ALJDEC decisions subject to certification as final

2017A-5378-LDA-ROC · Registrar of Contractors · 2018-02-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE APPLICATION OF:

5 Star All Scape Designs LLC ,

PENDING LICENSE NO: 315804

No. 2017A-5378-LDA-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: February 9, 2018

APPEARANCES: Complainant was represented by John Tellier, Esq., Arizona

Asst. Attorney General. Mr. Brian Kirby, Chief Of Licensing, ROC; The Respondent was represented by Mark A. Hanson, Esq., Eric Gomez, applicant and intended Qualifying Party, Laura Guerrero, witness and Veronica Walsh, psychologist.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

The parties presented evidence on whether license applicant 5 Star All Scape Designs LLC [Gomez] has demonstrated the good character and reputation required to be licensed by the Registrar as a contractor in Arizona. Based on the entire record and applicable law, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to the Registrar of Contractors [ROC].

FINDINGS OF FACT

On or about September 11, 2017, the ROC received an application for a renewal of a CR21 | Dual | LLC license from 5 Star All Scape Designs, LLC [hereinafter “5 Star”]. Member, Eric Gomez, [hereinafter “Gomez”] was listed as Qualifying Party on the application.

5 Star previously held a CR21 | Dual | LLC license, but the license was suspended for non-renewal on September 1, 2013. [Exhibit R-12].

With the license application, Mr. Gomez submitted a Criminal Records Disclosure form, which form asked Mr. Gomez to:

List all felony convictions, and start with the most recent and work backwards. Use additional sheets if necessary. A conviction will not automatically prevent you from obtaining your contractor’s license, but failure to disclose a conviction can result in denial of the license or revocation of the license after issuance.

Mr. Gomez disclosed in his renewal application, and in his testimony at the hearing he admitted, he pled guilty and was convicted of two counts of attempted unlawful sexual conduct with a person in custody as Class 6 undesignated felonies in Maricopa County Superior Court case number CR2011-007823.

At the February 9, 2018 hearing [the “OAH Hearing”], Mr. Brian Kirby, Chief Of Licensing for the ROC testified that on or about September 27, 2017, the ROC provided notice to Mr. Gomez and 5 Star that the license renewal application had been denied for the reason that “Mr. Gomez failed to establish good character and reputation required by A.R.S. §32-1112(d) because of a felony conviction which violates A.R.S. §32-1154(A)(7).” [Exhibit R-6].

Mr. Gomez timely requested review of the license denial determination and it is the ROC license denial that is the subject matter of this proceeding.

The Pre-Sentence Investigation report [hereinafter the “PSI”] was filed in the Superior Court prior to Mr. Gomez’ sentencing in CR2011-007823. The PSI, admitted into evidence at the OAH Hearing as Exhibit C-6, was prepared by the Maricopa County Superior Court Adult Probation Department’s Chief Probation Officer Barbara A. Broderick. A portion of the PSI reports:

On April 19, 2011, the Arizona State Prison Complex, Perryville, Criminal Investigations Unit received information of an allegation of sexual assault on Inmate [the inmate victim] by [Mr. Gomez], a Goodyear employee "'Work Crew Supervisor. [The Inmate victim] was forced into having sex with [Mr. Gomez] on multiple occasions beginning around January 2011 with the last incident occurring on April 18, 2011. On the evening of" April 19, 2011, Correctional Sergeant Nelson observed [the victim inmate] crying and she provided the Sergeant the information of having been sexually assaulted on the morning of April 18, 2011by [Mr. Gomez]. [The] Inmate [victim] was transported to the prison complex medical center where she was examined by Forensic Nurse Examiner Stephanie Pope, RN, who collected buccal swabs from her vagina and anal areas.

During an initial interview, [the] Inmate [victim] stated that she began working -with Mr. Gomez]’s crew in January of 201l when [another] Inmate ...told her that [Mr. Gomez] wanted to take a picture of her topless. She was convinced to comply as they would receive treats and that it was not a big deal. [Mr. Gomez] took pictures with his personal cell phone of her bare breast and one of her bent of a seat with her pants pulled down.

A couple of weeks later, [the] Inmate Victim was in the back of the van getting some water when the defendant came over the seats from the front bench; he bent her over the seat and pulled her trousers down and entered her vaginally. He pulled out his penis from her vagina and ejaculated on the seat and told her to clean the seat with toilet paper. Also, [Mr. Gomez] told her not to tell anyone or she would be in big trouble. He informed her that he had been investigated before on sexual misconduct charges and had beaten it.

The second sexual encounter happened when [the victim] was in the Port-a-Potty. The defendant came in and pulled her pants down and placed his penis into her anus and ejaculated. .... On April 18, 2011, [Mr. Gomez] elicited the assistance of Inmate Angela Keesler to stand watch while the [victim inmate] was sexually assaulted. The defendant put his hands on the [victim inmate’s] shoulders and guided her to her knees and pulled her head forward. She was instructed to give him oral sex.... After he had an erection, [Mr. Gomez] then pulled her trousers down and bent her over, entered her vaginally from the rear then removed his penis from her vagina and inserted it into her anus and ejaculated inside her....

[In her victim statement, the victim said Mr. Gomez] physically attacked her and had anal sex with her. He threatened her if she fought, she would be charged with assault and if she ran, she would be charged with escape. The defendant used his position for his own benefit which is an abuse of power. He violated her in the most horrible manner possible and she has been in counseling since reporting the incident to the authorities. To this day, [the victim] is traumatized from the whole ordeal....

On September 12, 2011, the report from the Arizona Department of Public Safety Crime Laboratory was received with their analysis of a known DNA sample from [Mr. Gomez] having been compared with DNA evidence collected from [victim] Inmate. The findings were positive in identifying [Mr. Gomez] as the person whose Spermatozoa / DNA was deposited into the anal canal of [the] Inmate [victim]. The defendant was arrested and released on bond.

At the OAH Hearing conducted by the Office of Administrative Hearings on the 5 Star license application denial, Mr. Gomez repeatedly asserted under oath [and his attorney argued] that he was not guilty of the crimes he plead guilty to in CR2011-007823. Mr. Gomez claimed at his OAH Hearing that the truth of the matter was, instead, that he had been set up by his victim in such a way that the facts were made to appear that he had sexually violated the inmate victim under threat.

Mr. Gomez testified that at the time of the acts for which he was indicted, he had been self-medicating with an oral, non-prescription, over-the-counter substance to remedy erectile dysfunction [ED] he suffered as a result of pain medication he was taking for back pain,

Mr. Gomez testified that the victim in this case became aware, when he was on the job site with his prisoners, that he was having erections [as a response to his over-the-counter medication]. How or why it is that the victim inmate became aware of Mr. Gomez’s peculiar difficulty is unknown. This hearsay evidence concerning the state of mind of the victim inmate is uncorroborated.

Mr. Gomez further testified that when he was experiencing these erections, he entered the portable restroom on the jobsite and masturbated - leaving his semen in the portable restroom’s urinal. Mr. Gomez testified that the victim had then entered the portable restroom after him, took the semen from the urinal and physically inserted Mr. Gomez’ semen, by herself, into her anus and vagina. In this way, Mr. Gomez explained, the victim inmate was able to provide evidence for Forensic Nurse Examiner Stephanie Pope, RN, who collected buccal swabs from the victim inmate’s vagina and anal areas, which buccal swabs’ analysis produced a match for the sperm of Mr. Gomez.

Mr. Gomez stated at his OAH Hearing that even though he knew himself to be completely innocent of his charges, he entered his plea of guilty anyway rather than proceed to trial because his criminal defense attorney frightened him into believing that he had no other hope at trial on the State’s evidence than being found guilty and being sentenced to prison.

He admitted at his OAH hearing that he lied to the Superior Court at his guilty plea hearing about his criminal conduct. He testified he lied to the Court, because he wanted to accept the plea agreement as offered since he was in fear of going to prison on these kind of charges. At the OAH hearing he stated that when asked by the Superior Court whether any inaccuracies in the PSI needed to discussed, he knew even though detailed description of the investigation and victim impact statements in the PSI were false, he lied and told the court no changes needed to be made because he was afraid of going to prison and he wanted his plea to be accepted. At the OAH hearing he stated He testified that he did not seek post-conviction relief from the court and did not seek appeal.

The documents presented and the testimony provided by Mr. Gomez established that the plea in this case was not a plea pursuant to Alford and that for all intents and purposes Mr. Gomez knowingly, willfully and intentionally admitted each element of his offense including all of the facts underlying the allegations charged.

On his guilty plea to two counts of attempted sexual conduct with a person in custody as undesignated Class 6 Felonies, Mr. Gomez was sentenced to ten (10) years supervised probation [in lieu of incarceration] with special conditions that included sex offender counseling.

When subjected to cross-examination, Mr. Gomez’ explanation about what happened between the victim and himself, Mr. Gomez said he was unable to testify in any detail because he had blocked out a lot of the information that he has read on the PSI report.

Mr. Gomez admitted that failed to report incidences he said were related to his crime - such as failing to report sexual advances from the victim inmate to anyone and that he failed to deny or report that he had sexual intercourse with the victim. He stated that such failures to report were personal mistakes that he now regrets. Mr. Gomez testified that he has no explanation for how his sperm was located inside the victim inmate’s body.

Mr. Gomez testified that the victim inmate eventually filed suit against his employer, the City of Goodyear, based upon Mr. Gomez’ criminal conduct. He stated that the attorneys for the City took a number of depositions [none of which were offered in evidence at the OAH Hearing] which showed the victim witnesses’ time-line of events to be unreliable and that because of the efforts that the City’s attorneys put forth, the case was settled. A sum was paid to the victim inmate, but Mr. Gomez refused to discuss anything about the settlement because he said the settlement required he never be able to discuss its terms or conditions.

At the OAH hearing, Mr. Gomez, testified that he did previously admit having sex with the inmate victim, but said he now regrets doing so because he now denies any sex occurred with the victim inmate.

Mr. Gomez, testified that he also admitted to his probation officer that he did engage in sex with the victim inmate, but he only did so out of fear. He said that he feared if he did not admit the facts underlying his sexual offense that the probation officer would have him “violated” [meaning that his probation would be revoked causing him to serve prison time].

Mr. Gomez called Veronica Walsh as a fact witness and as an expert in field of psychology. Ms. Walsh testified that she was a contract provider to the Maricopa County Superior Court Probation Department and was the counselor to Mr. Gomez in both group sex offender counseling and in at least an estimated 400 one-to-one counseling sessions during Mr. Gomez’ probation period. There was no curriculum vitae offered for Ms. Walsh. However, Ms. Walsh offered testimony that she held a Bachelor of Science degree in psychology, a Master of Science degree in addiction counseling and is currently pursuing a PhD in counseling. She stated that she held a certificate for forensic science, but was not able to provide detail of the coursework other than it was a correspondence course issued by Ashford University. The Administrative Law Judge allowed the witness to provide expert testimony about psychology and counseling.

Ms. Walsh testified that as a result the outcome of various standardized psychological testing instruments used with Mr. Gomez, it was her professional opinion that he was a non-offender, meaning that although the commission of the crime was not ruled out, all indicators pointed to Mr. Gomez not being an appropriate candidate for sexual offender treatment.

Ms. Walsh characterized Mr. Gomez’ case as “incredibly unique” to her because the patient scored as a non-offender. She testified that she has never before or since seen a convicted sexual criminal with such test results. She said she was surprised with the uniqueness of the case. It is not clear from the evidence when Mr. Gomez began denying his guilt to Ms. Walsh, but she testified that Mr. Gomez “...eventually said he plead guilty because his family and he were be threatened by [the victim inmate] and he was in fear.”

Ms. Walsh testified that she worked closely with Adult Probation in this case and got Mr. Gomez to admit that he did commit the offense. She testified that Mr. Gomez initially admitted to having sex with his victim. But after he was polygraphed, the results convinced Ms. Walsh that he did not use force with the victim. After the polygraph, he denied any sex with this victim. She stated that Mr. Gomez was “remorseful for what happened, but was not remorseful for [the victim] because there was nothing to be remorseful for.”

She indicated that Mr. Gomez did attend group sessions for sexual offenders for awhile, but she “pulled him out of group because I believed him to be a “non-offender....since all testing came back that he was not an appropriate candidate for sex offender treatment.”

Ms. Walsh opined, based on her numerous counseling sessions with him, that Mr. Gomez was a concrete thinker [which was never defined at the OAH hearing] and that he was open to change. She indicated that her therapy worked thorough childhood traumas, boundaries, and assertiveness over aggressiveness, life skills, and relationship counselling and communication skills. Mr. Gomez struggles with boundaries and with not being assertive enough to enforce his boundaries. Finally, Ms. Walsh opined that early on in this criminal case Mr. Gomez “...lied when he was fearful, but now he is more assertive and able to stand up.”

A little over half way through his 10 year probation sentence, on October 31, 2016, Mr. Gomez petitioned, pro per, to be discharged from probation and to have his undesignated offenses designated as Class 1 misdemeanors. [Exhibit R-2].

On July 21, 2017, the Maricopa County Superior Court found that “the interests of justice are met and Eric N. Gomez’s conduct while on probation does warrant termination.” The Court issued its Order terminating probation effective July 12, 2017 and designated Count 1 and Count 6 as misdemeanors. [Exhibit R-5].

Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on February 26, 2018. Such prior License record reflects that Respondent’s previous license was first issued on August 25, 2011 and suspended for non-renewal on September 1, 2013. There are no complaints or discipline noted during the Respondent’s previous period of licensure.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq and. A.R.S. § 41-1092.03 et seq.

At a hearing on an agency's denial of a license or permit or a denial of an application or request for modification of a license or permit, the applicant has the burden of persuasion.

Thus, in this administrative proceeding, the Respondent bears the burden of proof 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.” morris k. udall, arizona law of evidence § 5 (1960).

A preponderance of the evidence is:

“evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” black’s law dictionary at page 1064 (6th ed. 1990).

A.R.S. § 32-1122 defines the Arizona Legislature’s requirements to qualify for a contractor’s license:

[E]ach 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 . . . .

and, moreover, A.R.S. § 32-1154(A)(8) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[c]onviction of a felony.”

“In applying a statute . . . words are to be given their ordinary meaning, unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.” Mid Kansas Federal Sav. and Loan Ass’n v. Dynamic Dev. Corp., 167 Ariz. 122, 128, 804 P.2d 1310, 1316 (1991). “A cardinal rule of statutory interpretation is to give full effect to each statutory word or phrase so that no part is rendered void, superfluous, contradictory or insignificant.” Westburne Supply, Inc. v. Diversified Design and Construction, Inc., 170 Ariz. 598, 600, 826 P.2d 1224, 1226 (Ct. App. 1992).

Mr. Gomez was convicted on his plea of guilty to two Class 6 undesignated felonies. That Mr. Gomez was able to convince the criminal court to designate his felony offenses as misdemeanors in October of 2017 does not negate the fact that Mr. Gomez plead guilty to two undesignated Class 6 felonies. That Mr. Gomez has been convicted of two felony offenses is, in and of itself, sufficient grounds to deny the license application in this matter based on lack of good character and reputation. The ROC is not required to consider [although it may] whether rehabilitation, a term undefined by rule or statute, will fulfill the statutory requirement that Mr. Gomez prove good character and reputation in order to qualify for a contractor’s license.

The legislature’s use of term “may” in A.R.S. § 32-1122 indicates the legislature’s intention that the stated list of consideration to establish good character and reputation is permissive and not mandatory. Stated differently, the list of elements which may be used to establish good character and reputation is not restricted to the statutory elements listed, but may include other evidence to establish character and reputation as well.

Counsel for the Respondent argues that the ROC’s Substantive Policy Statement 100 is controlling and requires that proof of an applicant’s rehabilitation after conviction of two felonies overcomes the negative impact on the character and reputation of Mr. Gomez’ such that the ROC should issue Mr. Gomez a contractor’s license.

§41-1001(22} statutorily defines the meaning of the term "Substantive policy statement". It

“...means a written expression which informs the general public of an agency's current approach to, or opinion of, the requirements of the federal or state constitution, federal or state statute, administrative rule or regulation, or final judgment of a court of competent jurisdiction, including, where appropriate, the agency's current practice, procedure or method of action based upon that approach or opinion. A substantive policy statement is advisory only. A substantive policy statement does not include internal procedural documents which only affect the internal procedures of the agency and does not impose additional requirements or penalties on regulated parties, confidential information or rules made in accordance with this chapter.” [Emphasis added].

ROC’s Substantive Policy Statement 100 in this case is not controlling. As directed by the Arizona Legislature in §41-1001(22}, the Substantive Policy Statement 100 is advisory only.

Respondent’s counsel argues that early termination of Mr. Gomez’ probation required the Superior Court in his criminal case to have found that Mr. Gomez had been rehabilitated. Therefore it follows, it is argued, the fact that Mr. Gomez was convicted of two sexual offenses committed against a female that was being held in custody as a prisoner that was under his supervision and control - which crimes were committed on separate occasions - ought to be completely discounted because Mr. Gomez’ has been found by a criminal court to have been rehabilitated.

Respondent cites support for its contention that Mr. Gomez’ Superior Court’s Order terminating his criminal court probation necessarily resulted in a finding of rehabilitation. Respondent cases are not on point. Each case cited is a discussion of law related to criminal probation. All of the cases cited are distinguishable on the facts since all of the cases cited involve matters arising in a criminal law context alone. The public policy considerations, applicable statutory and case law discussion in Respondent’s cited cases pertain to law, facts and policy considerations which are different from those which the ROC is required to consider and weigh. Analysis of appellate court rulings regarding whether the denial or revocation of a license based on past criminal history raises double jeopardy concerns is instructive. The findings of a Superior Court in terminating probation involve different statutory and policy considerations. Even if the denial or revocation is based on the same misconduct that caused the license applicant or licensee to be punished by a term of imprisonment in the criminal justice system.

The licensing proceeding “‘is not a second criminal proceeding. . . . Rather, the purpose is to maintain sound professional standards of conduct for the purpose of protecting the public and the standing of the . . . profession in the eyes of the public.’” [Such] actions are not punishment; rather, “‘the primary purpose of [the] proceeding is the ascertainment of moral fitness and professional competency . . ., and a determination of whether it is necessary for the protection of the public interest that the [license application] be [denied] . . . . These are public interests not addressed by the underlying criminal proceeding’” [emphasis added].

To the extent that Mr. Gomez’ asserted rehabilitation may be relevant in weighing whether or not he presents a threat to the community, presents a threat to re-offend or mitigates the impact of the proven fact his convictions play in granting or deny him a contractor’s license, the findings or orders of the Superior Court in his criminal case regarding whether or not that court determined Mr. Gomez to have been rehabilitated are instructive - but not binding - on this tribunal or the ROC because the public interests of the ROC are not addressed by the underlying criminal proceeding. [Ibid].

The Respondent tendered five letters purporting to support Mr. Gomez’ contention that he is a person of good character and reputation. Other than a letter written from Ms. Walsh, his psychologist/counselor, each of the letters provide the writers’ observations and opinions of Mr. Gomez’s character and reputation as it pertains to his skill and ability to perform the work covered by the license he is applying for. None of the letters refer to or mention knowledge about the central crux of the character and reputation issue presented in this case - Mr. Gomez’s convictions for unlawful sexual contact with a person in custody, Thus, these letters of recommendation, although supportive, are not relevant to prove whether Mr. Gomez is a person of good reputation and character.

Mr. Gomez’s testimony, in general, lacks credibility. At his OAH Hearing Mr. Gomez admitted:

He lied to the Superior Court at his guilty plea proceeding to induce the court to accept his guilty plea;

Either he lied to his probation officers and to Ms. Walsh when he admitted to them that he did have sex with the inmate victim, or,

As Ms. Walsh testified, later he lied to Ms. Walsh when he said he did not have sex with the inmate victim after his polygraph results indicated the he did not use force to rape his inmate victim – both a and b cannot be true statements.

Not only do a, b and c above demonstrate Mr. Gomez’ reputation and character for untruthfulness, statements b and c are inconsistent statements.

Mr. Gomez’ additional inconsistent statements further impeach his credibility.

Mr. Gomez testified under oath at the OAH Hearing that the reason he plead guilty to felony charges under the plea agreement – even though he was innocent, was his fear of going to prison if he pressed the matter to trial. He was afraid of being imprisoned with convicts while having been convicted of a sex offense against an inmate under this supervision, control and custody.

He testified at his OAH Hearing as an alternate or additional reason he entered pleas of guilty to these offenses is that his criminal defense attorney convinced him that a jury would convict him based on his theory of defense that the victim gathered his sperm from ejaculate he left in the portable restroom and that the victim set him up by pushing his collected sperm into her body to make it seem that he had intercourse with the victim when he really did not.

Instead, he told Ms. Walsh that the reason he entered his guilty plea was because the victim had threatened his family and he and was afraid for their safety. No mention was made to Ms. Walsh that his attorney overpowered his will through a fear of conviction and prison.

Perhaps all or none of these statements are true. Unfortunately, since Mr. Gomez has demonstrated by his testimony and admissions that he has a reputation for being untruthful [see paragraph 11 hereinabove], his inconsistent statements add more fuel to the fire of the impeachment of Mr. Gomez in this case.

The bulk of Mr. Gomez’ testimony is uncorroborated by non-interested witnesses. Mr. Gomez has been impeached and his testimony regarding his character and reputation is weighed accordingly.

The testimony provided by Veronica Walsh, Respondent’s expert, must be weighed in this case against her demonstrated advocacy on behalf of Mr. Gomez. The gist of Ms. Walsh’s opinions rendered in this case is that she is convinced that Mr. Gomez’ criminal problems were really no problem at all. She opines that Mr. Gomez lies when he is afraid and that Mr. Gomez’ plea of guilty to two sex offenses was motivated out of fear. But, because he now denies the conduct for which he was charged and admitted to by his guilty plea, Mr. Gomez, she said, was “remorseful for what happened, but was not remorseful for [the victim] because there was nothing to be remorseful for.”

By all appearances, Ms. Walsh was charmed by this patient. Initially she pulled him out of group sex offender sessions because he measured as a non-offender when tested with objective psychological instruments. She admits the term non-offender means the patient was not a candidate for sex offender treatments modalities, but she agrees the tests do not prove or disprove whether the patient actually committed the crime. However, at the OAH Hearing, Ms. Walsh testified that she is of the opinion and belief that Mr. Gomez did not commit the crimes he was found guilty of and that he was a low-risk for re-offending. When pressed for objective evidence to support her contention that Mr. Gomez was at a low risk to re-offend she could provide none. When pressed for objective evidence that Mr. Gomez was not a sex offender, she could provide none. These opinions of Mr. Gomez’ currently are based solely upon the counseling sessions she did with Mr. Gomez, Ms. Walsh’s subjective professional opinions and nothing else.

By proof by a preponderance of evidence, on or about May 23, 2012 Mr. Gomez plead guilty and was convicted in CR2011-007823 to two counts of Unlawful Sexual Conduct with a Person in Custody as two Class 6 undesignated Felonies.

On or about June 29, 20l2, Mr. Gomez was sentenced 10 years supervised probation with special terms of probation to include sex offender treatment.

On or about July 21, 2017, Mr. Gomez was discharged from probation and his undesignated Class 6 felonies were reduced to misdemeanors by the criminal court.

As set forth above, A.R.S. §32-1122(C), the Registrar is required to ascertain that a license applicant is of “good character and reputation” before it issues a license to an applicant. “Reputation” is “the estimation in which a person or thing is held, esp. by the community or the public generally . . . .” “Reputation . . . is the word which refers to the position one occupies or the standing that he has in the opinion of others, in respect to attainments, integrity, and the like . . . . Character is the combination of moral and other traits which makes one the kind of person he actually is (as contrasted with what others think of him) . . . .” Id. at 1218-19.

The time that the Registrar may require a license applicant to have lived a blameless life to establish rehabilitation is commensurate with the seriousness and number of past convictions. The more serious the misconduct, the stronger an applicant’s showing of rehabilitation ought to be and must be. When applicants have committed serious misconduct, they must convince the Registrar [and hence, this Administrative Law Judge] that they are no longer the same person who behaved poorly. In such cases, positive inferences about their character are more difficult for the fact-finder to draw and negative inferences are stronger and often more reasonable. Here, the Respondent’s testimony of character and reputation carries little, if any weight, because he has also demonstrated a reputation and character for being untruthful and deceitful.

The argument of Respondent’s counsel that the ROC ought to follow lock-step with the criminal court’s discharge of probation order fails to take into account that the determination of the criminal court fall short of determining the public policy duty of the ROC to protect an unsuspecting public from persons convicted of serious sexual offenses. The purpose of the licensing statute “is to maintain sound professional standards of conduct for the purpose of protecting the public and the standing of the . . . profession in the eyes of the public; [the] ascertainment of moral fitness and professional competency . . ., and [to make] a determination of whether it is necessary for the protection of the public interest that the [license application] be [denied]. Once the ROC has placed its seal of approval on an applicant, the public has a right to rely on the judgement of the ROC that a company has passed a rigorous background investigation and that no purchaser from a State approved contractor need be concerned about being left alone at their residence or business with persons known to be admitted sex offenders. Yes, the convictions in this case seem to place a “Scarlet Letter” around Mr. Gomez’ neck to give warning to all that the wearer has a history of moral and criminal behavior. Here, the difference is that with a scarlet letter at least the unsuspecting pubic is put on notice that would lead a reasonable person to inquire further. But, if a license were granted to Mr. Gomez, he would be given an open door to have access to any unsuspecting citizen who desires his contracting services. Since a contractor has no legal duty to disclose to prospective customers that he has a prior sexual offense history, Arizona citizens would not be on notice that they may have to take precautions about hiring Mr. Gomez.

Thus, there is a rational connection between denying Mr. Gomez a contractor’s license and protecting the public health, safety and welfare.

The Respondent has failed to carry his burden of proof, by a preponderance of the evidence, that he is a person of good reputation and character.

The Registrar did not abuse the discretion that the legislature granted in A.R.S. §31-1122 et seq. in denying a contractor’s license to Mr. Gomez.

RECOMMENDED ORDER

IT IS RECOMMENDED that the denial of the application for a renewal of a CR21 | Dual | LLC contractor’s license from 5 Star All Scape Designs, LLC and its Qualifying Member, Eric Gomez be confirmed as a proper exercise of the Registrar’s statutory duty and discretion.

FURTHER IT IS RECOMMENDED dismissing the Respondent’s appeal.

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 40 days from the date of that certification.

Done this day, February 27, 2018

Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors