ALJDEC decisions subject to certification as final

2016A-3421-ROC · Registrar of Contractors · 2017-01-03

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors

-v-

ProMasters A/C & Heating Refrigeration LLC

Pending License Application No. 305660

Applicant

No. 2016A-3421-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: Wednesday, December 13, 2016, at 8:30am

APPEARANCES: Tom Raine (“Attorney Raine” for the Registrar of Contractors “ROC” or “Registrar”); Brian Schmidt (“Applicant Appellant”); Vicci Schmidt (“Witness1”); Bonny Allan (“Staff Attorney” for ROC Legal Department-Felony Review Character Committee); and Brian Kirby (“Witness2” for Registrar of Contract Applications Division).

TELEPHONIC APPEARANCE: Jeffrey Paul Bloomquist (“Witness3” for Applicant Appellant and Applicant Member/Qualifying Party).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

ProMasters A/C & Heating Refrigeration, LLC (“Applicant Appellant”) appeals the Arizona Registrar of Contractors’ (“ROC” or “Registrar”) denial of its application for a contractor’s license. The ROC based the denial upon finding that Applicant’s Member lacks good character and reputation. The ROC found lack of good character and reputation based on two convictions of the Member. Applicant requested a hearing to challenge the denial.

At hearing, this tribunal entered marked Exhibits 1 through 7 from the ROC, and received evidence and testimony. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to conditionally qualifying Applicant’s pending license no. 305660.

FINDINGS OF FACT

Background and Procedure

On or about April 12, 2016, Brian Douglas Schmidt on behalf of ProMasters A/C & Heating Refrigeration, LLC, filed an Application for a Class CR-39 Air Conditioning and Refrigeration Contractor’s License with the Registrar. Mr. Schmidt was listed on the application as a not qualifying party for ProMasters A/C & Heating Refrigeration LLCs’ and Jeffery Paul Bloomquist was listed as the member and qualifying party.

The company name on the License Application was supported as a Limited Liability Company in good standing, File No. L20817986.

In response to question 23 on the license application, “Have you ever been convicted of a felony, or currently have a felony charge pending? Applicant Appellant answered yes and disclosed the following conviction: (1) Class Four (4) felony conviction on July 8, 2003, for aggravated driving under the influence of intoxicating liquor or drugs.

On or about May 23, 2016, the Registrar issued a Notice of Specific Deficiencies in License Application as determined for missing information and requesting court documents for felony Case No. CR2007-01752 and S-0700-CR-[number redacted].

Mr. Schmidt provided various court documents surrounding CR2007-01752, including several character letters drafted and submitted by various persons in the community. On April 18, 2008, a Minute Entry Action: Sentence of Probation/Domestic Violence Court was entered for “Aggravated Assault, a class 3 felony, non-dangerous and non-repetitive offense, in violation of A.R.S. §§ 13-1204(A)(2)(B), 13-1203(A)(1)(B), 13-610, 13-701, 13-702.01, committed on October 18, 2007.” An Order of Discharge from Probation signed and dated September 29, 2010, by the Court was filed on or about October 1, 2010, releasing Applicant Appellant from probation as of September 9, 2010 (Early Term).

On August 3, 2016, a Notice of License Denial to ProMasters A/C & Heating Refrigeration, LLC was issued by the Registrar. The grounds for the denial was based on “(1) Mr. Schmidt failed to establish good character and reputation due to prior felony convictions, and (2) Mr. Schmidt failed to establish good character and reputation because he failed to disclose certain felony conviction.

Applicant Appellant requested a hearing on the Registrar’s denial of ProMasters A/C & Heating Refrigeration, LLC, license application.

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

A Hearing was held on December 13, 2016. Applicant Appellant bears the burden of proof that he possesses the moral character to qualify for a Class CR48 Contractors license. Mr. Schmidt testified on behalf of ProMasters A/C & Heating Refrigeration, LLC, and offered witnesses Vicci Schmidt and Jeffrey Paul Bloomquist. The Registrar submitted seven (7) exhibits and presented testimony from Bonny Allan, ROC Staff Attorney, Felony Review Character Committee.

Additional Hearing Evidence

Mr. Schmidt’s Criminal History

The May 2003 Conviction

Mr. Schmidt was born sometime in 1964.

On or about July 7, 2003, Mr. Schmidt was sentenced in Maricopa County Superior Court Case No. CR2003-034446 for Aggravated Driving Under the Influence Liquor or Drugs, a Class 4 felony, a non-dangerous, non-repetitive offense that occurred on May 19, 2003. He was ordered to serve 2 1⁄2 years at the Department of Corrections. Mr. Schmidt was approximately five (5) months away from completing a five (5) year probation sentence for an incident that occurred on October 23, 1998, as noted in his 2003 conviction and as a result of a probation violation, he was ordered to serve a jail sentence on July 7, 2003.

The October 2007 Conviction

On or about October 16, 2007, Mr. Schmidt was indicted in Pinal County Superior Court Case No. CR2007-01752/DV for aggravated assault with a deadly weapon or dangerous instrument, to wit: pistol, a class 3 dangerous felony. He was later reduced to a Class 3 felony, non-dangerous, non-violent offense on April 18, 2008, and ordered to serve 213 days in Pinal County Jail and upon release be placed on five (5) years supervised probation. In review of the indictment offense summary, statements were obtained from Mr. Schmidt’s then-wife, Teresa, who stated, “she and Brian had been consuming alcohol since 12:30 that afternoon and eventually began to argue.” The weapon was sitting on the coffee table when the deputy arrived, and Ms. Schmidt stated, “that the weapon had been altered to work as a cap gun but she continue to feel fear during the incident.” Mitigating factors were “defendant’s involvement in counseling or professional help.”

The Court dismissed the allegation of dangerousness on or about March 11, 2008.

Mr. Schmidt successfully completed his probation and an Order of Discharge from Probation was entered finding, “the defendant completed the period of probation as calculated pursuant to A.R.S. §§ 13-901 and 130-902 on September 9, 2010 (Early Term).”

Restoration of Civil Rights

Applicant Appellant submitted two (2) Applications to Restore Civil Rights to both the Superior Court of Arizona Pinal County on November 15, 2016, and the Superior Court of Arizona Maricopa County on November 16, 2016. Attached to each Application were character reference letters from Clayton Hogin of Gusto Construction LLC; Vicci Schmidt, his wife of almost 7 years; and long-time friend, Michelle Berrieault.

A Response to Motion to Restore Civil Rights was received from Pinal County stating, “after a review of the file and other documents it appears that the Defendant has made positive changes to his life and had paid all his fines and fees. Based on the foregoing the State takes no position and leaves the requested relief to the discretion of the Court.”

An additional character reference letter dated December 3, 2016, was provided by Carolyn Muirhead, who stated she has entrusted Mr. Schmidt to be in her home without her being there.

Hearing Evidence

Testimony of Bonny Allan (“Staff Attorney”)

Bonny Allan (“Staff Attorney”) testified on behalf of the Registrar that she is a Staff Attorney in the Legal Department Character Committee performing felony review of applicants.

Attorney Raine introduced various exhibits of which Staff Attorney relied on to include Exhibit 1 in which Staff Attorney restated items 4 through 7 listed on the Registrar’s Notice of License Denial. Specifically, (4) Mr. Schmidt disclosed on the April 13, 2016 license application, that he had been convicted of a DUI in 2003, in Mesa, Arizona; (5) On or about July 7, 2003, Mr. Schmidt was convicted of an Aggravated DUI a class 4 felony and sentenced to 2.5 years in prison in case no. CR2003-034446; (6) Mr. Schmidt failed to disclose, on the April 13, 2016 license application, that he had been convicted of Aggravated Assault in 2008; and (7) On or about April 18, 2008, Mr. Schmidt was convicted of Aggravated Assault, a class 3 dangerous felony. Mr. Schmidt was required to serve 109 days in jail and serve 5 years of probation in case no. CR2007-01752. On September 29, 2010, Mr. Schmidt was granted early termination from the probation.

Attorney Raine questioned Staff Attorney regarding the indictment dated October 24, 2007, and the Minute Entry Action: Sentence of Probation/Domestic Violence Court.

Attorney Raine directed Staff Attorney to the Court’s Sentence of Imprisonment imposed on Applicant Appellant for his 2003 offense; and the Applicant Appellant’s response to Line 23 of the Application.

Attorney Raine questioned Staff Attorney regarding named members disclosed to the Arizona Corporate Commission as Brian D. Schmidt and Jeffrey B. Bloomquist.

Attorney Raine reviewed Applicant Appellant’s Applications to Restore Civil Rights, and the reference letters of character provided. It was stated that Mr. Schmidt’s civil rights have not yet been restored but that the State did not oppose,

Testimony of Brian Schmidt

Mr. Schmidt testified that he was a show gunfighter and that the referenced gun in the domestic violence complaint was a show piece and modified as a cap gun. However, he admitted that at one point in his past he experienced moments that he was not proud of as a raging alcoholic, and that he has been sober for about 8 years.

As part of his rehabilitation, he attended both Alcohol Anonymous, Anger Management classes, and attended vocational training as part of his rehabilitation.

He remains in a stable marriage with Vicci Schmidt for the past 7 years.

Applicant Appellant is currently working to restore his civil rights.

Attorney Raine questioned Mr. Schmidt on his skills and he indicated he was registered as a business under the name of Mechanical for 7 months but that he and his partner could no longer continue to work with one another. He testified that he finds many persons in this field to be dishonest and overbill.

Mr. Schmidt testified is able to work but mutually resigned from his last position. He ultimately seeks to be his own boss with the assistance of his wife, who is good at business.

The Administrative Law Judge asked Applicant Appellant if he possessed a valid driver’s license to which he provided a copy. Administrative notice was taken that Mr. Schmidt’s license indicated he is a Veteran. When questioned on his years of service, Mr. Schmidt testified he served 9 years in the United States Army and was honorably discharged in 1991.

Testimony of Jeffrey Paul Bloomquist (Telephonic)

Mr. Bloomquist acknowledged that he is the Qualifying Party and Member of ProMasters A/C & Heating Refrigeration, LLC, Pending License No. 305660.

Attorney Raine asked Mr. Bloomquist how long he has known Mr. Schmidt to which he replied 5 years, and that he was his trainer at Longhorn. They rode together and he taught Mr. Schmidt in the filed after his schooling.

Mr. Bloomquist testified that he spent around 40 hours a week with Mr. Schmidt and found him to be honest. When asked if he had knowledge about Mr. Schmidt’s prior convictions, he testified that he had no idea. That he never saw Mr. Schmidt drunk, and that if he was drinking he would have noticed.

Mr. Bloomquist testified he does not believe Mr. Schmidt is physically violent and finds him to be of good moral character, and that he would trust him to be inside a family member’s home.

Mr. Blooomquist was asked how many installs he and Mr. Schmidt performed to which he replied, around 200-300, designs from start to finish (new builds around 20-30, and that he worked side-by-side with Mr. Schmidt for 4 years.

Testimony of Vicci Schmidt

Mrs. Schmidt testified that she knew Mr. Schmidt one (1) year prior to marrying him, and that she has never seen him become violent.

Mrs. Schmidt testified she is an owner/operator of a hair salon and has been since 1982.

Mr. Schmidt’s Evidence of Rehabilitation

Mr. Schmidt was incarcerated in the county jail for 213 days with 104 days deferred commencing April 18, 2008, with credit for 49 days served for his second offense. Thereafter, Mr. Schmidt was placed on supervised probation for five (5) years. Mr. Schmidt successfully completed his probation on or about September 9, 2010, (early term) based on good behavior and the absence of any further discipline.

While in prison, Mr. Schmidt reexamined his priorities and remained committed to turning his life around. When on probation, Mr. Schmidt participated in the domestic violence court program, to include no alcohol, curfew and regular judicial review.

Mr. Schmidt took classes at RSI and graduated in 2012 with honors. He is now pursuing enrollment in contractor’s school.

Mr. Schmidt testified he is committed to staying sober and has been sober for more than seven (7) years and provided several character references attesting to his sobriety.

Mr. Schmidt is currently working on getting his civil rights restored. Mr. Schmidt testified that he understands he needs to have his rights restored, is ready to take on the challenges of being a contractor and running his own business.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

ProMasters A/C & Heating Refrigeration, LLC, bears the burden of proof to establish that it meets statutory qualifications for a contractor’s license 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.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. 32-1122(D)(5) provides grounds for suspension or revocation of a contractor license if “[m]isrepresentation of a material fact by the applicant in obtaining a license . . ..“ in this instance, Mr. Schmidt acknowledged that on or about October 16, 2007, he plead guilty to aggravated assault, a Class 3 felony, non-dangerous and non-repetitive offense in Pinal County. However, he testified that he did not knowingly misrepresent a material fact because he believed this incident to be a misdemeanor offense. In review of the indictment offense summary, there are notes in the record that make reference to a misdemeanor offense. Specifically, the Victim’s Statement stated that “she believes he is doing well on his current probation for a misdemeanor offense of domestic violence,” and collateral contacts stated, “On March 5, 2008, this officer spoke to Norm Schafer, the defendant’s supervising probation officer for his misdemeanor offense.”

Cause therefore does not exist under A.R.S. §§ 32-1122(D) and 32-1154(A)(5) for the Registrar to deny ProMasters A/C & Heating Refrigeration, LLCs’ license application based on Mr. Schmidt’s proven rehabilitation of his moral character and good reputation.

A contractor’s license is a privilege, not a right. Even though cause may exist statutorily 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." . . .

Mr. Schmidt credibly testified that he has changed his life and wants to obtain a contractor’s license so that he can provide an honest service to the community. Mr. Schmidt has served two (2) prison sentences, and successfully completed probation more than seven (7) years ago. Mr. Schmidt provided credible testimony that he has turned his life around, has been leading a life of sobriety, and is in a stable, loving marriage with his wife of seven (7) years. Mr. Schmidt provided witnesses who testified on his behalf and were subject to cross-examination and he did testify about the specific changes he has made in his life that make future criminal conduct unlikely such as staying honest and active in his trade.

“[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.” While grounds may have existed under A.R.S. §§ 32-1122(D) and 32-1154(A)(5) to deny ProMasters A/C & Heating Refrigeration, LLC, Pending License No. 305660, Mr. Schmidt provided credibly testimony and witnesses that he has made substantial progress in his rehabilitation since his early release of his five (5) years of supervised probation in 2010, and established that he is sufficiently rehabilitated from 2007 to the present.

Additionally, the Administrative Law Judge further acknowledges character can change over time, and it is incumbent upon an applicant to show rehabilitation of the person’s character in order to prove that an applicant meets the good character requirement for licensure. In this instance, based on testimony obtained from Mrs. Schmidt and Mr. Bloomquist, a member/qualifying party to this Application, and Mr. Schmidt’s testimony of his continued activities to attending classes, and maintain good character and reputation, the tribunal finds that Applicant Appellant has proven rehabilitation and consistent stability of his rehabilitation over the course of reasonable time to establish good character and reputation, and the various character reference letters provided from former employers, long-time friends, and persons in the community, that Applicant Appellant show this Tribunal of his rehabilitation.

Applicant has shown that the persons on the pending license application are persons of good character and reputation.

RECOMMENDED ORDER

IT IS RECOMMENDED that the Registrar of Contractors find that ProMasters A/C & Heating Refrigeration, LLC is “conditionally” qualified for Pending License No. CR39.305660-D.

Applicant Appellant shall provide proof of restoration of civil rights in both Pinal and Maricopa Counties, and thereafter upon issuance of license be placed on a one (1) year probationary period.

Done this day, January 3, 2017.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors