ALJDEC decisions subject to certification as final

2017A-6135-LDA-ROC · Registrar of Contractors · 2018-02-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors,

IN THE MATTER OF THE

APPLICATION OF:

Hubbard Plumbing Services LLC,

PENDING LICENSE NO:

316632

No. 2017A-6135-LDA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 9, 2018.

APPEARANCES: John Lee Hubbard, Respondent; John Tellier, Esq. Arizona Asst. Attorney General, Attorney for the Registrar of Contractors; Brian Kirby, Chief of Licensing and Technology Services, Registrar of Contractors; Bonny Allen, witness for the Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

The parties presented evidence on whether license applicant Hubbard Plumbing Services LLC [Hubbard] 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 October 23, 2017, the ROC received an application for a CR 37 Dual Plumbing license from Hubbard Plumbing Services, LLC, an Arizona Limited Liability Company. Member, John Lee Hubbard, was listed as Qualifying Party on the application.

With the license application, Mr. Hubbard submitted a Criminal Records Disclosure form, which form asked Mr. Hubbard 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. Hubbard disclosed in his application and, in his testimony at the hearing, he admits he was convicted of the following nine felony offenses:

CR82-00225 – Possession of Drug Paraphernalia, initially an undesignated Class 6 Felony was, as a result of a probation violation finding, ordered designated as a Class 6 Felony [Exhibit C-16 – October 30, 2000 Disposition Hearing Order of Hon. Richard Anderson, Yavapai Superior Court].

CR1998-000359: On or about March 15, 1999, Mr. Hubbard plead guilty to Possession of Drug Paraphernalia, a class 6 felony.

On or about April 12:, 1999, Mr. Hubbard was sentenced to probation

On October 30, 2000, the Court found Mr. Hubbard had violated his probation and sentenced him to jail for 6 months.

No evidence that charges were set aside or that Mr. Hubbard’s rights were reinstated was presented.

CR2002-001602: On or about August 13, 2002, Mr. Hubbard was found guilty of if two counts of Aggravated DUI, class 4 felonies.

On or about August 13, 2002, Mr. Hubbard was sentenced to prison for 4.5 years.

On January 29, 2006, Mr. Hubbard was released from prison.

No evidence that charges were set aside or that Mr. Hubbard’s rights were reinstated was presented in evidence.

CR2008-000632: On or about February 18, 2009, Mr. Hubbard was found guilty of two counts of Misconduct with a 'Weapon During a Drug Offense, a class 4 felony; Resisting Arrest a class 6 felony; Possession of Marijuana, a class 6 felony; and Possession of Drug Paraphernalia, a class 6 felony;

On or about March 3, 2009, Mr. Hubbard was sentenced to 8 years prison.

On October 9, 2016, Mr. Hubbard was released from prison.

No evidence that charges were set aside or that Mr. Hubbard’s rights were reinstated was presented in evidence.

It was disclosed by cross-examination of Mr. Hubbard at the hearing that since his release from prison December 12, 2016 [Exhibit C-17], Mr. Hubbard continues to have encounters with law enforcement and criminal court criminal contact:

Mr. Hubbard testified he was arrested and charged with another DUI, this time in Jerome, Arizona. The newest DUI is pending in court with the next hearing scheduled for February 20, 2018.

Mr. Hubbard testified that since his release from prison in December, 2016, he was also charged with criminal damage in Cottonwood, Arizona. This Criminal Damage offense, he said, occurred at his residence. He testified that he has signed a plea agreement calling for a guilty plea with a $400.00 fine and no jail time or probation.

Mr. Hubbard testified that in prison he received drug, alcohol and job counseling.

In prison, but not since, Mr. Hubbard participated in an AA alcohol program. He testified his drug of choice is alcohol. He testified that trigger for his alcohol abuse is family conflict. He testified that his mother and nephew have resided with him in his residence since September, 2017 and that there is conflict in the home. He testified that since his release from prison in December 2016, he has not sought or obtained any counseling or other treatment for his addiction and alcohol abuse issues because he “did not have any issues.”

Mr. Hubbard testified that he is self-employed and that providing plumbing services is his only source of income. Mr. Hubbard stated that he is “trying to move forward with his life” and by making application for his contractor’s license he “is trying to do it the right way.”

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. Hubbard 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).

The Registrar denied Mr. Hubbard’ application for a contractor’s license because he had not demonstrated that he was a person of good character and because he had a felony conviction record. These two grounds are interrelated.

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.’”

Mr. Hubbard has been convicted of not one or two, but has been convicted of nine felonies - each for serious offenses. Two of these Felony offenses were initially sentenced as undesignated, meaning that if Mr. Hubbard abided by the terms of the probation that was granted to him [in lieu of imprisonment], at the end his probation term his charges would be designated as misdemeanors.

Mr. Hubbard was found, after hearing before a Superior Court, to have violated his probation for a DUI conviction that occurred while his driver’s license was suspended for a previous DUI. Subsequent DUI convictions ultimately lead to Felony additional DUI convictions, until finally, Mr. Hubbard was imprisoned for eight years for conduct which involved convictions for two counts of Misconduct with a 'Weapon During a Drug Offense, Resisting Arrest, Possession of Marijuana and Possession of Drug Paraphernalia.

Even after suffering 12 and one half years in prison for repeated drug and alcohol crimes, the incarceration and counseling that Mr. Hubbard has received has had no appreciable impact on him since he has again, recently, been arrested for and charged with another DUI and has been arrested and charged with yet another offense involving disruptive or violent conduct [criminal damage].

These prior felony offense convictions cannot be considered to be mere mistakes or aberrations in Mr. Hubbard’s life. To the contrary, by a preponderance of the evidence, the prior felony convictions and the post-prison release charges for a DUI and Criminal Damage [on two separate, unrelated occasions] demonstrate a clear pattern of dangerous, repeated drug and alcohol related crimes. Yet, Mr. Hubbard continues to claim, in his testimony at hearing since his release from prison in December 2016, he has not sought or obtained any counseling or other treatment for his issues because he “did not have any issues.”

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 evidence demonstrates by a preponderance that Mr. Hubbard has had and still does have a reputation for alcohol abuse.

The evidence demonstrates by a preponderance that Mr. Hubbard has a reputation for refusing to comply with lawful orders of a court demonstrated by Mr. Hubbard’s October 30, 2000 probation violations.

The evidence demonstrates by a preponderance that Mr. Hubbard has and still does have reputation for refusing to comply with lawful orders of a court as is demonstrated by Mr. Hubbard’s multiple DUI convictions which occurred while his driver’s license was suspended or revoked for prior DUIs and his most recent pending DUI charge.

Inasmuch as Mr. Hubbard denies he is a person in need of treatment or counseling for his alcohol abuse, has not sought nor has he participated in any counseling or treatment since his release from prison in 2016, but has again been arrested and charged recently for a DUI and criminal damage, the evidence demonstrates by a preponderance that Mr. Hubbard has had and still does have a reputation for being unable or unwilling to conform his behavior to the requirements of the law.

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.

In this case, a conviction of nine serious prior felonies requires at least some showing, by a preponderance, to demonstrate the applicant’s good character and reputation. No such showing was presented in this evidence. Mr. Hubbard has not established by a preponderance of the evidence that his life is quite different than it was since 1999, the date of the offenses giving rise to the earliest of his convictions.

Moreover, in light of the evidence that the applicant appears to continue his string of DUIs based on his last arrest - while continuing at his hearing to deny he has need or desire for continued treatment or counseling - demonstrates, by a preponderance of the evidence, that Mr. Hubbard is not rehabilitated.

Mr. Hubbard has failed to meet his burden of proof in this case that he is a person of good reputation and good reputation.

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. Hubbard.

In accordance with A.R.S. §31-1122, Mr. Hubbard may re-apply for a license one year after the date of the Registrar’s decision in this matter.

RECOMMENDED ORDER

IT IS RECOMMENDED that the denial of the application of Hubbard Plumbing Services, LLC for a CR 37 Dual Plumbing contractor’s license 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 is forty days after the date of that certification.

Done this day, February 19, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Hubbard Plumbing Services LLC

989 S Main St Ste A147

Cottonwood, AZ 86326-4601

[email redacted]

Respondent

Jeffrey Fleetham, Director

Registrar of Contractors

c/o Thomas Raine, Esq.

Asst. Attorney General

[email redacted]

Attorney for the ROC