ALJDEC decisions subject to certification as final

2014A-1580-ROC · Registrar of Contractors · 2014-09-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 15, 2014, at 8:00 a.m. APPEARANCES: Robert Mitchell Calderon dba R M C Painting appeared on his own behalf. The Arizona Registrar of Contractors was represented by Assistant Attorney General, Seth T. Hargraves, Esq. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________

FINDINGS OF FACT Background and Procedure Robert Mitchell Calderon is listed as the Qualifying Party/Owner for R M C Painting pending License No. K-34.275108-D (hereinafter “RMC” or “Applicant”). RMC filed with the Registrar an application to renew a previously issued Arizona license that had expired.[1] On or about May 27, 2014, the Registrar’s Chief of Licensing sent a letter to RMC indicating that the Registrar was denying its license renewal application.[2] The letter provided, in relevant part, as follows: You are hereby notified pursuant to A.R.S. § 32-1125 that your license renewal application is denied. We find that the applicant does not qualify for qualify for continued licensure based on the following:

1. [Robert] Mitchell Calderon has failed to establish good character and reputation in contravention of A.R.S. §§ 33-1122.D. 2. [Robert] Mitchell Calderon was convicted of a felony in contravention of A.R.S. § 32-1154.A.8.

The following information substantiates the above grounds for recommended denial:

A.R.S. § 32-1154.A.8 provides that the holder of a license or any persons listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: “8. Conviction of a felony.” (Emphasis Added)

On or about October 9, 2013, Robert Mitchell Calderon, while he was a licensed contractor in good standing with the State of Arizona, was convicted of Annoying or Molesting a child under 18 years of age in California, a felony in Case No. CASOR40002-1, in San Bernardino County Superior Court. As a result these convictions, Calderon is required to register in the state of California as a Sex Offender.

Therefore, the Registrar finds that Robert Mitchell Calderon has violated the provisions of A.R.S. §§ 32-1154.A.8 and 13 (namely) § 32-1122.D.

On or about April 22, 2014, RMC requested a hearing on the Registrar’s denial. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. An evidentiary hearing was held on September 16, 2014. Robert Mitchell Calderon (hereinafter “Mr. Calderon”) and his wife, Gina M. Calderon, testified on RMC’s behalf. Mr. Calderon presented three exhibits, including numerous letters of recommendation. The Registrar presented the testimony of Lawrence R. Mathews, Chief of Licensing, and five exhibits. Hearing Evidence At the onset of the scheduled hearing, the Registrar dismissed the alleged violation of A.R.S. § 32-1154(A)(8). The Registrar acknowledged that Mr. Calderon’s violation of Cal. Pen. Code § 647.6 was a misdemeanor rather than a felony. The Registrar submitted evidence to establish that on or about October 9, 1995, Mr. Calderon was convicted of violating Cal. Pen. Code § 647.6, Annoying or Molesting a child under 18 years of age in the State of California, a misdemeanor, in Case No. CASOR40002-1 in San Bernardino County Superior Court.[3] Mr. Calderon is required to registrar as a sex offender in the State of California as a result of his conviction of violating Cal. Pen. Code § 647.6, Annoying or Molesting a child under 18 years of age. Mr. Calderon has been a registered sex offender in the State of California since his conviction in 1995. The Registrar stated that the denial of RMC’s license renewal application was based solely upon the fact that Robert Mitchell Calderon has failed to establish good character and reputation in contravention of A.R.S. § 33- 1122(D). On or about September 15, 2011, RMC filed a license application with the Registrar. Question 10(c) on the Application for Contractor’s License form provides as follows: Has any person listed in question 7 been convicted of a misdemeanor? If yes, what charge, who, where, what court and when?[4]

Mr. Calderon was listed in question 7 as being the qualifying party and owner of RMC.[5] Mr. Calderon answered no on Question 10(c). Mr. Calderon failed to disclose that he had been a registered sex offender in the State of California since his misdemeanor conviction for violating Cal. Pen. Code § 647.6, Annoying or Molesting a child under 18 years of age.[6] The letters of recommendation for Mr. Calderon included letters of recommendation from the Chief of the Fort Mohave Tribal Police and ex- deputy sheriff Carl Russell. HEARING TESTIMONY Testimony of Robert Mitchell Calderon Mr. Calderon testified that he has been in the contracting business since 1974. Mr. Calderon stated that he had an exemplary record as a licensed contractor with the Registrar of Contractors. Mr. Calderon acknowledged that he was convicted of violating Cal. Pen. Code § 647.6, Annoying or Molesting a child under 18 years of age in the State of California, a misdemeanor, in Case No. CASOR40002-1 in San Bernardino County Superior Court. Mr. Calderon testified that the case was twenty years old and that he did not remember exactly what happened. Mr. Calderon stated that the alleged victim was pressured into telling the police that he had touched her shoulder. Mr. Calderon testified that he was jailed and then went to court. Mr. Calderon testified that he did not know exactly what happened when he appeared in court. Mr. Calderon stated that he was required to register as a sex offender by the local sheriff’s office, not the Superior Court. Mr. Calderon testified that “there was no case on this.” Mr. Calderon testified that he was convicted of a misdemeanor, not a felony. Mr. Calderon stated that he was not going to register as a sex offender this year. Mr. Calderon testified that his attorney was trying to get the matter dismissed. Mr. Calderon acknowledged that he had been listed as a sex offender in the State of California since “95.” Mr. Calderon testified that he also had misdemeanor convictions for being drunk in public and a “prostitution” conviction. Mr. Calderon stated that his Arizona contractor’s license had expired, so RMC filed a license application with the Registrar on September 15, 2012. Mr. Calderon acknowledged that he was the only individual named in the 2011 License Application for RMC. Mr. Calderon acknowledged that he failed to answer Question 10(C) correctly on the 2011 License Application for RMC and that the 2011 License Application for RMC was not correct. Testimony of Lawrence R. Mathews Lawrence R. Mathews (hereinafter “Mr. Mathews”) testified that he is the Chief of the Licensing Department for the Registrar. Mr. Mathews stated that the Licensing Department processes new license applications and license renewal applications for the Registrar. Mr. Mathew testified that RMC’s application for renewal of licensure was reviewed by the License Department. Mr. Mathew stated that Mr. Calderon was listed as owner and qualifying party on the license renewal application. Mr. Mathew testified that on September 25, 2013, RMC submitted an on-line License Renewal Application for RMC. Mr. Mathews testified that the License Renewal Application could not be accepted by the Registrar because the License Renewal Application indicated that RMC’s qualifying party or a person named on the license had been convicted of a felony that had not been previously disclosed to the Registrar. Mr. Mathews stated that RMC then filed a second on-line License Renewal Application a short period later, indicating that the there had been no felony conviction. The second License Renewal Application was then accepted. Mr. Mathews testified that on or about September 27, 2013, the Register issued a letter to RMC requiring RMC’s qualifying party to submit to a Criminal Background Check.[7] Mr. Mathews stated that when the Criminal Background Check was performed, the Registrar discovered that Mr. Calderon was a registered sex offender in the State of California. Mr. Mathews testified that initially, the Registrar believed that Mr. Calderon’s conviction for violating Cal. Pen. Code § 647.6, Annoying or Molesting a child under 18 years of age was a felony conviction that had not been disclosed to the Registrar. Mr. Mathews acknowledged that Mr. Calderon’s conviction for violating Cal. Pen. Code § 647.6, Annoying or Molesting a child under 18 years of age was a misdemeanor conviction, rather than a felony conviction. Mr. Mathews stated that Mr. Calderon is currently a registered sex offender in the State of California due to the misdemeanor conviction of Cal. Pen. Code § 647.6, Annoying or Molesting a child under 18 years of age. Mr. Mathews testified that Mr. Calderon’s current status as a registered sex offender in the State of California makes the continued licensure of RMC a threat to the health, safety and welfare of the public in Arizona. Mr. Mathew opined that Mr. Calderon had failed to establish good character and reputation as required by A.R.S. § 33-1122(D). Mr. Mathew’s testimony is found to be credible. Testimony of Gina Marie Calderon Gina Marie Calderon (hereinafter “Ms. Calderon”) testified she was tired and inpatient when she made a mistake on the License Renewal Application. Ms. Calderon stated that Mr. Calderon was a good man and that she had told him for years that they needed to change his status as a registered sex offender in the State of California. Ms Calderon testified that Mr. Calderon was a good husband, a good father, and well-regarded in his community. Ms. Calderon stated that Mr. Calderon was very active in the community and that he gave freely of his time to help people. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[8] 2. RMC bears the burden of proof to establish that it meets statutory qualifications for a contractor’s license by a preponderance of the evidence.[9] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[10] 3. On or about September 15, 2011, RMC filed a license application with the Registrar. Mr. Calderon failed to disclose that he had been a registered sex offender in the State of California since his misdemeanor conviction for violating Cal. Pen. Code § 647.6, Annoying or Molesting a child under 18 years of age in 1995. Mr. Calderon also failed to disclose two other misdemeanor convictions. This Tribunal concludes that Applicant’s failure is a misrepresentation of a material fact in violation of A.R.S. § 32-1154(A)(5).[11] 4. A.R.S. §32-1122(D) provides in pertinent part that to obtain a contractor’s 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. 5. The Registrar’s concern in this case is legitimate and well-founded. A person who is required to register as a sex offender must be given close scrutiny and careful consideration. 6. 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.

7. Once good character is shown to be 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 of 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. 8. The vigilance and concern of the Registrar is essential and legitimate in light of the grievous nature of Mr. Calderon’s conviction for violating Cal. Pen. Code § 647.6, Annoying or Molesting a child under years of age in the State of California, a misdemeanor, in Case No. CASOR40002-1 in San Bernardino County Superior Court. This conviction has required Mr. Calderon to register as a sex offender in the State of California since 1995. 9. A contractor’s license is a privilege, not a right. “[T]he Registrar is charged with the overall responsibility of protecting the welfare of the public dealing with persons engaged in the building contracting vocations and afford that public protection against incompetent, inexperienced, unlawful and fraudulent acts of building contractors.”[12] On this record, RMC did not establish that it is eligible for the Registrar to grant it a contractor’s license without exposing the public to an unreasonable risk. RECOMMENDED ORDER Based on the foregoing, it is recommended that the Registrar affirm the decision to deny RMC’s License Renewal Application for Pending License No. K-34.275108-D. 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 five days from the date of that certification. Done this day, September 30, 2014.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit Nos. 2 (RMC painting’s Application for K34 Dual Painting License). [2] See Exhibit 1 (3/27/14 Notice of Application Denial Letter). [3] See Exhibit Nos. 4 and 5 (Registered Sex Offender Profile and printout of Cal. Pen. Code § 647.6). [4] See Exhibit No. 2 (9/15/11 License Application for RMC). [5] See Exhibit No. 2 (9/15/11 License Application for RMC). [6] See Exhibit No. 2 (9/15/11 License Application for RMC). [7] See Exhibit 3 (9/27/13 Letter). [8] See A.R.S. § 32-1122. [9] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [10] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [11] A.R.S. § 32-1154(A)(5) provides as follows:

A. The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: Misrepresentation of a material fact by the applicant in obtaining a license

[12] Burrows v. Taylor, 129 Ariz. 212, 214, 630 P.2d 35, 37 (Ct. App. 1981); see also Laws 1985, Ch. 334, § 1 (“The goals and objectives of the registrar of contractors are to protect the public health, safety and welfare by licensing, bonding and regulating contractors engaged in residential construction . . . .”).

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