ALJDEC decisions subject to certification as final

2016A-1521-ROC · Registrar of Contractors · 2016-09-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors

-v-

J S Professional Plumbing LLC

DBA: J S Professional Plumbing

APPLICANT

Pending License No. 302202

No. 2016A-1521-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 14, 2016, at 1:00 p.m.

APPEARANCES: J S Professional Plumbing LLC DBA: J S Professional Plumbing (“Applicant”) appeared through Jayson Schoen (“Mr. Schoen”), its managing member; the Arizona Registrar of Contractors (“the Registrar”) was represented by Thomas Raine, Esq., Assistant Attorney General.

ADMINISTRATIVE LAW JUDGE: Diane Mihalsky

_____________________________________________________________________

FINDINGS OF FACT

Background

On or about October 14, 2015, the Registrar received an application for a CR-37 dual plumbing contractor’s license from Applicant. Mr. Schoen was listed as Applicant’s qualifying party and member on the license application. Mr. Schoen disclosed that he had been convicted of numerous felonies, beginning with a conviction for possession of drug paraphernalia in 1991. As part of the application, Mr. Schoen filed an Affidavit of Self Employment Exemption under the Workers’ Compensation Act, indicating that he was self-employed and that he did not currently and would not in the future regularly employ other workers in his business.

On April 13, 2016, the Registrar issued a Notice of License Denial under A.R.S. §§ 32-1122(D) and 32-1154(A)(7), based on Mr. Schoen’s conviction of seven felonies between September 4, 1991, and June 22, 2009, that resulted from offenses committed between October 13, 1990, and September 9, 2008.

Mr. Schoen timely requested a hearing on the Registrar’s denial of Applicant’s license application and submitted letters of reference from ten persons, attesting to Mr. Schoen’s rehabilitation and good character. The Registrar referred the matter to the Office of Administrative Hearings, and independent state agency, for an evidentiary hearing.

A hearing was held on September 14, 2016. Applicant presented the testimony of Mr. Schoen, his wife, Amy Schoen (“Mrs. Schoen”), as well as twelve character witnesses. Only one of the character witnesses who testified also had previously submitted a letter of reference to the Registrar.

The Registrar submitted nine exhibits and presented the testimony of Bonny Allan (“Ms. Allan”), one of the Registrar’s staff attorneys, who was involved in the investigation into Applicant’s qualifications for licensure and the decision to deny the license application. Ms. Allan testified that the Registrar’s License Committee had considered the ten letters that Applicant had submitted to show Mr. Schoen’s character.

Additional Hearing Evidence

Mr. Schoen’s Criminal History

On September 4, 1991, Mr. Schoen was convicted in Maricopa County Superior Court Case No. CR 1991-092015 of Possession of Drug Paraphernalia, a Class 6 Felony based on acts committed on October 13, 1990. The Court committed Mr. Schoen to the Arizona Department of Corrections to serve a 1.5 year term of incarceration.

According to the criminal complaint on Case No. CR 1991-092015, Mr. Schoen possessed paraphernalia used to possess or use marijuana and methamphetamine. According to the presentence report, Mesa police arrested Mr. Schoen after his girlfriend’s daughter reported finding a bag of marijuana under the couch in the living room and cocaine and a razor on a mirror under the bathroom sink, which belonged to her mother and Mr. Schoen.

On September 4, 1991, the court suspended imposition of the sentence of incarceration in Case No. CR 1991-092015 and placed Mr. Schoen on probation for three years.

On January 8, 1992, Mr. Schoen committed the crime of possession of marijuana. On May 20, 1992, Mr. Schoen pled guilty to the charge of possession of marijuana in Maricopa County Superior Court Case No. CR 1992-091060.

On June 18, 1992, the court revoked the probation previously imposed in Case No. CR 1991-092015 for because Mr. Schoen had violated the terms of his probation and sentenced him to serve 1.5 years in prison, with credit for 162 days served.

On July 28, 1994, Mr. Schoen committed the crime of possession of a dangerous drug in Maricopa County Superior Court Case No. CR 1994-092530. On February 23, 1995, he was convicted of the crime pursuant to his guilty plea.

On March 6, 2002, Mr. Schoen was charged with the fraudulent use of a credit card, a Class 5 felony, and forgery, a class 4 felony, in East Mesa Justice Court Case No. CR 02-497-FE, based on his attempt to use his employer’s credit card to obtain twelve $100 gift cards from Home Depot over a six-month period.

Case No. CR 02-497-FE was transferred to Maricopa County Superior Court. On September 25, 2003, Mr. Schoen was convicted in Maricopa County Superior Court Case No. CR 2002-093468 pursuant to his guilty plea of forgery and sentenced to a 2.5 year term of imprisonment, with credit for 127 days.

On October 2, 2003, Mr. Schoen was sentenced in Maricopa County Superior Court Case No. CR 2003-013942 pursuant to his guilty plea of Possession of Chemicals and/or Equipment to Manufacture Dangerous Drugs and sentenced to a 3.5 year term of imprisonment, with credit for 134 days. According to the presentence investigation, the circumstances of Mr. Schoen’s arrest were as follows:

On May 15, 2003, detectives and a probation officer made contact with Jennifer Gooslin where she was believed be saying with her boyfriend, [Mr. Schoen]. It was determined that [Mr. Schoen], who was known to have two outstanding felony warrants, was [in] the residence in a locked bedroom. After some negotiation, [Mr. Schoen] gave up and was arrested. In his pocket was found $1,673.00. In the bedroom where [Mr. Schoen] and Ms. Gooslin were staying were found: a shopping list of chemicals; a notebook containing customer names, drugs amounts sold and dollar amounts collected and owed; vehicle titles; several packages of pseudoephedrine; two glass smoking pipes; over 300 plastic re-closeable bags; a Ruger semi-automatic pistol; a Walther semi-automatic pistol; a Colt pistol; and a scale. Inside a jacket (adult-sized) in a child’s bedroom was found a bag of marijuana and a bag (approximately half a pound) of methamphetamine. . . .

. . . .

[Mr. Schoen] reportedly last used marijuana four months ago, last used cocaine eighteen years ago, and last used methamphetamine four months ago. He does not consume alcohol. Although he was using methamphetamine every day, he does not believe he needs drug counseling.

[Mr. Schoen] committed this offense while on release for another felony offense. This offense represents his third felony conviction, not including the other pending case. [Mr. Schoen] does not appear to have been impacted by previous court actions nor does he appear interested in changing his behavior to become a law-abiding citizen or willing to address his substance abuse issues. Therefore, a prison term is believed necessary and appropriate.

On October 14, 2008, Mr. Schoen “aka Steven Lee Trantham” was charged in Maricopa County Superior Court Case No. CR 2008-163572-001 with knowingly controlling another’s kitchen appliances with a value of at least $4,000.00 but less than $25,000.00. The release questionnaire described the circumstances of the offense as follows:

On 09-06-08, between 1700 and 1800 hours, a burglary occurred at 3227 NW Sycamore Place in Chandler. In the burglary several items were stolen from the garage including kitchen appliances, furniture, and personal belongings of the victim. As the weeks [passed], the victim began searching Craigslist for property that may resemble hers. On 10-04-08, the victim identified several pieces of her property on Craigslist, which led her to an address in Mesa where she identified several pieces of her property. During the course of identifying her property, she asked the suspect for additional items, specifically kitchen appliances, to which she was directed to another address in Mesa, [Mr. Schoen’s], where she was able to identify more of her property including her kitchen appliances. . . . Based on the information obtained, a search warrant was drafted and served on 10-09-08.

[Mr. Schoen] was contacted at his residence during the search of the residence. The property identified and reported by the victim was also at the residence. Along with the stolen property, a baggie of crystal methamphetamine was found in [Mr. Schoen’s] nightstand inside his bedroom. The reported . . . property was seized and impounded into the Chandler police property room as evidence. . . .

On June 3, 2009, Mr. Schoen was convicted in Case No. CR 2008-163572 pursuant to his guilty plea of theft, a Class 3 felony. The prosecutor recommended that he be sentenced to 3.5 years in the Department of Corrections for the following reasons:

[Mr. Schoen] is 44 years old, and this is his 8th felony conviction. In addition, he was on felony release for Transportation/Possession of Dangerous Drugs for Sale, a class 2 felony out of Navajo County at the time of his arrest. That charge is still pending. [Mr. Schoen] should be incarcerated for 3.5 years in order to protect the community from a career criminal.

Mr. Schoen testified that he was most recently released from prison on February 16, 2011, more than five and one-half years before the hearing. Mr. Schoen testified that there still might be an outstanding balance of approximately $30,000.00 that he had been ordered to pay in restitution, but that he was trying to contact the court about the final balance and that the court was looking into it. Mr. Schoen testified that he was making payment on fines and restitution.

Mr. Schoen’s Evidence of Rehabilitation

Mr. Schoen testified that during his last few stints in prison, he had heavy circumstances in his life. His grandfather and grandmother passed away while he was in prison and when he got out, his mother died. Mr. Schoen testified that his sobriety date was October 8, 2008. During his last stint in prison, Mr. Schoen participated in drug treatment through Hazelton Design for Living. When he got out of prison, he attended Narcotics Anonymous (“NA”) at least three times a week. Presently, he attends NA about once a month and sponsors others. Mr. Schoen testified that he no longer does drugs and that he does not drink. Mr. Schoen testified that he took a drug test before the settlement conference and that the test results confirmed that he is clean.

Mr. Schoen testified that since he is no longer doing drugs, he works a lot. For three years after Mr. Schoen first got out of prison, he worked for Saguaro Plumbing doing commercial jobs. In 2014, after Saguaro Plumbing went out of business, he worked for Nash Mechanical as a journeyman plumber for two months. Mr. Schoen then started his own business performing service work for property management companies, doing both residential and commercial small jobs, such as rebuilding toilets and installing faucets and shower cartridges. Mr. Schoen testified that although most of his service work is through property management companies, he sometimes gets a call from a member of the public who has heard of him through word-of-mouth.

Mr. Schoen testified that he married his wife in 2012, and that he and his wife have purchased a house. At the time of the hearing, Mr. Schoen was 52 years old.

Mrs. Schoen testified that her husband has learned from his prior poor choices. He now has the support of many friends, business associates, and family to maintain him in his sobriety. Mrs. Schoen testified that Mr. Schoen has no disgruntled customers.

Marki Mitchell testified that she met Mr. Schoen when he sponsored her brother in NA. Ms. Mitchell testified that when the phone rang, she feared she would receive news of her brother’s death, but that Mr. Schoen has helped her brother to make changes. Ms. Mitchell testified that after she became friends with Mr. Schoen, he replaced her water heater and kitchen sink. She would trust him in her house, including around her medicine cabinet.

Mark Crawford is a construction superintendent for HRW Builders. Mr. Schoen has worked on eight of its buildings, with a total of 28 bathrooms and 668 sinks, as well as doing work at Mr. Crawford’s, his sister’s, and his son’s homes. Mr. Crawford testified that Mr. Schoen is a really good plumber who does his work in a timely manner. Mr. Crawford has not seen any evidence that Mr. Schoen does drugs. Mr. Schoen does not drink. Mr. Crawford testified that Mr. Schoen is trustworthy.

Byron Byrd testified that he has worked for Mr. Schoen for a year and has known Mr. Schoen for several years. Mr. Byrd testified that if a customer does not have enough money for a job, Mr. Schoen reduces the price, and that Mr. Schoen works very hard. Mr. Byrd testified that Mr. Schoen is a perfectionist and although Mr. Byrd is a good plumber, Mr. Schoen is a great plumber.

Wendell Sudduth is a retired general contractor. Mr. Sudduth testified that he has been to Mr. Schoen’s house and watched Mr. Schoen work on a friend’s house. Mr. Sudduth testified that Mr. Schoen is a hard worker.

Allen Sparling is Mr. Sudduth’s friend. He meet Mr. Schoen on a job when Mr. Sparling was working for Osborn Stucco three years ago. Mr. Sparing testified that Mr. Schoen is a hard worker and that he has referred Mr. Schoen to fifteen or twenty people. Mr. Sparling testified that Mr. Schoen is absolutely trustworthy.

Estelle Lieber is Mrs. Schoen’s mother. Mrs. Lieber testified that Mr. Schoen has a good moral character. Mrs. Lieber testified that when a hot water pipe broke in her kitchen, Mr. Schoen came over immediately and worked three hours so that she would have a kitchen in the morning. Mrs. Lieber testified that Mr. Schoen does not ask for money. He also performs all the repairs that her Home Owners’ Association requires. Mrs. Lieber testified that she knew Mr. Schoen slightly before he got out of prison and that he has turned his life around. She refers vulnerable friends to Mr. Schoen because she knows that he will do the right thing.

Lara Knipp owns HRW Builders and has dealt with Mr. Schoen extensively. Ms. Knipp testified that Mr. Schoen was one of Saguaro Plumbing’s best plumbers. Ms. Knipp testified that she has asked Mr. Schoen to get his own license because she struggles to find good tradesmen, especially plumbers.

Luc Marceau owns Rentals America. Mr. Schoen has performed approximately 230 plumbing jobs over the last year at Mr. Marceau’s rental properties. Mr. Marceau testified that all the jobs were residential and that no issues have arisen. He trusts Mr. Schoen. Mr. Marceau testified that he is quick to remove a tradesman from his approved list if the tradesman has poor interactions with tenants/owners or is dishonest.

Michael Crawford owns Peak Investment Properties, a property management company. Mr. Crawford testified that his father referred him to Mr. Schoen. Mr. Crawford testified that he has given 40 or 50 small jobs to Mr. Schoen and that he is happy with Mr. Schoen’s plumbing work and billing practices and that he receives positive feedback about Mr. Schoen. Mr. Crawford testified that Mr. Schoen has also work on Mr. Crawford’s and his mother-in-law’s houses.

Greg Raupp is a professor at ASU in chemical engineering. Dr. Raupp testified that he met Mr. Schoen six years ago through Dr. Raupp’s wife. Dr. Raupp testified that he is in the business of judging people and that Mr. Schoen wants to contribute to society and is a good citizen. Dr. Raupp testified that he engaged Mr. Schoen to perform plumbing at Dr. Raupp’s mid-century modern house in Scottsdale, which had a do-it-yourself prior owner whose work required correction. Mr. Schoen did a great job.

Liz Burgess has known Mr. Schoen all his life because she used to babysit for him. Ms. Burgess testified that Mr. Schoen has worked through hard times and that it would not be a mistake to grant him a license.

Esther Grabowsky testified that she met Mr. Schoen two years ago when she took over a property in Glendale that had substantial deferred maintenance, including cast iron pipes. Ms. Grabowsky testified that Mr. Schoen went above and beyond in performing repairs and was good with tenants. Ms. Grabowsky testified that she refer other property managers to Mr. Schoen.

Mr. Schoen had a list of seven or eight witnesses, whom he said were willing to testify telephonically. To avoid the presentation of cumulative evidence and to avoid wasting the tribunal’s time, Mr. Schoen did not call the witnesses.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

Applicant bears the burden of proof and must establish that it meets all statutory requirements for licensure by a preponderance of the evidence.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” A preponderance of the evidence is “evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

The Registrar denied Applicant’s application for a contractor’s license because Mr. Schoen had not demonstrated to the Registrar’s satisfaction that he was a person of good character under A.R.S. § 32-1122(D). A.R.S. § 32-1122(D) provides among the qualifications for a contractor’s license:

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 to suspend or revoke a contractor’s license the fact that a person who is listed on the license has been convicted of a felony.

Denial of a license based on past criminal history does not constitute additional punishment, even if the denial or revocation is based on the same misconduct that caused the license applicant to be punished by the criminal justice system. The licensing proceeding “‘is not a second criminal proceeding placing [the licensee] in double jeopardy . . . . Rather, the purpose is to maintain sound professional standards of conduct for the purpose of protecting the public and the standing of the . . . profession in the eyes of the public.’” “‘[T]he primary purpose of a disciplinary proceeding is the ascertainment of moral fitness and professional competency . . ., and a determination of whether it is necessary for the protection of the public interest that the [licensee] be disciplined . . . . These are public interests not addressed by the underlying criminal proceeding.’”

The legislature established the office of the Registrar to protect the public and to maintain high professional standards in the building profession. A person who has successfully completed his sentences may not be disqualified from employment by the state or any of its agencies, but such a person may be denied a certificate to engage in an occupation “by reason of the prior conviction of a felony or misdemeanor if the offense has a reasonable relationship to the functions of the employment or occupation for which the . . . certificate is sought.”

A contractor’s license is a privilege, not a right. The issue in this case is whether, on the date Mr. Schoen submitted Applicant’s application for licensure, he was a person of good character and reputation under A.R.S. § 32-1122(D). The Registrar may grant a license to an applicant who has established that he is a person of good character. 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." . . .

Once good character is shown to be absent, it is not automatically regained by the mere passage of time and positive and affirmative activities are required for a person to regain what was lost.

The time period for which a license applicant must establish rehabilitation is commensurate with the period of misconduct and the severity of the offenses. Mr. Schoen acknowledged that between October 13, 1990, and September 6, 2008, he committed at least seven felonies. Most of the offenses involved drugs, but two involved theft or forgery. Mr. Schoen has been law abiding since he was last released from prison on February 16, 2011, more than five years before the hearing on his application for a contractor’s license. Mr. Schoen credibly testified that he has been sober since October 8, 2008, almost eight years ago before the hearing and shortly after committing the crime that led to his last incarceration, and that he still attends NA meetings. It appears that he has completed his sentences, with the possible exception of the payment of full amount of restitution.

Mr. Schoen established that he has turned his life around. He also established that he has gained the trust and support of numerous people in the community based in part on the plumbing work that he has performed through his service company. Mr. Schoen established that it is highly unlikely that he will ever again use illegal drugs, engage in criminal conduct, or commit acts that involve dishonesty. Although Mr. Schoen’s criminal history justifies continued monitoring, he established that because he presents minimal risk to the public, he is a good candidate for licensure.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the final order in this matter, Applicant J S Professional Plumbing LLC DBA: J S Professional Plumbing’s Pending License No. 302202 shall be granted, but that the license be placed on probation for a two-year term.

It is further recommended that the terms of the probation include that Applicant is required to comply with all Arizona statutes and regulations governing licensed contractors, including A.R.S. § 32-1154(A)(4), which requires contractors to comply with statutes or rules governing social security, workers’ compensation, and unemployment insurance if they have employees, and that the Registrar may at any time and without prior notice conduct an audit of Applicant’s business practices to determine compliance with applicable laws and regulations.

It is further recommended that the terms of the probation include that Mr. Schoen is required to apprise the Registrar of the status of his payment of court-ordered restitution and that if he fails to make required payments in a timely manner or to pay off the restitution during the two-year probationary period.

It is further recommended that if Mr. Schoen fails to comply with the terms of his probation, Applicant’s license shall be subject to discipline under A.R.S. § 32-1154(A)(19).

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 23, 2016.

/s/ Diane Mihalsky

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors