ALJDEC decisions subject to certification as final

2017A-5172-LDA-ROC · Registrar of Contractors · 2018-04-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE APPLICATION OF:

Synthetic Grass Masters LLC,

PENDING LICENSE NO: 316037

No. 2017A-5172-LDA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 29, 2018

APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine. Applicant Synthetic Grass Masters LLC was represented by Frederick Thomas.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

On or about September 25, 2017, Applicant Synthetic Grass Masters LLC (Applicant) submitted a license application (pending License Application No. 316037) to the Registrar of Contractors (Registrar).

Sina Ehteshami was named as the member and qualifying party on pending License Application No. 316037 for Applicant.

Applicant answered “Yes” as to Mr. Ehteshami 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. Ehteshami had been convicted of a felony on January 12, 2006, for Aggravated Assault in Superior Court.

On or about October 10, 2017, 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(C) and A.R.S. § 32-1154(A)(7), and summarizing the facts that supported the denial under each statute. Ms. Allan’s October 10, 2017 letter concluded as follows:

[T]he Registrar finds that due to Mr. Ehteshami’s prior felony convictions, he has failed to establish good character and reputation. Notwithstanding the discharge of probation and the reduction of the conviction to a misdemeanor, the Registrar considers the offense has a reasonable relationship to the functions for which the license is sought. Specifically, the Registrar has evaluated the nature of the offense and the risk posed to the public to conclude that licensing Mr. Ehteshami would be imprudent under A.R.S. 13-904(E). As a result of Mr. Ehteshami’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

Brian Kirby testified that he was familiar with Applicant’s application for licensing. Mr. Kirby 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. Ehteshami pled guilty to Aggravated Assault, a class 6 undesignated offense, committed between November 8, 2004, and November 9, 2004. The court sentenced Mr. Ehteshami to serve three years of probation, to undergo a psychosexual assessment if directed by APO, successfully complete sex offender treatment if recommended by treatment professional, and undergo HIV testing within 30 days. Mr. Ehteshami was not required to register as a sex offender.

On or about January 12, 2009, Mr. Ehteshami was discharged from probation and the charge was reduced to a misdemeanor.

According to the court documents, Mr. Ehteshami engaged in sexual intercourse and/or oral sexual contact with a 15 year old minor when Mr. Ehteshami was 22 years old. As detailed in the presentence investigation report, Mr. Ehteshami met the victim at his place of business, a cellular phone office. A few days later, the victim returned to Mr. Ehteshami’s place of business needing transportation. Mr. Ehteshami reported that he repeatedly offered to drive the victim home or to a friend’s house, but the victim expressed a desire to remain with Mr. Ehteshami. Mr. Ehteshami stated that he believed the victim to be 18 years old and indicated that the victim discussed her drug and alcohol use and late night “partying”. Mr. Ehteshami admitted that he exercised poor judgment when he purchased alcohol for someone he believed to be only 18 years old. Mr. Ehteshami acknowledged that he rented a hotel room and he and the victim engaged in consensual sexual relations. Mr. Ehteshami denied knowing the victim was 15 years old until her mother contacted him regarding his conduct and stated he was “devastated” to find out her true age. Mr. Ehteshami accepted responsibility for his actions. The Order of Discharge from Probation provided that Mr. Ehteshami was

nearing completion of the probation grant in the aforementioned case. While on probation, [Mr. Ehteshami] successfully completed the following special conditions: Undergo HIV testing within 30 days of sentencing and allow APO authority to release results to victim, Participate in psychosexual assessment if directed by APO and successfully complete sex offender treatment if recommended by treatment professional. Currently [Mr. Ehteshami] is participating in sex offender treatment per a screening by this officer and recommendation from a treatment professional.

Mr. Kirby testified that the Good Character Committee determined that Mr. Ehteshami’s conviction for aggravated assault 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. Mr. Kirby also indicated that the Registrar had concerns that Mr. Ehteshami met the victim at his place of business and involved alcohol being given to a minor. Mr. Kirby stated that Mr. Ehteshami was unable to present evidence that he had successfully completed the sex offender treatment referenced in the Order of Discharge from Probation. Mr. Kirby testified that the Good Character Committee considers an applicant’s history of counselling and treatment, the passage of time, and an applicant’s conduct since the time of the conviction.

Mr. Ehteshami testified that the conduct occurred in 2005 and more than 12 years had passed since the incident and he had a clean record since. Mr. Ehteshami stated that he attempted to obtain treatment records detailing his psychosexual evaluation and group therapy sessions he attended while on probation, but the entities that had those records had destroyed the records after a certain number of years had passed. Mr. Ehteshami expressed his great regret for the events that occurred and acknowledged his role. Mr. Ehteshami stated that he had been working in synthetic grass and HVAC businesses prior to joining Applicant and seeking a license. Mr. Ehteshami indicated he had been in people’s homes for the last 13 years without any incident.

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:

C. 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 fails to support the conclusion that Applicant failed to establish Mr. Ehteshami’s good character and reputation as required by A.R.S. § 32-1122(C). While he was convicted of the class 6 undesignated offense of Aggravated Assault, Mr. Ehteshami demonstrated that he had undergone a psychosexual evaluation, attended sexual offender group therapy treatment, and had no further law enforcement interactions in the more than 12 years since the incident. It is noted that Mr. Ehteshami was unable to provide documentation regarding the psychosexual evaluation and sexual offender group therapy treatment through no fault of his own.

The totality of the circumstances does not support the Registrar’s determination that Mr. Ehteshami, as a Qualifying Party for Applicant, lacks good character and reputation necessary for licensure as required by A.R.S. § 32-1122(C).

The evidence of record does not support 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 reversed.

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, April 18, 2018

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors