ALJDEC decisions subject to certification as final

2017A-1733-LDA-ROC · Registrar of Contractors · 2017-06-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE APPLICATION OF:

Elite General Contracting LLC ,

PENDING LICENSE NO: 311512

No. 2017A-1733-LDA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 17, 2017

APPEARANCES: Craig Peters appeared on behalf of Elite General Contracting LLC. Assistant Attorney General Thomas Raine appeared on behalf of the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On or about January 27, 2017, Applicant Elite General Contracting, LLC, (hereinafter, “Elite General”), submitted a license application to the Registrar of Contractors, (hereinafter “Registrar”).

Craig Frederick Peters, (hereinafter “Mr. Peters”), was named as the Qualifying Party on Pending License Application No. 311512 for Elite General.

On or about August 28, 1997, Mr. Peters plead guilty to Attempted Sexual Abuse, a class 4 felony. Mr. Peters was sentenced to lifetime probation.

On January 20, 2009, the court granted Mr. Peters release from probation.

Mr. Peters is a registered sex offender.

Mr. Peters rights have been restored.

On or about February 27, 2017, Bonny Allan, of the Registrar’s Licensing Department, notified Elite General that the Registrar had determined to deny its license application under A.R.S. § 32-1101 and summarized the facts that supported the denial under the statute. Ms. Allan’s February 27, 2017 letter provides, in relevant part, as follows:

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

Elite General 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

Brian Kirby, (hereinafter “Mr. Kirby”), testified that he is the Chief of Licensing for the Registrar of Contractors. Mr. Kirby testified that he was familiar with Elite General’s application for licensing. Mr. Kirby stated that the application was referred to the Good Character Committee.

Based on the information received by the Good Character Committee, Mr. Peters pled guilty to Attempted Sexual Abuse, a class 4 felony, committed on December 7, 1996. The court ordered 12 months of confinement and lifetime probation upon release.

According to the court documents, Mr. Peters touched his 14 year old daughter’s breasts while he was driving. Mr. Peters was forty-three years old at the time.

Mr. Kirby testified that the Good Character Committee did not deny Mr. Peter’s application based upon his felony conviction alone. Mr. Kirby testified that the Good Character Committee considers the nature of the crime, how recent the crime occurred, whether the conviction was set aside and whether rights were restored when determining whether a license application should be approved. Mr. Kirby testified that although 20 years have passed, the Registrar is yet concerned that Mr. Peters could potentially go into someone’s home to do work which places the individual in jeopardy. Mr. Kirby testified that the Good Character Committee reviewed several letters submitted by people who believe that Mr. Peters is honest. However, Mr. Kirby testified that the letters did not overcome the weight of the underlying crime of attempted sexual abuse.

Mr. Peters testified that he was released from probation based upon his merit. Mr. Peters stated that it is difficult to be released from probation on one’s own merit. Mr. Peters stated that he has a business as a manufacturer. However, he testified that he would like to keep his current license because he employed several people. He testified that he has been through therapy and counsels other sex offenders. Mr. Peters testified that years ago he lacked the ability to empathize. Mr. Peters stated that now he knows how to empathize with others. Mr. Peters testified that his probation was extended after he voluntarily informed authorities that he went to a family member’s wedding where a child was present. Mr. Peters testified that he has been sober from alcohol for 25 years and sober from drugs for 28 years.

Respondent’s counsel contended in its closing argument that although Mr. Peters has had his rights restored, the Registrar has the authority to deny his license pursuant to Arizona Revised Statutes Section 13-904(E), because the nature of the underlying crime is connected to his job duties.

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. Peters’s good character and reputation as required by A.R.S. § 32-1122(D) in that he was convicted of the class 4 felony of Attempted of Sexual Abuse of a Child, in violation of A.R.S. § 32-1154(A)(7). In addition, Mr. Peters is a registered sex offender and may be required to go into the home where a child is present.

This supports the Registrar’s determination that Mr. Peters, 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. 311512.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the denial of Elite General, LLC’s Pending License Application No. 311512 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 forty days from the date of that certification.

Done this day, June 6, 2017

Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors