ALJDEC decisions subject to certification as final

2016A-3952-ROC · Registrar of Contractors · 2017-04-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors

COMPLAINANT

-v-

The Countertop Center, LLC

License Application No. 307761

Applicant

No. 2016A-3952-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: Tuesday, March 14, 2017, at 8:30 a.m.

APPEARANCES: Gary D. Haynes for The Countertop Center, LLC (“Applicant Appellant”); Mike Thal (“Applicant’s Attorney”); John P. DiBacco, Ph.D (“Expert Witness” for Applicant Appellant); Bonny Allan (“Staff Attorney” for the Registrar of Contractors (“Registrar” or “ROC”)); Brian Kirby (“Witness” for the Registrar); and Thomas Raine (“Registrar’s Attorney”).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

The Countertop Center, LLC (“Applicant Appellant”) appeals the Arizona Registrar of Contractors’ (“ROC” or “Registrar”) denial of its license application no. 307761 for a contractor’s license. The Registrar based its denial upon finding Applicant’s Qualifying Party failed to establish good character and reputation due to prior felony convictions. Applicant requested a hearing to appeal the denial.

At hearing, this tribunal took evidence and heard testimony from the parties, witnesses and admitted as evidence Exhibits 1 through 13 received from Applicant’s Attorney, and Exhibits 1 through 5 received from the Registrar. The parties stipulated to enter all Exhibits. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to affirm the Registrar’s denial of Applicant’s license application no. 307761 for the reasons set forth below.

FINDINGS OF FACT

Background and Procedure

On or about July 14, 2016, Gary Douglas Haynes on behalf of The Countertop Center, LLC, filed an Application for a Class CR-60 Finish Carpentry Contractor’s License with the Registrar. Mr. Haynes listed himself on the application as the qualifying party for The Countertop Center, LLC.

The company name on the License Application listed, The Countertop Center, LLC, a Limited Liability Company in good standing, File No. L18754500, as the business name Applicant Appellant will operate under should a license be granted.

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: a charge of sexual abuse in 1992 before the AZ Supreme Court.

On September 13, 2016, a Notice of License Denial (“Notice”) to The Countertop Center, LLC, was issued to Applicant Appellant from the Registrar. The grounds for the denial was, “(1) Mr. Hayes failed to establish good character and reputation due to prior felony convictions.”

The Notice stated, “A.R.S. §32-1122(D) states that 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.”

The Notice further stated, “The grounds for suspension or revocation of a contractor license are found in A.R.S. §32-1154(A). Relevant to this application is Paragraph 7, which states “[c]onviction of a felony.”

In summary of Applicant’s license denial, the Registrar found that due to the prior felony conviction, Mr. Haynes has failed to establish good character and reputation.

Applicant Appellant requested a hearing to appeal the Registrar’s denial of The Countertop Center, 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 March 14, 2016. Applicant Appellant bears the burden of proof that he possesses the good character and reputation to qualify for a Class CR60 Finish Carpentry Contractors license.

Additional Hearing Evidence

Mr. Haynes’s Criminal History

The 1992 Conviction

Mr. Haynes was born sometime in 1969.

On or about March 18, 1992, Mr. Haynes was sentenced in Maricopa County Superior Court Case No. CR91-06613 for Charge VI: Attempted Sexual Abuse and Dangerous Crime Against Children in the Second Degree, a Class 3 felony; and Charge VII: Attempted Molestation of a Child and Dangerous Crime Against Children in the Second Degree, a Class 3 felony committed on or between June 1991 thru August 6, 1991.

Mr. Haynes was sentenced to (1) a lifetime of probation commencing March 18, 1992; (2) incarceration in the Maricopa County Jail for a period of 12 months with eligibility for the work furlough program; (3) payment of a monthly probation services fee to the Clerk at the rate of $30 commencing May 1, 1992; payment of an assessment in the amount of $200; and payment of fee of $8.00. Counts I through V were dismissed.

Following the conviction, Mr. Haynes participated in several years of sex offender treatment through Family Transitions (“Agency”), and provided a copy of a Summary prepared by the Agency dated April 11, 2008, that indicated he was in treatment with this Agency since May 1992, and with Thomas Romero, M.C., LPC, since April 2006. Mr. Romero summarized that to date Mr. Haynes has completed over 800 hours of sex offender treatment and transitioned from a bi-weekly maintenance group into a monthly maintenance group. Mr. Romero further noted Mr. Haynes remained active in his treatment and that he has not reoffended since being placed on probation.

The Summary set forth findings from various testing and noted that Mr. Haynes remained current with all testing, and recent testing performed by Harvey Polini, M.Ed, LPC with Mountain Valley Counseling during January 2008, and that it appeared he has adequately internalized treatment and has completed the requirements of this agency.

Applicant Appellant also included a copy of Donald Tatro, Ph.D., 19-page, comprehensive psychological evaluation conducted on January 17, 1992. During the clinical interview lasting approximately six and a half hours, Dr. Tatro administered the following psychological tests, Minnesota Multiphase Multiphasic Personality Inventory (MMPI-2), Bender Visual-Motor Gestalt Test, Figure Drawing Test, and Sentence completion Test.

Termination of Lifetime Probation

Applicant Appellant provided copy of a Memo to the Court filed in the Maricopa County Superior Court on July 27, 2009. The Memo was prepared by Carrie Turek of the Maricopa County Adult Probation Office in response to Mr. Haynes Motion for Reconsideration of Early Termination from his lifetime probation. The Memo was signed by Judge Timothy Ryan of the Maricopa County Superior Court dated July 23, 2009, with the following Direction: “Take the Following Action: Terminate Probation At This Time.”

Applicant Appellant also included a copy of the Court’s Minute Entry, that stated effective July 27, 2009, the Court so Ordered granting Defendant’s Petition for Early Termination of Probation.

Domestic Relations Court Documents

Applicant Appellant is the biological father of two (2) minor children.

Minute Entries from the Maricopa County Superior Court in Case No. FC2010-005954 were provided and entered as exhibits as relevant to family matters surrounding the care and custody of his biological sons.

On or about December 10, 2010, after its evidentiary hearing, the Court, modified temporary orders and entered a Minute Entry finding that while Father is a registered sex offender, he places no significant risk to the child if he has unsupervised parenting time and shares joint legal and physical custody. At this time, the Court considered custody matters surrounding one child born July 4, 2005. Mother was expecting another child conceived by the parties but not yet born.

On July 26, 2011, the Court entered its Decree of Dissolution and adopted the findings of the December 10, 2010 minute entry, citing A.R.S. §25-403.05(A), and further stated, “the Court also finds that Mother’s unopposed relocation to Mexico makes joint custody unrealistic and impractical,” and Ordering that Mother shall have sole legal custody of both boys.

On or about June 3, 2014, at an evidentiary hearing, Respondent-Father was present and Petitioner-Mother did not appear. The Court made the following findings to Modification Judgment under the Best Interest of the Children Findings and considering A.R.S. §25-403 that there being no history of domestic violence or child abuse . . . or any sexual offender issues (A.R.S. §25-403.05) sufficient to preclude the award of joint legal decision-making, and awarded joint legal decision-making authority for both minor children to the Mother and Father. The Court further stated under A.R.S. §25-403.02(E) that shared or joint legal decision-making authority does not necessarily mean equal parenting time, and set forth a Parenting Time.

Mr. Haynes Restoration of Civil Rights

Applicant Appellant submitted his Motion to Restore Civil Rights under Case No. CR1991-006613A, filed with the Superior Court of Arizona Maricopa County on or about July 28, 2016, citing that Mr. Haynes was on probation for 17.5 years and discharged on July 30, 2009, and that 6.5 years has passed and Defendant has paid all outstanding monetary obligations.

On August 3, 2016, Notice was provided by the State of Arizona that that application will be considered in closed session with no appearance required on September 2, 2016.

On September 12, 2016, an Order was signed by Commissioner Christine Mulleneaux granting restoration of any and all civil rights which were lost or suspended as a result of the conviction as stated in the application; and denying a restoration of the Defendant’s right to possess a firearm and setting aside the judgment of guilt, dismissing the accusations or information and releasing the Defendant from all applicable penalties and disabilities resulting from this conviction. Reason for Denial: Nature of Offenses.

Character References

Applicant Appellant provided four (4) character reference letters as follows: (1) Letter of reference in business capacity for past 5 years from supplier (07/05/2016); (2) referral letter from satisfied customer for kitchen countertops (07/12/2016); (3) character reference concerning Applicant and his wife drafted by group pastor attesting to the couples involvement and dependability with group activities and as a satisfied customer of Applicant’s for bathroom countertop (11/04/2016); and (4) character reference from Discipleship Pastor since 2009 (n.d.). The Applicant Appellant provided copies of Letters nos. 1 and 4.

Hearing Evidence

Opening Statements

Applicant’s Attorney

Applicant’s Attorney opened that his client appeals the Registrar’s decision to deny him a contractor’s licensing. Applicant Appellant is a 47 year old male who was convicted of a felony 25 years ago for conduct occurring when at the age of 18 and has had no further incidents.

He was placed on lifetime probation; and in 2009, that condition of his conviction has been terminated. He has unsupervised custody of his children as the Court found he poses no risks. His civil rights have been restored. He demonstrates regret and bears the burden of proof to prove he has been rehabilitated.

Applicant Appellant plans to call John P. DiBacco as an Expert Witness. Applicant Appellant has more than 10 years’ experience in the countertop business and is seeking a contractor’s license so he can expand his business.

Registrar’s Attorney

Registrar’s Attorney opened that given the reasons for denial of licensing, Applicant Appellant will not meet his burden, and requests this tribunal to affirm the Registrar’s denial decision.

Testimony of John P. DiBacco, PhD (“Expert Witness”)

John P. DiBacco, PhD (“Expert Witness”) testified he is a psychologist licensed in both Nevada and Arizona. He has 30 years of experience specializing in clinical forensics. He has work with both men and women involving sex crimes and works for various agencies. He provided a narrative of his credentials that were read into the record.

Expert Witness first meet Applicant Appellant on February 20, 2017, to provide a risk evaluation and rehabilitation assessment. Expert Witness testified that he performed a document review of prior treatment reports and summaries, including Dr. Tatro’s presentence report and Family Transitions summary and what is relevant in the Treatment Summary prepared by Family Transitions is it was noted Applicant Appellant is not the worst kind of offender, and was diagnosed as a personality disorder.

Expert Witness stated there are several identifying factors used in assessing risk reduction. When questioned as to whether risk can be reduced to zero, he replied no, and that they look to levels of amelioration. He also pointed out that it is unusual for a court to lift an offender’s lifetime probation.

Applicant Appellant has been in treatment for 15-16 years and the outcomes have been significant. In Dr. Tatro’s clinical interview report, it was noted Applicant Appellant is a good candidate for treatment. Summaries and reports also indicated Applicant Appellant would benefit from individual and group work by talking, undergoing polygraphs and other testing. Applicant Appellant participated in ongoing testing that measured response levels to audio/visual content to determine arousal levels, and that all tests used shared the greater weight that he response well to treatment.

Expert Witness testified that Applicant Appellant was a victim of child abuse himself but that he does not use his involvement with a woman 20 years his senior, which begin when he was around the age of 15 and still a minor, as an excuse. He concluded that his risk assessment places Applicant Appellant below average because of his active role in his treatment.

Registrar’s Attorney asked Expert Witness if he conducted a full blown document review to which he replied that he obtained sufficient information to render his assessment. When asked how long he met with Applicant Appellant, he replied about one hour and 15 minutes.

He also questioned Expert Witness on whether there is an increased risk to children if the child is not the biological child of the offender, to which he replied there is no scientific reference. Expert Witness further explained the various methods of treatments that Applicant Appellant took an active role in including cognitive individual group therapy.

Applicant Appellant was classified as a youthful offender, classified as between the ages of 18-21, and treatments helped identify potential triggers. Therapy helped with cognitive restructuring, and in his review finds him to be below average risk with a low recidivism rate.

Treatment methods and tests employed followed the Abel-Becker Model and is referred to as Change Therapy.

Testimony of Gary D. Haynes (“Applicant Appellant”)

Gary D. Haynes (“Applicant Appellant”) testified that he is a 47-year-old male who grew up in the Maryvale area. He was raised by a single mom and was the youngest child. His siblings, two (2) sisters and two (2) brothers, were approximately 13 years older than him and were from his mother’s former marriage. He is currently divorced but living with his ex-wife and two (2) sons both born of the marriage.

Applicant Appellant provided credible testimony as to his work history beginning at the age of 15 when he was employed as a carpet cleaner. He also worked in the furniture business from domestic to imports, and in manufacturing, primarily cabinets and installs. He explained that due to market ebbs and tides, this inconsistency lead to his opening of The Countertop Center, LLC, on or about 2013.

Currently his business employs approximately 10 employees and leases approximately 7500 square feet of warehouse space for operations. Since his years of operation, there have been no customer complaints filed with the Attorney General or Better Business Bureau.

His primary role in the business is different from an installer positon as he serves more in a management capacity which tends to limit interaction with customers.

He testified that he began test preparation with the Arizona Contractor Center long before submitting an application for a contractor’s license, as he is seeking to expand his business toward a commercial-based clientele, such as new builds and upgrades of apartment buildings, hospital installs, and other large scale projects. Other reasons he testified for seeking a contractor’s license is that 70 percent of his business is customer pickups and the other 30 percent involves installs for less than $1,000. He believes that if granted a license, this would be good for Arizona as it would create more jobs.

Applicant Appellant stated he has had interaction with the Registrar’s staff following his application as they requested additional court documentation from him surrounding his felony.

He testified that he was not placed on house arrest and was permitted a one (1) year work furlough at the time of entering a plea. He also testified he has undergone extensive treatments in the 90s to include appropriate sexual reconditioning.

He stated he has undergone 18 years of treatment and in 2009 was removed from the condition of a lifetime of probation.

He also testified he has a monetary investment in his treatments as associated with testing, fees to probation, and treatment sessions.

He has adhered to treatments and has experienced personal growth.

Applicant’s Attorney defined “rehabilitation” as found under the ROC’s Substantive Policy Statements 100 & 103, New Oxford American Dictionary, and Black’s Law Dictionary. When asked if he poses a risk to the general public or children, he responded, no. And added that the Courts agree and why they terminated his lifetime probation.

He testified that he is the father of two minors and has joint parenting with his wife (ex), and they both engaged in counseling (pre-marriage) at Family Transitions. They also participated in a church marriage mentoring program.

He testified he had his civil rights restored.

The Registrar’s Attorney asked that while probation is terminated, is he still required to register as a sex offender, to which Applicant Appellant responded, yes.

Registrar’s Attorney asked about his age and the age range of the victims at the time of the offense to which he replied he was around 17 to 20 years of age and the child was around 9 to 11 years of age.

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 of the Registrar and performs felony review of applicants.

Staff Attorney set forth the process in which applications are reviewed upon disclosure of a felony. The first step is to send a deficiency notice requesting court documents such as copies of the indictment, pre-sentence report; and that there is further interaction between the Registrar and Applicant following the submission of an application.

She provided credible testimony that upon a review by the Registrar’s Good Character Committee of the Application from The Countertop Center, LLC, the committee reached a consensus that the felony is grounds for denial.

Applicant’s Attorney questioned Staff Attorney on whether the Good Character Committee consults with the report history and summaries to which she replied they found it unpersuasive and that registering as a sex offender does not go away.

Testimony of Brian Kirby (“Witness” for the Registrar)

Brian Kirby (“Witness” for the Registrar) testified that he has been working in the Licensing Division of the Registrar since January 15, 2017.

Witness provided credible testimony that the department views sex crimes against vulnerable persons more closely in the application process because crimes involving violence and children create a greater risk to the public.

Applicant’s Attorney asked if when reviewed they take into account rehabilitation, counseling, gainful employed, and passage of time. He asserted that it has been 25 years since this offense and no repeat offensives. Witness stated that they look to the nature of the crime, and given the registered sex offender conviction is not set aside, it continues to pose a risk.

Closing Statements

Applicant’s Attorney

Applicant’s Attorney concluded that Applicant Appellant engaged in two (2) decades of treatment, that his initial sentencing of a lifetime probation has been terminated, that the family court in its 2009 Minute Entry recognized his conviction and in light of the conviction found “there is no significant risk to the child if Father has unsupervised parenting tie and shares joint legal and physical custody.”

Followed by the Family Court’s entry of Decree of Dissolution in 2011, wherein the “Court adopts the finding of the December 20, 2010 minute entry that supports its determination that Father’s convictions pose no significant risk to the child if Father has unsupervised parenting time and shares joint legal and physical custody.”

In 2014, the Family Court modified the Judgment and continued in its finding, “that there is no history of domestic violence or child abuse . . . or any sexual offender issues (A.R.S. §25-403.05) sufficient to preclude the award of joint legal decision-making, as agreed.”

Applicant’s Attorney concluded that Dr. DiBacco testified the Family Court applies a strict standard in its findings, and the Applicant provided character references from customers and church personnel relative to his reputation. The tribunal asked whether the authors of the letters were aware of Applicant’s convictions to which Applicant Appellant replied no.

In its closing, Applicant Appellant asserts it has met its burden of proof that he poses no risk to the public.

Registrar’s Attorney

Registrar’s Attorney concludes that while Expert Witness testified the risk assessment is below average, that he has not proved it to be a quantified measure that there is never any risk.

Given the ages of the vulnerable persons, and considering even a minimum risk, any risk is unacceptable. While the Registrar acknowledges Applicant Appellant’s efforts to mitigate any negative impact stemming from the conviction, Applicant Appellant’s failed to meet its burden of proof, and the Registrar requests the application be denied.

Mr. Haynes’s Evidence of Rehabilitation

Mr. Haynes provided several exhibits listed herein as Nos. 17 through 27, and further provided testimony as to his work history, compliance with the conditions to his convictions, positive contributions to the community, character references, and no repeat offenses. However, none of these support a finding that Applicant Appellant is no longer required to continue to comply with sexual offender restraints; specifically, register as a sex offender.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

The Countertop Center, 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)(7) provides grounds for suspension or revocation of a contractor license, which states, “[c]onviction of a felony.” Mr. Haynes disclosed on his application that on or about 1992, he was convicted of sexual abuse. Upon the Registrar’s Deficiency Notice requesting additional court documents, it was found that Applicant Appellant was found guilty of the crimes of, “attempted sexual abuse and dangerous crime against children in the second degree”; and “attempted molestation of a child and dangerous crime against children in the second degree”. Both crimes are “Class 3 felonies, non-dangerous and non-repetitive offenses in Maricopa County.”

Cause therefore does exist under A.R.S. §§ 32-1122(D) and 32-1154(A)(7) for the Registrar to deny The Countertop Center, LLC’s license application based on Mr. Haynes’s prior felony conviction.

Applicant Appellant bears the burden of proof to show evidence of rehabilitation of his moral character and good reputation.

The Registrar of Contractors Substantive Policy Statement 100 (First Issued 05/06/2013; Last Revised 06/17/2013) states:

“The ROC also reviews and considers evidence of rehabilitation. Rehabilitation can be shown by counseling, gainful employment, passage of time without repeat violations, or completion of an appropriate rehabilitation program, etc. Applicants who still are on probation after a conviction, particularly a felony conviction, may experience more difficulty in demonstrating rehabilitation, due, in part, to the limited amount of time that has elapsed since the conviction.”

While Applicant Appellant provided testimony, Expert Witness testimony, court documents, and other evidence that goes to the weight of counseling, gainful employment, passage of time without repeat violations and completion of an appropriate rehabilitation program; this Tribunal finds that Applicant Appellant’s failed to demonstrate he is no longer required to abide by sexual offender restrictions. Specifically, the requirement that he register as a sex offender. This sexual offender restriction bears substantial difficulty that fails to overcome proof of rehabilitation.

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. Haynes credibly testified that he continues to be consistent in making positive changes to his life to regain what he has lost and continues to make improvements and has demonstrated personal growth by providing evidence of having his civil rights restored and having the lifetime probation terminated. These changes, while positive, do not change the fact that he must still continue to abide by sexual offender restrictions, and register himself as a sex offender.

“[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.” This tribunal finds after receiving testimony and evidence that grounds exist under A.R.S. §§ 32-1122(D) and 32-1154(A)(7) to deny The Countertop Center, LLC, Pending License No. 307761, based on the Applicant’s inability to show he is not required to abide by sexual offender restrictions.

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. Mr. Haynes continues to work toward improvements to achieving good character and reputation; however, this tribunal finds that Applicant Appellant is unable to prove rehabilitation as one cannot overlook the requirements of having to abide by sexual offender restrictions for behavior occurring as a Youthful Offender.

Applicant Appellant failed to meet its burden of proof that the persons on the pending license application are persons of good character and reputation.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar affirm the decision to deny The Countertop Center, LLC License Application for Pending License No. CR-307761-D.

Done this day, March 31, 2017.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors