ALJDEC decisions subject to certification as final

2017A-6275-LDA-ROC · Registrar of Contractors · 2018-03-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE APPLICATION OF:

JB Restoration LLC ,

PENDING LICENSE NO: 316409

No. 2017A-6275-LDA-ROC [ROOT]

Consolidated: 2017A-6276-LDA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 16, 2018, at 9:00 a.m.

APPEARANCES: Jose Manuel Benavidez (“Mr. Benavidez” representative for JB Restoration LLC “Appellant’); Thomas Raine (“Mr. Raine” attorney for the Arizona Registrar of Contractors “Registrar”); Brian Kirby (“Mr. Kirby” witness for the Registrar); Bonny Allan (“Ms. Allan” witness for the Registrar); and Sherian Jenkins (“Ms. Jenkins” observer for the Registrar).

ADMINISTRATIVE LAW JUDGE: Linda Marie Brown

_____________________________________________________________________

JB Restoration LLC (“Applicant Appellant”) appeals from the Registrar’s denial of its license application no. 316409 and 316781 for a contractor’s license. The Registrar based its denial upon finding Applicant’s Qualifying Party failed to establish good character and reputation due to prior felony convictions. Applicant requested a hearing to appeal the denial.

At hearing, this tribunal took evidence and heard testimony from the applicant, witnesses and admitted as evidence Exhibits 1 through 6 received from the Registrar. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to affirm the Registrar’s denial of Applicant’s license application no. 316721 for the reasons set forth below.

FINDINGS OF FACT

Background and Procedure

On or about October 26, 2017, Jose Manuel Benavidez on behalf of JB Restorations LLC, filed an Application for a Class CR-34 Painting and CR-10 Drywall License with the Registrar. Applicant Appellant listed on its application Mr. Benavidez as the qualifying party for JB Restoration LLC.

In response to question 23 on the license application, “Have you ever been convicted of a felony, or currently have a felony charge pending? Applicant Appellant answered “yes” and disclosed the following: 2015, assault, Coconino Superior.

Applicant Appellant also submitted a second application on or about November 11, 2017, for a CR-10 Drywall contractor’s license. Applicant Appellant listed on its application Mr. Benavidez as the qualifying party for JB Restoration LLC.

In response to question 23 on the license application, “Have you ever been convicted of a felony, or currently have a felony charge pending? Applicant Appellant answered “yes” and disclosed the following: has been provided.

Because two (2) applications were submitted, Pending License Application Nos. 316409, and 316781, and two separate case matters assigned to the same parties for the same issue, Case No. 2017A-6276-LDA-ROC was consolidated with Case No. 2017A-6275-LDA-ROC [ROOT] on or about December 28, 2017.

The company name on the License Application listed, JB Restoration LLC, a Limited Liability Company in good standing with the Arizona Corporate Commission, File No. L22164329, as the business name Applicant Appellant will operate under should a license be granted.

On November 23. 2017 (Pending License No. 316409), and November 28, 2017, (Pending License No. 316781), Notice of License Denial letters (“Notice”) were issued to Applicant Appellant from the Registrar. The grounds for the denial was, “(1) Mr. Benavidez 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. § 31-1154(A)(7).”

The Notice stated, “consequently, you have the right to an administrative hearing and an informal settlement conference. A.R.S. §32-1122(D) “prohibits reapplying for a license within a year of the date of a denial.”

In summary of Applicant’s license denial, the Registrar found that due to the prior felony conviction, Mr. Benavidez failed to establish the requisite good character and reputation.

Applicant Appellant requested a hearing to appeal 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.

A Hearing was held on February 28, 2018. Applicant Appellant bears the burden of proof that it possesses the good character and reputation to qualify for both a Class CR10 Drywall and a CR34 Painting Contractor’s license.

Mr. Benavidez’s Criminal History

The 2015 Conviction

On or about June 2, 2015, a Complaint was filed in the Justice Court Coconino County, Arizona, Flagstaff Precinct, by the State of Arizona against Jose M. Benavidez (CR2015-0822FE) for a charge of Count 1 Aggravated Assault-DV.

On or about December 7, 2015, Mr. Benavidez pled guilty in the Superior Court of the State of Arizona, County of Coconino (Flagstaff Justice Court) (Justice Court No. CR2014-1516FE; Superior Court No. CR2015-00785) to a charge of Aggravated Assault-DV, a non-dangerous, non-repetitive, Class 3 felony, in violation of A.R.S. § 13-1204(A)(1) and (D), 13-701,13-703,13-712,13-801,13-804,13-901,13-902, 13-3601, committed on or about June 1, 2015.

At the plea hearing, Mr. Benavidez avowed that “he has no felony conviction, and that he was not on probation or parole at the time of the offense.”

Mr. Benavidez was sentenced on January 4, 2016, to four (4) years of intensive probation. Additional terms of the probation, among other things, included completion of 100 hours of community restitution, as approved by Adult Probation; completion of the Domestic Violence Impact Panel; comply with all conditions of intensive probation and probation for domestic violence. Sentencing Orders included restitution, supervision fee, protected address assessment, family offenses assessment, domestic violence shelter fund assessment, and additional assessments.

On or about April 26, 2016, the Arizona Superior Court, Coconino County entered an Order to Modify Terms of Intensive Probation (Level Change), to modifying supervision to Contact Level 4.

Applicant Appellant provided several character reference letters from long time family friends, co-workers, employees, and employers.

As of the date of this hearing, Mr. Benavidez is still on probation.

Hearing Evidence

Mr. Benavidez provided additional character reference letters to include a letter dated February 9, 2018, from Coconino Adult Probation verifying that Mr. Benavidez has attained excellent milestones and has been violation free over the past two (2) years of his sentenced probation. Adult Probation also noted that in 2016 Mr. Benavidez’s probation was modified from intensive to standard probation.

Mr. Raine stated that the Registrar must exercise extra caution when there are claims of violence. He stated in license application denials based on felony convictions, the Appellant has the burden to prove they have been rehabilitated. In this instance, Applicant Appellant is still on probation. Therefore, the Registrar seeks to have this Tribunal affirm the license denial

Brian Kirby (“Mr. Kirby”), Chief of Licensing at the Registrar’s office, credibly testified as to the Registrar’s involvement in the application process and the factors the Registrar considers. He testified that various factors are weighed in when presented with an license applicant with a prior felony conviction, such as whether the felony is a sex crime, violent offender, whether probation is successful, and further stated the Registrar then reviews as a committee, and discusses individually the license applicant to consider all of the factors.

Mr. Kirby testified that the department views sex crimes against vulnerable persons more closely in the application process because crimes involving violence and children create a greater risk to the public. In cases involving violence, consideration is given to vulnerable victims.

Mr. Kirby provided testimony as to the Registrar’s Exhibits and stated that character reference letters are reviewed and considered in the licensing application review process. In this instance, Frank Chensky, MA. LPC, letter written on behalf of the Applicant Appellant was dated December 29, 2015, and appeared to be written for purposes of the underlying offense. Mr. Kirby stated that while character reference letters are reviewed, they are not always sufficient given the severity and recentness of an offense. In this instance, Mr. Benavidez was sentenced in 2016 to four (4) years of probation, and he is still on probation until on or about January 2020, unless he is released early.

Bonny Allan (“Staff Attorney”) is a Staff Attorney in the Registrar’s Legal Department and performs felony review of applicants. Ms. Allan did not offer any testimony at this time.

Mr. Benavidez testified regarding current letters obtained attesting to his character. It was observed that Mr. Benavidez appeared remorseful for his offense at the hearing.

Mr. Raine concluded that the license denial should be affirmed. Applicant Appellant did not meet its burden in regards to proof of rehabilitation since Mr. Benavidez is still on probation. Applicant Appellant’s failed to meet its burden of proof, and the Registrar requests the application be denied.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction.

JB Restorations LLC, bears the burden of proof to establish that it meets statutory qualifications for a contractor’s license 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.”

A.R.S. § 32-1122(D) provides, in relevant part, as follows:

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 . . . .

A.R.S. 32-1122(D)(7) provides grounds for suspension or revocation of a contractor license, which states, “[c]onviction of a felony.” Mr. Benavidez disclosed on its contractor’s license applications that on or about 2015, he was convicted of assault.

Cause therefore does exist under A.R.S. §§ 32-1122(D) and 32-1154(A)(7) for the Registrar to deny JB Restoration LLC’s license application based on Mr. Benadivez prior felony conviction.

Applicant Appellant bears the burden of proof to show evidence of rehabilitation of his moral character and good reputation.

The Registrar of Contractors Substantive Policy Statement 100 (First Issued 05/06/2013; Last Revised 06/17/2013) states:

“The ROC also reviews and considers evidence of rehabilitation. Rehabilitation can be shown by counseling, gainful employment, passage of time without repeat violations, or completion of an appropriate rehabilitation program, etc. Applicants who still are on probation after a conviction, particularly a felony conviction, may experience more difficulty in demonstrating rehabilitation, due, in part, to the limited amount of time that has elapsed since the conviction.”

While Applicant Appellant provided testimony and other evidence that goes to the weight of counseling and good character reference letters, this Tribunal finds that given the recency of the offense and the fact that Mr. Benadivez is still on probation, Applicant Appellant’s failed to demonstrate finality of rehabilitation.

A contractor’s license is a privilege, not a right. Even though cause may exist statutorily to deny a license application, an applicant may establish that he is rehabilitated, that he has reestablished his good character, and that he no longer poses a threat to the public. Once good character is shown to be absent, however, it is not automatically regained by the mere passage of time and some positive and affirmative activities are required for a person to regain what was lost. The issue of what constitutes good character or a lack thereof is nebulous at best. Former United States Supreme Court Justice Frankfurter noted:

No doubt satisfaction of the requirement of moral character involves an exercise of delicate judgment on the part of those who reach a conclusion, having heard and seen the applicant . . . , a judgment of which it may be said as it was of "many honest and sensible judgments" in a different context that it expresses "an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions; impressions which may lie beneath consciousness without losing their worth." . . .

Mr. Benavidez credibly testified that he continues to be consistent in making positive changes to his life to regain what he has lost and demonstrated extreme remorse for his offense. He demonstrated personal growth by providing character references, including a letter from Adult Probation that he completed 130 hours of community service when he was only ordered to complete 100. These changes, while all positive, do not change the fact that Mr. Benavidez is still on probation.

“[T]he Registrar is charged with the overall responsibility of protecting the welfare of the public dealing with persons engaged in the building contracting vocations and afford the public protection against incompetent, inexperienced, unlawful and fraudulent acts of building contractors.” This tribunal finds after receiving testimony and evidence that grounds exist under A.R.S. §§ 32-1122(D) and 32-1154(A)(7) to deny JB Restoration LLC, Pending License No. 316781, based on the Applicant’s inability to show he has successfully completed probation.

Applicant Appellant failed to meet its burden of proof that the persons on the pending license application are persons of good character and reputation.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the Registrar affirm the decision to deny JB Restoration LLC License Application for Pending License Nos. 316049 and 316781.

Done this day, March 8, 2018.

/s/ Linda Marie Brown

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors