ALJDEC decisions subject to certification as final

2016A-1968-ROC · Registrar of Contractors · 2016-08-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 29, 2016 APPEARANCES: Francisco Martinez appeared on behalf of Applicant Marza General Contractors LLC. The Registrar of Contractors was represented by Assistant Attorney General Thomas Raine. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. On or about October 9, 2015, Francisco Vincente Martinez submitted to the Registrar of Contractors (Registrar) Pending License Application Number 302104 (Application) on behalf of Marza General Contractors LLC (Applicant). Mr. Martinez was listed as the Manager of Applicant. 2. Mr. Martinez answered “Yes” in response to the question, “Have you ever been convicted of a felony, or currently have a felony charge pending?” Mr. Martinez disclosed that he was convicted of Forgery in 2006. 3. On or about May 23, 2016, the Registrar’s Licensing Department Manager, Lisa Meadows, sent a letter to Applicant to notify it that the Registrar had determined to deny its license application under A.R.S. § 32-1122(D) and A.R.S. § 32-1154(A)(7), and summarizing the facts that supported the denial under each statute. Ms. Meadow’s May 23, 2016 letter concluded as follows: [T]he Registrar finds that due to the prior felony conviction, Martinez has failed to establish good character and reputation. As a result of Martinez’s felony conviction, the Registrar has determined that [Applicant] does not qualify for a contractor license.

4. Applicant requested a hearing on the Registrar’s denial of its license application. 5. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 6. An evidentiary hearing was held on July 29, 2016. Mr. Martinez testified on behalf of Applicant. The Registrar submitted nine exhibits and presented the testimony of Ms. Meadows. Hearing Evidence 7. Ms. Meadows testified she was familiar with the Application. Ms. Meadows stated that the Registrar has a Good Character Committee that reviews applications when questions of an applicant’s character are presented. The Good Character Committee reviewed the Application in this matter. 8. On or about March 24, 2006, Mr. Martinez pled guilty and was convicted in Maricopa County Superior Court in Case No. CR2005- 011595-003 of Forgery, a Class Four Felony, committed on or about November 23, 2003. Mr. Martinez was sentenced to two months incarceration in the county jail beginning on July 1, 2006, was sentenced to four years of probation, and was ordered to pay $9,999.99 in restitution. 9. The conviction was based on an alleged course of conduct by Mr. Martinez, a loan officer; Carmen Cantu, a real estate salesman; Betty Jane Barbee, and Victoria Marie Cervantes, an escrow officer and notary public, in which the parties participated in a scheme to obtain fraudulent home loans through Security Mortgage Corporation where Mr. Martinez was employed as a loan officer. 10. On or about May 7, 2008, Mr. Martinez’s probation was terminated after he successfully served two years’ probation without incident. 11. Ms. Meadows testified that the Good Character Committee determined that Mr. Martinez’s conviction for forgery was related to the work of a contractor in that Mr. Martinez was convicted of forging documents related to contracts and identity theft; that not enough time had passed between the conviction and the Application; and that Applicant provided no evidence of Mr. Martinez’s rehabilitation. Thus, the Registrar determined that Applicant failed to establish the Mr. Martinez, a person named on the license, was not a person of good character. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1122. 2. Applicant bears the burden of proof to establish that it meets statutory qualifications for a contractor’s license by a preponderance of the evidence. 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). “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). 3. A.R.S. § 32-1122 provides, in relevant part, as follows: D. 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 or by showing that the person was named on a contractor's license that was suspended or revoked in another state.

4. A.R.S. § 32-1154(A) provides, in relevant part, as follows: 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: . . . . (7) Conviction of a felony.

5. The evidence of record supports the conclusion that Applicant failed to establish Mr. Martinez’s good character and reputation as required by A.R.S. § 32-1122(D) in that he was convicted of Forgery, a Class Four Felony. Therefore, the evidence supports the Registrar’s denial of Applicant’s Pending Application License No. 302104. RECOMMENDED ORDER Based on the foregoing, it is recommended that the denial of Applicant’s pending license application be affirmed. 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, August 18, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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