PDF copy: ALJDEC decisions subject to certification as final

2014A-2390-ROC · Registrar of Contractors · 2015-01-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE APPLICATION No. 2014A-2390-ROC OF: ADMINISTRATIVE Brian Jeffrey Evans dba LAW JUDGE DECISION B E C Electrical Contracting Company

PENDING LICENSE NO: C-11.113555-R

HEARING: September 19, 2014, at 8:00 a.m. The record was held open until October 3, 2014, to allow the parties time to file legal memoranda. APPEARANCES: Brian Jeffrey Evans dba B E C Electrical Contracting Company (hereinafter “Mr. Evans” or “Applicant”) was represented by his attorney, Fidelis V. Garcia, Esq., Fidelis V. Garcia Law Office. The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General Seth T. Hargraves, Esq. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ FINDINGS OF FACT BACKGROUND AND PROCEDURE 1. Mr. Evans is listed as the Qualifying Party/Owner for B E C Electrical Contracting Company, pending License Renewal Application No. 113555. Mr. Evans filed with the Registrar an application to renew a previously issued Arizona license that had expired.1 2. On or about May 27, 2014, the Registrar’s Chief of Licensing sent a letter to Mr. Evans indicating that the Registrar was denying his 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: See Exhibit Nos. 3 (5/23/12 License Renewal Application). See Exhibit 1 (3/27/14 Notice of Application Denial Letter).

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826 1. Brian Jeffrey Evans has failed to establish good character and reputation in contravention of A.R.S. §§ 33-1122.D. 2. Brian Jeffrey Evans 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 May 22, 2012, Brian Jeffrey Evans, while he was a licensed contractor in good standing with the State of Arizona was convicted of the following in Case No. CR2011-[number redacted], in Maricopa County Superior Court:

Count 1 As Amended: Attempted Stalking, a Class four (4) felony and a Domestic Violence Offense.

The Court suspended imposition of the sentence and placed Mr. Evans on probation for ten (10) years, to begin July 2, 2012. Mr. Evans was to be incarcerated in the county jail for 128 days, beginning July 2, 2012, with credit for 128 days served. On or about May [22], 2012, Brian Jeffrey Evans, while he was a licensed contractor in good standing in the State of Arizona was convicted of the following in Case No. CR2012-104104 in Maricopa County Superior Court:

Count 1: Aggravated Harassment, a Class six (6) designated felony and a Domestic Violence Offense.

The Court suspended imposition of the sentence and placed Mr. Evans on probation for three (3) years, to begin July 2, 2012.

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

3. On or about June 13, 2014, Mr. Evans requested a hearing on the Registrar’s denial. 4. The Registrar referred the matter to the Office of Administrative Hearings, an

independent state agency, for an evidentiary hearing.

5. An evidentiary hearing was held on September 19, 2014. Mr. Evans testified on

his own behalf and presented the testimony of Lawrence R. Mathews, Adam Dean

Tripp, Randy Johnson, and Thomas Marskie. Mr. Evans also presented exhibits

marked A through H, including numerous letters of recommendation in Exhibit H marked

R-1 through R-10. The Registrar presented four exhibits.

HEARING EVIDENCE

HEARING TESTIMONY

Testimony of Randall L. Johnson 6. Randall L. Johnson (hereinafter “Mr. Johnson”) testified that he has known Mr. Evans for over sixteen years. Mr. Johnson stated that Mr. Evans has a reputation for honesty and hard work. Mr. Johnson testified that Mr. Evans has a good reputation in the communities that he has worked in. Mr. Johnson stated that Mr. Evans has a reputation for doing charitable work. Mr. Johnson testified that Mr. Evans had always shown that he cared for the surrounding community. Testimony of Adam Dean Tripp 7. Adam Dean Tripp (hereinafter “Mr. Tripp”) testified that he is the facilities maintenance supervisor for Pinal County. Mr. Tripp stated that he is Mr. Evan’s supervisor. Mr. Tripp testified that Mr. Evans is his “go to guy” for electrical work. 8. Mr. Tripp testified that he was present when Mr. Evans was hired for his position as a county maintenance worker. Mr. Tripp stated that the county was aware that Mr. Tripp had been convicted of felonies when the county decided to hire Mr. Evans. Mr. Tripp testified that Mr. Evans has been an excellent employee. Testimony of Thomas J. Marskie 9. Thomas J. Marskie (hereinafter “Mr. Marskie”) testified that he has known Mr. Evans for twelve to fourteen years. Mr. Marskie stated that Mr. Evans has always been very dependable and that he has a reputation for being a good contractor. Testimony of Lawrence R. Mathews

10. 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.

11. Mr. Mathew testified that Mr. Evans’ application for renewal of his contractor’s

license was reviewed by the License Department. Mr. Mathew stated that Mr. Evans

was listed as owner and qualifying party on the license renewal application. Mr.

Mathews testified that the License Renewal Application could not be accepted by the

Registrar because Mr. Evans failed to include his Arizona tax identification number per

A.R.S. § 32-1121(B)(h).3

12. Mr. Mathews testified that Mr. Evans then refilled his License Renewal

Application a short time later. Mr. Mathews stated that Mr. Evans acknowledged that he

had a felony conviction in his Criminal Records Disclosure Form. Mr. Mathews testified that Mr. Evans disclosed that he had been convicted of felonies because he “gave a card, roses and love vase.” Mr. Mathews stated that when a Criminal Background Check was performed, the Registrar discovered that Mr. Evans had been convicted of two felonies in the State of Arizona.4 13. Mr. Mathews testified that on or about May 22, 2012, Mr. Evans, while he was a licensed contractor in good standing with the State of Arizona, was convicted of Attempted Stalking, a Class four (4) felony and a Domestic Violence Offense, in Case No. CR2011-[number redacted], in Maricopa County Superior Court. 14. Mr. Mathews testified that on or about May 22, 2012, Mr. Evans, while he was a licensed contractor in good standing with the State of Arizona, was convicted of Aggravated Harassment, a Class six (6) designated felony and a Domestic Violence Offense in Case No. CR2012-104104 in Maricopa County Superior Court.

See Exhibit 3 (Renewal Return Notice). 4 See Exhibit 2 (documentation from Maricopa County Superior Court). 15. Mr. Mathews testified that Mr. Evans is currently on probation for both felony convictions. Mr. Mathews stated that Mr. Evans will be on probation until approximately July 2, 2022.

16. Mr. Mathews testified that Mr. Evans’ status as a convicted felon in the State of

Arizona makes the continued licensure of Mr. Evans a threat to the health, safety, and

welfare of the public in Arizona. Mr. Mathews opined that Mr. Evans had failed to

establish good character and reputation as required by A.R.S. § 32-1122(D).

17. Mr. Mathew’s testimony is found to be credible.

Testimony of Brian Jeffrey Evans

18. Mr. Evans acknowledged that on or about May 22, 2012, he had been convicted

of Attempted Stalking, a Class four (4) felony and a Domestic Violence Offense, in

Case No. CR2011-[number redacted], in Maricopa County Superior Court.

19. Mr. Evans acknowledged that on or about May 22, 2012, he had been convicted

of Aggravated Harassment, a Class six (6) designated felony and a Domestic Violence Offense in Case No. CR2012-104104 in Maricopa County Superior Court. 20. Mr. Evans testified that he had never had a problem as a licensed contractor. Mr. Evans stated that he had always worked with the community and allowed lower income customers to pay their bills off in increments. Mr. Evans testified that he was a productive member of the community and that he deserved to be a licensed contractor. 21. Mr. Evans testified that he was confused by the May 29, 2014 Notice of Application Denial because the conclusion of the letter refers to the Registrar’s decision to deny the license application of 5 Star All Scape Designs LLC rather than Mr. Evans. Mr. Evans stated that he did not have proper notice of what evidence to present at the hearing. Mr. Evans asserted that the error in the Notice of Application Denial was a denial of due process. 22. Mr. Evans acknowledged that he received the Notice of Application Denial letter and that he knew that the Registrar had denied his license application. 23. Mr. Evans acknowledged that on or about June 13, 2014, he filed an appeal of the Registrar’s denial of license application. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.5 2. Mr. Evans bears the burden of proof to establish that he meets statutory qualifications for a contractor’s license by a preponderance of the evidence.6 “A

preponderance of the evidence is such proof as convinces the trier of fact that the

contention is more probably true than not.”7

3. The May 29, 2014 Notice of Application Denial letter does contain a

scrivener’s error. The Notice of Application Denial letter gives specific grounds as to

why the Registrar was denying Mr. Evans’ license application. Mr. Evans responded to

the Notice of Application Denial Letter by filing an appeal with the Registrar. This

Tribunal concludes that Mr. Evans knew that the Notice of Application Denial letter

applied to him.

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 that 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 has been convicted of two (2) felony convictions for Domestic Violence Offenses must be given close scrutiny and careful consideration. 6. Once good character is shown to be absent, it is not automatically regained by the mere passage of time. In this case, very little time has elapsed since Mr. Evans was convicted of two felonies for domestic violence on or about May 22, 2012. 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 his burden. A.R.S. § 32- 1122(D) is permissive. 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 See A.R.S. § 32-1122. 6 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). 7 MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). 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 a clearly defined standard, good character or the lack

thereof must be decided on a case-by-case basis.

7. The vigilance and concern of the Registrar is essential and legitimate in light

of the grievous nature of Mr. Evans’ May 22, 2014 felony convictions for (1) Aggravated

Harassment, a Class six (6) designated felony and a Domestic Violence Offense in

Case No. CR2012-104104 in Maricopa County Superior Court and (2) Aggravated

Harassment, a Class six (6) designated felony and a Domestic Violence Offense in

Case No. CR2012-104104 in Maricopa County Superior Court.

8. 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 affording that public

protection against incompetent, inexperienced, unlawful and fraudulent acts of building

contractors.”8 On this record, Mr. Evans did not establish that he is eligible for the

Registrar to grant him 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 Mr. Evans’ License Renewal Application for Pending License No. C-11.113555- R. 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, October 14, 2014. /s/ M. Douglas Administrative Law Judge

8 Burrows v. Taylor, 129 Ariz. 212, 214, 630 P.2d 35, 37 (Ct. App. 1981); see also Laws 1985, Ch. 334, § (“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 . . . .”). Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors