ALJDEC decisions subject to certification as final

2017A-5635-LDA-ROC · Registrar of Contractors · 2018-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE APPLICATION OF:

Soteria Protection Services, LLC ,

PENDING LICENSE NO: 315171

No. 2017A-5635-LDA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 5, 2018

APPEARANCES: Robin E. Lavalee appeared on behalf of Soteria Protection Services, LLC. Assistant Attorney General John Tellier appeared on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

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FINDINGS OF FACT

1. In or about March of 2015, Robin E. Lavalee (“Mr. Lavalee”) plead guilty to one count of Giving a False statement, a class 6 felony; and one count of Theft, a class 3 felony.

2. On or about May 13, 2015, Mr. Lavalee was sentenced to three years probation. Mr. Lavalee was also ordered to pay restitution in the amount of $8,819.11, payable at $95 per month beginning July 1, 2015. Mr. Lavalee was also ordered to pay a $65 monthly probation service fee beginning July 1, 2015. Furthermore, Mr. Lavalee was ordered to complete 80 hours of community service.

3. On or about July 28, 2017, Robin E. Lavalee (“Mr. Lavalee”) submitted an application for a contractor’s license on behalf of Soteria Protection Services, LLC (“Soteria) to the Registrar of Contractors (“Registrar”).

4. Mr. Lavalee was listed as the qualifying party for Soteria. Mr. Lavalee is the member manager of Soteria.

5. On or about November 7, 2017, the Registrar issued a Notice of License Denial (“License Denial”). The License Denial provides, in relevant part as follows:

III. GROUND FOR DENIAL

1. Mr. Lavalee Failed to Establish Good Character and Reputation Required by A.R.S. § 32-1122(C) because of a Felony Conviction Which Violates A.R.S. § 32-1154(A)(7).

The Registrar finds that due to Mr. Lavalee’s prior felony conviction, he has failed to establish good character and reputation. As a result of Mr. Lavalee’s felony conviction, the Registrar has determined that Applicant does not qualify for a contractor license.

IV. CONCLUSION

Applicant’s pending license application, is hereby DENIED because a person named on Application No. 315171:

1. Failed to establish the requisite good character and reputation due to a prior felony conviction.

6. Mr. Lavalee filed an appeal to the November 7, 2017 License Denial.

7. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

8. On November 15, 2017, the Registrar issued a Notice of Hearing to all parties regarding the License Denial.

9. A hearing was held on January 5, 2018. Mr. Lavalee testified on his own behalf and submitted exhibits A through C. The Department presented the testimony of its Staff Attorney, Bonny Allan, and submitted exhibits 1 through 9.

10. Mr. Lavalee testified that he applied for a contractor’s license because he wants to work as a city contractor. Mr. Lavalee Petitioner submitted letters written by several authors regarding his character. See Exhibit C. Mr. Lavalee testified that he completed 80 hours of community service and that he has paid almost all of his restitution.

11. Mr. Lavalee did not dispute that he was convicted of giving a false statement and theft. Mr. Lavalee testified that he submitted the false statement because the government bank levied his financial accounts for almost $100,000 for child support. Mr. Lavalee testified that when he had custody of his children, the government never enforced the child support order that he had against his children’s mother.

12. Mr. Lavalee testified that he exercised bad judgment with he committed the acts that led to his criminal convictions. Mr. Lavalee testified that he made a $4,000 payment to the Court the day before the hearing and is waiting on a statement of the amounts that have been paid from the Court. Mr. Lavalee also testified that he attempted to obtain documentation from the probation department regarding his community service.

13. The Registrar’s position is that Mr. Lavalee lacks good character due to his felony conviction. The Registrar argued that Mr. Lavalee provided no documentation to support his statements that his bank accounts were levied in the amount of approximately $100,000. The Registrar contended that Mr. Lavalee has provided no documentation to show that he paid his restitution in full and completed community service.

CONCLUSIONS OF LAW

1. Mr. Lavalee bears the burden to prove, by a preponderance of the evidence, that the Registrar improperly denied the Application. A.R.S. §41-1092.07(G) and A.A.C. R2-19-119.

2. A preponderance of the evidence is “[e]evidence which is of greater weight or more convincing than the 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 1182 (6th ed. 1990). “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).

3. Mr. Lavalee has not met the burden of proof.

4. A.R.S. §32-1122(C) provides that to obtain a contractor’s license a person shall be of good character and reputation and that a lack of good character and reputation may be established by a showing that the applicant has committed any act that is grounds for suspension or revocation of a license. A.R.S. §32-1154(A)(7) provides that a conviction for a felony is grounds for suspension or revocation of a contractor’s license. Consequently, Mr. Lavalee’s conviction provides grounds for the Registrar’s decision to deny the application.

5. The Department’s concern in this case is legitimate and well-founded.

A person with a criminal record must be given close scrutiny and careful consideration when he applies for a professional license. Mr. Lavalee committed serious crimes and has not been released from probation. Mr. Lavalee did not provide any documentation to show that he has paid his restitution in full or completed all of his hours of community service.

6. Although Mr. Lavalee offered several character letters, he did not provide any character witnesses. The letters are given little weight because the authors were not present to be questioned by the Department’s counsel or by the Administrative Law Judge and could not be observed by the Judge. Further, due to the content of the letters, the extent of information known by the authors concerning Mr. Lavalee could not be discerned nor could such information be explored because the authors did not testify at the hearing.

7. Mr. Lavalee failed to meet his burden of proof to establish that he has sufficient good character and reputation to satisfy the statutory requirement for licensure in this matter. Consequently, this Tribunal concludes that Petitioner’s application for licensure should be denied.

ORDER

IT IS ORDERED that Soteria Protection Services, LLC’s appeal is dismissed and the Registrar’s decision to deny Soteria Protection Services, LLC’s application for a contractor’s license is 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 40 days from the date of that certification.

Done this day, January 25, 2018.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors