett testified that he will never be in trouble again. Mr. Pairrett stated that his wife has died and that he has experienced numerous personal difficulties due to her death. Mr. Pairrett testified that he received a medical marijuana possession card due to continuing pain from a broken back. Mr. Pairrett stated that he is in constant pain. Administrative notice is taken of Mr. Pairrett’s sole proprietorship’s License No. License No. C37R.140510-R as reflected on the Registrar’s public website on April 8, 2014. Such prior license record reflects that Mr. Pairrett’s sole proprietorship License No. License No. C37R.140510-R is current with two open complaints. Mr. Pairrett’s sole proprietorship License No. C37R.140510-R was previously suspended for non-renewal from December 1, 2000, through April 18, 2001, suspended for non-renewal from December 1, 2002, through June 10, 2003, suspended for non-renewal from December 1, 2006, through December 21, 2006, and suspended for non-renewal from December 1, 2010, through March 1, 2011. Mr. Pairrett’s sole proprietorship License No. C37R.140510-R was previously suspended for lack of bond from June 28, 2003, through August 26, 2003, and suspended for lack of bond from June 5, 2005, through March 2, 2006. CONCLUSIONS OF LAW The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119.[7] A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). Mr. Pairrett was convicted of a Class 6 Undesignated Felony, attempting to Commit Production of Marijuana in violation of A.R.S. §§ 13-001, 13-3401, 13-2405(A)(3), 13-3418, 13-3423, 13-701, 13-702, 13-707, 13-801, and 13- 802, on or about November 25, 2013. “[A]n open-ended conviction is deemed a felony conviction until the court designates the offense as a misdemeanor.” In the Matter of Beren, 178 Ariz. 400, 402, 874 P.2d 320, 322 (1994). “The offense shall be treated as a felony for all purposes until such time as the court may actually enter an order designating the offense a misdemeanor.” A.R.S. § 13-702(G). This Tribunal concludes that Mr. Pairrett violated the charged provision of A.R.S. § 32-1154(A)(8). RECOMMENDed order In view of the foregoing, it is recommended that License No. C37R.140510-R of John Julius Pairrett dba Arizona Leak Detection shall be revoked. 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, April 11, 2014.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit No. 1 (License Application and Credential for Arizona Leak Detection). [2] See Exhibit No. 2, 3, and 4 (Maricopa County Superior Court Criminal Docket CR2013-423154-001, Guilty Plea Agreement CR2013-423154-001, and Sentencing Order CR2013-423154-001. [3] See Exhibit No. 5 (State’s allegation of prior felony). [4] See Exhibit No. 6 (Answer to Citation). [5] See Appendix A (A.R.S. § 13-604 (Class 6 felony: designation). [6] A.R.S. § 32-1154(A)(8) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, conviction of a felony. [7] A.A.C. R2-19-119 provides as follows: A. Standard of proof. Unless otherwise provided by law, the standard of proof is a preponderance of the 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; and 3. The proponent of a motion shall establish the grounds to support the motion.

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