ALJDEC decisions subject to certification as final

2016A-2288-ROC · Registrar of Contractors · 2016-09-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 26, 2016 APPEARANCES: Dexter Albert, Office Manager, appeared on behalf of Applicant Heber Pro Painting LLC, doing business as Heber Professional Painting. 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 29, 2015, Applicant Heber Pro Painting LLC, doing business as Heber Professional Painting (Applicant) submitted a license application to the Registrar of Contractors (Registrar). 2. Jesus M. Gonzalez-Lopez was named as a member and the Qualifying Party on Pending License Application No. 302518 for Applicant. 3. Applicant answered “Yes” as to Mr. Gonzalez-Lopez in response to the question, “Have you ever been convicted of a felony, or currently have a felony charge pending? List all felony convictions.” Applicant disclosed that Mr. Gonzalez-Lopez had been convicted of a felony on May 1, 2012 for sexual conduct with a minor in Coconino County. 4. On or about June 6, 2016, Lisa Meadows, of the Registrar’s Licensing Department, 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 June 6, 2016 letter concluded as follows: [T]he Registrar finds that due to the prior felony conviction, Mr. Gonzalez-Lopez has failed to establish good character and reputation. As a result of Mr. Gonzalez-Lopez’s felony conviction, the Registrar has determined that Heber Pro Painting does not qualify for a contractor’s license.

5. Applicant requested a hearing on the Registrar’s denial of its license application. 6. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 7. An evidentiary hearing was held on August 26, 2016. Applicant submitted one exhibit and presented the testimony of Mr. Gonzalez- Lopez; Dexter Albert, Office Manager; and Heber Martinez, Owner. The Registrar submitted seven exhibits and presented the testimony of Bonny Allan, Staff Attorney. Hearing Evidence 8. Ms. Allan testified that she was familiar with Applicant’s application for licensing. Ms. Allan said that upon receipt of the application, the application was referred to the Good Character Committee. 9. Based on the information received by the Good Character Committee, Mr. Gonzalez-Lopez was convicted on or about May 29, 2013, of Sexual Conduct with a Minor, a class 6 undesignated felony committed on or between April 1, 2012, and May 31, 2012. The court sentenced Mr. Gonzalez-Lopez to serve three years of probation, commencing on May 29, 2013. 10. According to the court documents, Mr. Gonzalez-Lopez engaged in a consensual sexual relationship with the victim, a 15 year old female, when he was 25 years old. On or about July 22, 2012, a Flagstaff Police Officer was dispatched to the Flagstaff Medical Center in reference to a report of Sexual Conduct with a Minor. When the officer arrived, he contacted the victim and her mother. The victim told the officer that she was 12 weeks’ pregnant and that Mr. Gonzalez-Lopez was the father. The victim reported that when she told Mr. Gonzalez-Lopez about the pregnancy, he said he was no longer interested in her. On or about August 6, 2012, the victim was interviewed by a Safe Child forensic interviewer, at which time she reported she had a miscarriage. 11. On or about January 16, 2013, a detective located Mr. Gonzalez- Lopez at the home of another juvenile. Mr. Gonzalez-Lopez admitted he had engaged in a sexual relationship with the victim and was currently engaged in a sexual relationship with his present girlfriend, who was 17 years old at the time. 12. Ms. Allan testified that the Good Character Committee determined that Mr. Gonzalez-Lopez’s conviction for sexual conduct with a minor was related to the Registrar’s duty to protect the public in that a licensed contractor often goes into the home of customers including those that have children in the home. Ms. Allan also testified that the conduct was fairly recent and he was engaged in a relationship with another minor at the time he was approached by the police. Ms. Allan also noted that according to court documents, at the time of his sentencing, Mr. Gonzalez-Lopez was delinquent 12 months on child support obligations to the mother of his child. Ms. Allan acknowledged that a the informal settlement conference, Applicant provided documentation that the conviction was reduced to a misdemeanor. 13. Mr. Gonzalez-Lopez testified that he acknowledged he was wrong to engage in a sexual relationship with a juvenile. Mr. Gonzalez- Lopez noted that his 17 year old girlfriend turned 18 two months later and was now his wife. Mr. Gonzalez-Lopez also stated that he was not deported at the time because he established that he was a good person who made a mistake. Mr. Gonzalez-Lopez argued that he should not be treated like a monster who would engage in sexual activity with a minor again. Mr. Gonzalez-Lopez testified that he had worked hard to get the license and pass the necessary examinations. 14. Applicant also presented letters of reference attesting to Mr. Gonzalez-Lopez’s 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. Gonzalez-Lopez’s good character and reputation as required by A.R.S. § 32-1122(D) in that he was convicted of the class six undesignated felony of sexual conduct with a minor. This supports the Registrar’s determination that Mr. Gonzalez-Lopez, as a member and the Qualifying Party for Applicant, lacks good character and reputation necessary for licensure as required by A.R.S. § 32-1122(D). 6. The evidence of record supports the Registrar’s denial of Applicant’s Pending Application License No. 302518. 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, September 14, 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