ALJDEC decisions subject to certification as final
2017A-5590-LDA-ROC · Registrar of Contractors · 2018-04-06
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Registrar of Contractors,
v.
Pipe Connections LLC,
Pending License No. 316038,
RESPONDENT.
No. 2017A-5590-LDA-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 20, 2018
APPEARANCES: John Tellier, Esq., AZ. Asst Atty General, Attorney for the Arizona Registrar of Contractors [ROC]; Bonny Allan, ROC, Jaime Fimbres, Respondent; Jessica Escobedo, Respondent Witness; Jesse Cook; Respondent Witness; Justin Bellamy, Respondent Witness.
ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson
_____________________________________________________________________
The parties herein presented evidence on whether license applicant Pipe Connections LLC (hereinafter, (“Applicant”)] 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].
On or about September 25, 2017, Pipe Connections LLC, Applicant herein, submitted license application No. 316038 to the ROC.
Jaime Ernesto Fimbres (Mr. Fimbres) is named as the member and as the Qualifying Party in the Application.
With the license application, Mr. Fimbres submitted a Criminal Records Disclosure form, which form asked Mr. Fimbres 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. Fimbres disclosed in his application and, in his testimony at the hearing, he admits he was convicted of a felony in the following cases:
CR2002-080552. On or about May 27, 2003, Mr. Fimbres pleaded guilty to Attempted Sexual Conduct with a minor, a class 3 felony.
The Presentence Report established that the offense was against a minor and involved alcohol and sex.
On or about June 25, 2003, Mr. Fimbres was sentenced to 10 years of probation. Mr. Fimbres is required to register as a sex offender. On or about July 18, 2014, Mr. Fimbres was discharged from probation.
Notwithstanding the discharge of his probation and the reduction of the conviction to a misdemeanor in CR2003-037402, the ROC considered that the conviction offense in CR2002-080552 has a reasonable relationship to the functions for which the license is sought. Specifically, the Registrar evaluated the nature of the offenses in light of the risk posed to the public and determined that the risk to the public precludes licensure under A.R.S. 13-904(E).
As a result of Mr. Fimbres' felony conviction, on October 10, 2017, the ROC determined that Applicant did not qualify for a contractor license under A.R.S. § 32-1122(C) because of Felony Convictions [See also, A.R.S. § 32-1154(A) (7)].
Mr. Fimbres appealed the ROC’s license denial and on March 20, 2018, a hearing was conducted before the Office of Administrative Hearings to determine whether there is sufficient grounds to deny Mr. Fimbres’ application for licensure.
The offense to which Mr. Fimbres plead guilty to in CR2002-080552 was committed between February 1, 2001 and February 28, 2001, over seventeen years ago. [See, Exhibit C-5, page 116/131, Sentencing Order]. Although the offense he plead to was a Class Three Felony and a Dangerous Crime Against Children in the Second Degree, the Superior Court determined the matter was a non-dangerous and non-repetitive offense. The Court ordered Mr. Fimbres to register as a sex offender. [Ibid.] In his testimony, Mr. Fimbres confirmed that he is a currently registered sex offender.
Mr. Fimbres testified at his OAH hearing that he was 18 years old at the time of his offense. He is now 35 years old. He stated at age 18 he had attended a high school party at a private home where alcohol was present and was consumed. He met the victim in the CR2002-080552 case, a female 14 year old.
Mr. Fimbres testified that the victim told him she was 16 years old and he believed her. The couple engaged in sex at the party and at least two other times thereafter. The victim became pregnant through her encounters with Mr. Fimbres and gave birth to a daughter.
Mr. Fimbres testified that when he was very young and naïve he made a very poor choice, but believes that both Ms. Escobedo and he are very happy to have a beautiful daughter that born because of this. [See also, Exhibit R-A, Respondent Statement]
Jessica Escobedo, [a/k/a Jessica Saldana], Mr. Fimbres’ victim in CR2002-080552, appeared and testified at the hearing in this matter. By her testimony Ms. Escobedo confirmed that at age 14 she engaged in sex with Mr. Fimbres that resulted in her pregnancy. She confirmed that she told Mr. Fimbres that she was 16 and not 14 years old at the time of the offense. She indicated that Mr. Fimbres never forced himself upon her and there was no violence involved in their sexual or other encounters.
Ms. Escobedo testified that although the relationship between Mr. Fimbres and her was a bit strained during the time when the criminal court case was being processed, Mr. Fimbres and Ms. Escobedo have enjoyed a good relationship through the years co-parenting their daughter. She indicated that Mr. Fimbres has long ago admitted to fathering their child and that, although Mr. Fimbres is married to another, he remains fully engaged as a father to their child and provides child support. Ms. Escobedo believes Mr. Fimbres is not and has never been a danger to himself, to others or to this community. Ms. Escobedo requested that the ROC grant Mr. Fimbres’ license application.
Mr. Fimbres is a high school graduate. Since graduation from high school, Mr. Fimbres attended school in 2011 and 2012 to obtain a private pilot’s license. He obtained his private pilot’s license which is still valid. He has also obtained his City of Phoenix Journeyman’s plumber license. He has been gainfully employed in the plumbing industry since graduating from high school. He is the married father of four children, including the child between Ms. Escobedo and himself. He is employed currently as a superintendent by Whitton Plumbing and has over 17 years of plumbing experience. There is no record of encounters between Mr. Fimbres, law enforcement or the court system since March, 2004.
CONCLUSIONS OF LAW
The ROC has jurisdiction in this matter pursuant to A.R.S. § 32-1101 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, Mr. Fimbres 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).
“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).
A.R.S. § 32-1122 provides the qualifications 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 . . . .[emphasis added].
A.R.S. § 32-1154(A)(8) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license - 8. Conviction of a felony.”
Denial or revocation of a license based on past criminal history does not constitute additional punishment, 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 placing [the licensee] in double jeopardy . . . 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.’”
As set forth above, A.R.S.§32-1122(C), the ROC 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, especially 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, as well as with the relative time Mr. Fimbres was living as a criminal compared to his evidence of living a law-abiding lifestyle. It is the policy of the Registrar, as appropriate, to consider evidence when an applicant convicted of an offense whether the applicant has been rehabilitated.
The Arizona Supreme Court in a regulatory proceeding has held that “undesignated offenses are not felonies for disciplinary purposes unless and until a court designates them felonies.”
If A.R.S. § 32-1154(A)(8) is interpreted consistently with the criminal code and Supreme Court authority, Mr. Fimbres has never pled guilty to or been convicted of a felony in the March 10, 2004 Possession of Drug Paraphernalia Possession of Drug Paraphernalia case in CR2003-037402. Moreover, he was not required to disclose the undesignated offense to which he had pled guilty in CR2003-037402. Mr. Fimbres’ criminal conviction in CR2003-037402, by itself, is not grounds to deny his license application.
But Mr. Fimbres accepted the plea bargain in CR2002-080552 which required him, among other things, to register as a sex offender for the rest of his life. Mr. Fimbres did disclose his registered sex offender status to the Registrar on the license application.
Registered sex offender status, alone, does not limit where a person may live or the trade or profession he may pursue. As a result of a person’s sex offender status, a public record will be kept of his residence, but not of his employment.
It has been more than seventeen years since Mr. Fimbres has been in any kind of trouble with the law, including any improprieties with children. He has demonstrated strong support in the community for his continued rehabilitation.
Even without a contractor’s license, Mr. Fimbres lawfully may be employed by another contractor as a plumber at a school, residence, or other place where children are found. No law requires him to disclose his registered sex offender status to his employer. If Mr. Fimbres’ registered sex offender status presents any danger to children around his worksite, the Registrar can better protect the public by licensing him and making disclosure a condition of his license than by denying the license and allowing Mr. Fimbres to work, unregulated.
Although he committed a serious felony against a minor seventeen years ago resulting in a Court ordering him to register as a sex offender, by a preponderance of the evidence, Mr. Fimbres has shown sufficient good character and reputation to meet the requirement of A.R.S. § 32-1122 for the grant of his application for a contractor’s license. Among the factors considered and supporting good character and reputation in this case are:
Mr. Fimbres youth and limited experience at the time of the commission of the crime;
The offense did not involve the act of or threat of force or violence;
The offense was not accomplished by lying in wait, by deception or trickery by Mr. Fimbres;
The victim of Mr. Fimbres’ sexual assault admits she had lied to him about her age;
The victim of Mr. Fimbres’ crime agrees that mitigating the offense is the age and naiveté of the victim and Mr. Fimbres;
The victim believes Mr. Fimbres is no threat to himself, to her or to the community..
The victim has requested the ROC issue Mr. Fimbres’ license;
The offense occurred more than a decade and a half ago;
Evidence of rehabilitation of Mr. Fimbres:
Married with three children in the home;
Active history of participation in co-parenting his daughter with Ms. Escobedo, including child support;
Gainful employment since graduating from high school;
Schooling resulting in Mr. Fimbres obtaining his private pilot’s license;
Employed in a position of trust and rank as a superintendent of Whitton Plumbing;
Mr. Fimbres has obtained his City of Phoenix Journeyman’s plumber license;
Substance abuse and interpersonal therapy treatment programs successfully completed;
Reduction by the Court of Mr. Fimbres 2004 conviction of Possession of Drug Paraphernalia to a Class One Misdemeanor;
No evidence of re-offending.
By a preponderance of the evidence, Mr. Fimbres has established that, in the more than seventeen years that have passed since the presentence report was prepared in Case No. CR2002-080552, he has taken advantage of the probation supervision and treatment that was offered, initiated the changes that were needed in his life, and has become a productive member of the community. One of the last changes remaining to be made is to obtain a contractor’s license, and Mr. Fimbres is now attempting to complete that change. Overall, Mr. Fimbres has established, by a preponderance of the evidence, that he is a man of good character and reputation.
RECOMMENDED ORDER
Based on the foregoing,
IT IS RECOMMENDED that the Registrar uphold this appeal and grant the license application submitted by Pipe Connections LLC.
IT IS FURTHER RECOMMENDED that the license be subject to a probationary period of two years, commencing on the date of issuance.
IT IS FURTHER RECOMMENDED, in addition to any other terms of probation that the Registrar may impose, for the term of probation Mr. Fimbres be required to disclose his registered sex offender status to any property owner or other contractor to whom he submits bids or proposals or for whom he performs contracting work.
Done this day, April 2, 2018.
/s/ Randolph D. Wolfson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors