ALJDEC decisions subject to certification as final

2015A-1456-ROC · Registrar of Contractors · 2015-06-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 8, 2015, at 1:00 p.m. APPEARANCES: Diamond Designs, LLC (“Diamond Designs”) appeared through Paul Anthony Foote, its qualifying party and managing member; the Arizona Registrar of Contractors (“the Registrar”) was represented by Seth T. Hargraves, Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On or about November 4, 2014, Paul Anthony Foote on behalf of Diamond Designs filed an Application for Contractor’s License with the Registrar. Mr. Foote was listed on the application as Diamond Designs’ qualifying party and member.[1] 2. Mr. Foote answered “Yes” to the question 26 on the application, “Have you ever been convicted of a felony or a misdemeanor, or currently have a felony charge pending.”[2] Mr. Foote disclosed the following three convictions: (1) A misdemeanor conviction on January 18, 2005, for discharging a firearm within city limits in Pinal County; (2) A felony conviction on December 7, 2006, for criminal trespass in Maricopa County; and (3) A felony conviction on November 12, 2009, for misconduct involving a weapon in Maricopa County.[3] 3. On or about February 27, 2015, the Registrar issued a Notice of License Denial to Diamond Designs under A.R.S. §§ 32-1122(D) and 32- 1154(A)(7) based on Mr. Foote’s two disclosed felony convictions and the disclosed January 18, 2005 conviction, which according to the denial was for a Class 6 felony.[4] 4. Mr. Foote requested a hearing on the Registrar’s denial of Diamond Designs’ license application. 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 6. An hearing was held on June 8, 2015. Mr. Foote submitted one exhibit and testified on Diamond Designs’ behalf. The Registrar submitted five exhibits and presented the testimony of Paul Terek, its Assistant Chief of Licensing. Additional Hearing Evidence Mr. Foote’s Criminal History The January 2005 Conviction 7. Mr. Foote was born in sometime in 1984.[5] 8. On or about November 10, 2004, when he was approximately twenty years old, Mr. Foote was indicted in Pinal County Superior Court Case No. CR200401608 for discharging a deadly weapon, a Class 6 undesignated felony, based on an event that occurred on or about November 6, 2004.[6] 9. On or about December 20, 2005, Mr. Foote pled guilty to discharging a firearm within the limits of the City of Apache Junction, a Class undesignated offense.[7] 10. On or about January 20, 2005, Mr. Foote was sentenced pursuant to his guilty plea in Case No. CR200401608 to discharging a firearm, which the court called a Class 6 undesignated offense, and sentenced to three years of supervised probation.[8] / / / / The December 2006 Conviction 11. On or about April 26, 2006, while Mr. Foote was still on probation for Pinal County Superior Court Case No. CR200406808, he was charged by direct complaint in Maricopa County Superior Court Case No. CR2006-070733 with having knowingly entered or remained unlawfully in a woman’s residential structure on December 31, 2005, in violation of various criminal statutes.[9] On or about May 31, 2006, Mr. Foote was charged by information with the same offense.[10] 12. The presentence report in Case No. CR2006-080733 stated in relevant part as follows: After considering a terminal disposition and weighing the scarce resources available through the Adult Probation Department, a term of probation is recommended . . . .

These factors were considered in making a sentencing recommendation:

The defendant is before the Court for his second felony conviction. Mr. Foote is currently on supervised probation . . . for criminal negligence, discharge of a firearm. Both the current offense and his past conviction were results of [Mr. Foote] drinking alcohol and not controlling his anger. This officer has supervised Mr. Foote for Pinal County since January of 2005. Throughout that time, the defendant displayed a negative attitude in regard to probation, authority figures and the current offense.

It is apparent through committing the new offense while being supervised on probation that he does not fully understand the seriousness of his actions and the possible consequences. . . .[11]

13. On or about October 12, 2006, Mr. Foote pled guilty to the crime of criminal trespass, a Class 6 designated felony, in Case No. CR2006- 080733.[12] 14. On or about December 7, 2006, the court convicted Mr. Foote of criminal trespass, a Class 6 felony, pursuant to his plea and sentenced him to three years’ probation, 100 hours of approved community work, and to be incarcerated for one month in the county jail, which could be further deferred or deleted, in Case No. CR2006-080733.[13] The November 2009 Conviction 15. On or about May 1, 2008, Mr. Foote was indicted in Maricopa County Superior Court Case No. CR2008-030928 for two counts: (1) Using a gun to place another in reasonable apprehension of imminent physical injury, in violation of various criminal statutes, based on an incident that occurred on or about June 13, 2007; and (2) Knowingly possessing a gun while being a prohibited possessor, in violation of various criminal statutes.[14] 16. The presentence report in Case No. CR2008-030928 noted that probation was not an available sentence, in relevant part as follows: [Mr. Foote] is twenty-five years old and the present offense represents his third known felony conviction. . . . [Mr. Foote] was granted probation in both matters and successfully completed both grants.

The present offense involved [Mr. Foote] possessing a weapon while being a prohibited possessor. . . . [P]robation is not available because the State intends to allege [Mr. Foote’s] two prior felony convictions. As a result it will be recommended [Mr. Foote] be sentenced to the Arizona Department of Corrections for a term less than the presumptive. This appears warranted based upon the nature of the present offense, his criminal history and the fact nobody was injured or threatened while he possessed the weapon.[15]

17. On or about December 7, 2008, Mr. Foote was convicted after a trial by jury in Case No. CR2008-030928 of trespass, a Class 6 felony, and knowingly possessing a gun while being a prohibited possessor, a Class 4 felony. On or about November 12, 2009, the court entered the jury’s verdict against Mr. Foote and sentenced him to 4.5 years of imprisonment by the Arizona Department of Corrections, with credit for 118 days served.[16] Mr. Foote’s Evidence of Rehabilitation 18. Mr. Foote was released from prison on March 11, 2013, based on his good behavior and the absence of any discipline while he was in prison.[17] Mr. Foote testified that he was on parole for a short time, approximately six months, after his release. Mr. Foote is no longer on supervised release. 19. While Mr. Foote was in prison, he worked as a groundskeeper, porter, and tutor, learned basic electronics, and took classes at Cochise County Community College to obtain certificates in basic and advanced custodial services and as a basic computer technician, basic maintenance technician, air conditioning maintenance technician, and basic electronics technician. Mr. Foote testified that prison was a difficult environment that caused him to reexamine his priorities and lifestyle. 20. Mr. Foote testified that since he was released from prison, he cared for his grandmother until she passed away in August 2014. He is currently living with his grandfather and his ten-year-old son. Mr. Foote goes to church on Sunday and works full-time for a general contractor. 21. Mr. Foote is working on getting his civil rights restored. Mr. Foote testified that although he knows that it is early to apply for a license, he feels that he is ready to take on the challenges of being a contractor and running his own business. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[18] 2. Diamond Design bears the burden of proof to establish that it meets statutory qualifications for a contractor’s license by a preponderance of the evidence.[19] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[20] 3. A.R.S. § 32-1122(D) provides, in relevant part, as follows: To obtain or renew a license under this chapter, each person shall be of good character and reputation. Lack of good character and reputation may be established by showing that a person has engaged in contracting without a license or committed any act that, if committed or done by any licensed contractor, would be grounds for suspension or revocation of a contractor's license . . . .

A.R.S. § 32-1154(A)(7) includes among the grounds furnishing cause for the Registrar to revoke or suspend a contractor’s license “[c]onviction of a felony.” 4. Mr. Foote acknowledged that on or about January 20, 2005, pursuant to his guilty plea, he was convicted of discharging a deadly weapon in the limits of the City of Apache Junction, a Class 6 undesignated offense. The Arizona Supreme Court in a regulatory proceeding has noted that “an open-ended conviction is deemed a felony conviction for criminal sentencing considerations until the court designates the offense a misdemeanor.”[21] Mr. Foote did not present any evidence that the offense has been redesignated as a misdemeanor. Therefore, the January 20, 2005 conviction was for a felony. 5. Mr. Foote also acknowledged that on or about December 7, 2006, he was convicted pursuant to his guilty plea of criminal trespass, a Class 6 designated felony, and that on or about December 7, 2008, he was convicted a trespass, a Class 6 felony, and knowingly possessing a gun while being a prohibited possessor, a Class 4 felony. 6. Cause therefore exists under A.R.S. §§ 32-1122(D) and 32-1154(A)(7) for the Registrar to deny Diamond Designs’ license application based on Mr. Foote’s poor character and reputation as a three-time convicted felon. 7. A contractor’s license is a privilege, not a right. Even though cause may exist to deny a license application, an applicant may establish that he is rehabilitated, that he has reestablished his good character, and that he no longer poses a threat to the public. Once good character is shown to be absent, however, it is not automatically regained by the mere passage of time and some positive and affirmative activities are required for a person to regain what was lost. The issue of what constitutes good character or a lack thereof is nebulous at best. Former United States Supreme Court Justice Frankfurter noted: 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 . . . , a judgment of which it may be said as it was of "many honest and sensible judgments" in a different context 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." . . . [22]

Mr. Foote credibly testified that he has changed his life and wants to obtain a contractor’s license to better support his family. Mr. Foote has been convicted of three felonies and that he has been out of prison for slightly more than two years. The time between when he committed his first criminal offense and when he was released from prison was more than six years. Although Mr. Foote certainly is more mature, no one testified on his behalf subject to cross-examination and he did not testify about the specific changes that he has made in his life that make future criminal conduct unlikely. 8. “[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 the public protection against incompetent, inexperienced, unlawful and fraudulent acts of building contractors.”[23] Grounds exist under A.R.S. §§ 32-1122(D) and 32-1154(A)(7) to deny Diamond Designs’ Pending License No. 295517. Although Mr. Foote credibly testified that he has made substantial progress in his rehabilitation, at this time, he did not establish that he is sufficiently rehabilitated to be granted a license or that the Registrar abused its discretion when it denied Diamond Designs’ application. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s order, the Registrar affirm the decision to deny Diamond Designs’ application for a contractor’s license. 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, June 23, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See the Registrar’s Exhibit 2. [2] See id. at 2. [3] See id. at 3. [4] See the Registrar’s Exhibit 1. [5] On November 29, 2006, he was 22 years old, see the Registrar’s Exhibit at 17, and on November 29, 2009, he was 25 years old, see the Registrar’s Exhibit 5 at 5. [6] See the Registrar Exhibit 3 at 2. [7] See id. at 3-4. [8] See id. at 9-11. [9] See the Registrar’s Exhibit 4 at 3. [10] See id. at 2. [11] Id. at 11. [12] See id. at 8. [13] See id. at 21-22. [14] See the Registrar’s Exhibit 5 at 2-3. [15] Id. at 6. [16] See id. at 24-27. [17] See Mr. Foote’s Exhibit A. [18] See A.R.S. § 32-1122. [19] 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). [20] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [21] In the Matter of Beren, 178 Ariz. 400, 402, 874 P.2d 320, 322 (1994).

[22] Schware v. Board of Bar Examiners of the State of New Mexico, 353 U.S. 232, 248, 77 S. Ct. 752, 761 (1957) (citation omitted; concurring opinion). [23] 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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