ALJDEC decisions subject to certification as final

2017A-4193-LDA-ROC · Registrar of Contractors · 2017-10-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE APPLICATION OF:

B-1 Construction LLC,

Pending License No: 314689

No. 2017A-4193-LDA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 11, 2017

APPEARANCES: Robert John Stroh appeared on behalf of B-1 Construction LLC. Assistant Attorney General Thomas Raine appeared on behalf of the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

FINDINGS OF FACT

On or about June 28, 2017, Applicant B-1 Construction, LLC, (hereinafter, “B-1 Construction”), submitted a license application to the Registrar of Contractors, (hereinafter “Registrar”).

Robert John Stroh (hereinafter “Mr. Stroh”), was named as the Qualifying Party on Pending License Application No. 314689 for B-1 Construction.

On or about October 13, 2005, Mr. Stroh plead guilty to Gross Sexual Imposition, a class A felony, Sexual Contact in Motor Vehicle, a class B felony and Sexual Contact at Residence, a class B felony. Mr. Stroh was sentenced to 10 years in prison with all but three years and nine months suspended and five years’ probation. He was also ordered to register as a sex offender until the year 2023.

Mr. Stroh is a registered sex offender.

Mr. Stroh’s rights have not been restored.

On or about August 14, 2017, Bonny Allan, of the Registrar’s Legal Department, notified B-1 Construction 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 August 14, 2017 Notice of License Denial provides, in relevant part, as follows:

[T]he Registrar finds that due to Mr. Stroh’s prior felony conviction[s], he has failed to establish good character and reputation. As a result of Mr. Stroh’s felony conviction[s], the Registrar has determined that [B-1 Construction] does not qualify for a contractor license

. . .

The Registrar finds that Mr. Stroh has failed to establish he has a minimum of four years of practical or management trade experience.

B-1 Construction 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.

At hearing, the Registrar indicated that the sole issue was whether Mr. Stroh’s sexual misconduct felonies prevented him from establishing good character and reputation. The Registrar agreed that documents submitted by Mr. Stroh after the Notice of License Denial was issued appeared to show that he had the requisite experience needed for a contractors’ license.

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 B-1 Construction’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 Gross Sexual Imposition, a class A felony, Sexual Contact in Motor Vehicle, a class B felony and Sexual Contact at Residence, a class B felony. Mr. Stroh was sentenced to three years and nine months in prison and five years’ probation. He was also ordered to register as a sex offender until the year 2023.

According to the court documents, Mr. Stroh touched his fiancé’s 11 year old daughter’s breasts and vaginal area with while he was driving and at home, and attempted to penetrate her private parts, achieving penetration with his fingers. This conduct occurred over a three-month period from September 4 to December 10, 2004 with Mr. Stroh threatening to take away the child’s puppy if she told anyone about what transpired between them.

Mr. Kirby testified that the Good Character Committee did not deny Mr. Stroh’s application based upon his felony convictions 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 13 years have passed, the Registrar is yet concerned that Mr. Stroh could potentially go into someone’s home to do work which places the individual in jeopardy. Mr. Kirby testified that the he had reviewed several letters submitted by people who believe that Mr. Stroh is honest and was a good contractor in North Dakota. See Exhibit A. However, Mr. Kirby testified that the letters did not specify that the letter writer knew of Mr. Stroh’s crimes and did not overcome the weight of the underlying crimes of sexual abuse of a vulnerable victim who should have been able to trust him. Mr. Kirby said that the fact that Mr. Stroh was still required to register as a sex offender pointed to the seriousness of his crimes.

Mr. Stroh testified that he was released from probation and had rehabilitated himself by taking sex offender classes both in prison and after. He viewed his crimes as an aberration caused by stress and pointed to his years of honorable military service before the crimes. Mr. Stroh stated he had been licensed as a contractor in North Dakota for six years until March 2017 and only gave up that license because his wife, the mother of his 11-year-old victim, wanted to move to a warmer client. Mr. Stroh mentioned that in the last six years he had been in hundreds of homes with children without incident. He noted that he had tried to make amends with his victim by helping her financially. He said she was doing well and had two small children of her own. Mr. Stroh said he had spent thousands of dollars taking the steps needed for licensure in Arizona and said he should be given a chance because there was nothing more he could do to rehabilitate himself.

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. Stroh’s good character and reputation as required by A.R.S. § 32-1122(D) in that he was convicted of Gross Sexual Imposition, a class A felony, Sexual Contact in Motor Vehicle, a class B felony and Sexual Contact at Residence, a class B felony in violation of A.R.S. § 32-1154(A)(7). In addition, Mr. Stroh 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. Stroh, 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. 314689.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the denial of B-1 Construction, LLC’s Pending License Application No. 314689 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, October 13, 2017.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors