ALJDEC decisions subject to certification as final

2016A-3841-ROC · Registrar of Contractors · 2017-01-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors

COMPLAINANT

v.

Sprinkler King, LLC

Application 307180

APPLICANT

No. 2016A-3841-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 11, 2017

APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine. Applicant Sprinkler King, LLC was represented by Dan Morris.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

On or about June 17, 2016, Applicant Sprinkler King, LLC (Applicant) submitted a license application to the Registrar of Contractors (Registrar).

Ralph Marvin Holt was named as the Qualifying Party on Pending License Application No. 307180 for Applicant.

Applicant answered “Yes” as to Mr. Holt 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. Holt had been convicted of a felony on August 1, 2003, for Attempted Child Molestation in Maricopa County.

On or about August 30, 2016, Bonny Allan, 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. Allan’s August 30, 2016 letter concluded as follows:

[T]he Registrar finds that due to the prior felony convictions, Mr. Holt has failed to establish good character and reputation. As a result of Mr. Holt’s felony conviction, the Registrar has determined that Applicant does not qualify for a contractor license.

Applicant requested a hearing on the Registrar’s denial of its license application.

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

Hearing Evidence

Bonny 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.

Based on the information received by the Good Character Committee, Mr. Holt pled guilty to Sexual Abuse, a class 3 felony, committed between June 24, 1995; Attempted Molestation of a Child, a class 3 felony and dangerous crime against children in the second degree, committed between December 1, 1995, and January 19, 1996; and Attempted Molestation of a Child, a class 3 felony and dangerous crime against children in the second degree, committed between September 30, 1999, and September 29, 2001. The court sentenced Mr. Holt to serve 15 years of confinement and lifetime probation upon release.

According to the court documents, Mr. Holt engaged in sexual intercourse or oral sexual contact, with a minor under the age of 15 when Mr. Holt was 20 years old; intentionally or knowingly molested a child under the age of 15 when Mr. Holt was between the ages of 18 and 19 years old; and intentionally or knowingly molested a child under the age of 15 when Mr. Holt was between the ages of 23 and 25 years old.

Ms. Allan testified that the Good Character Committee determined that Mr. Holt’s convictions 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 while the conduct occurred some time ago, Mr. Holt was only released from custody in March 2016 and not enough time had passed to establish Mr. Holt was rehabilitated.

Mr. Holt presented numerous character witnesses including people who knew him while he was in prison and people who have known him since his release.

Mr. Holt testified that part of his recovery process was to understand while the offenses occurred in the first place. Mr. Holt indicated that he had always experienced same-gender attraction and improperly acted on those feelings by engaging in sexual contact with minors. Mr. Holt testified that he can now have “positive relationships.” Mr. Holt indicated that as a condition of his probation, he could not be at a residence without prior written permission of the owner. Mr. Holt stated that as a result of his probation limitations, Applicant would not be seeking residential projects, but if residential projects came to Applicant, he would not perform those jobs.

Applicant also presented letters of reference attesting to Mr. Holt’s progress in therapy.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1122.

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).

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.

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.

The evidence of record supports the conclusion that Applicant failed to establish Mr. Holt’s good character and reputation as required by A.R.S. § 32-1122(D) in that he was convicted of the class 3 undesignated felonies of Sexual Abuse and Attempted Molestation of a Child.

This supports the Registrar’s determination that Mr. Holt, as a Qualifying Party for Applicant, lacks good character and reputation necessary for licensure as required by A.R.S. § 32-1122(D).

The evidence of record supports the Registrar’s denial of Applicant’s Pending Application License No. 307180.

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, January 31, 2017.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors