FINACT2018A-04751-ROC.pdf

2018A-04751-ROC · Registrar of Contractors · 2019-01-22

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Arizona Registrar of Contractors, Case No. 2018-04751

Docket No. 2018A-04751-ROC v. Cazares Electric LLC, FINAL ADMINISTRATIVE DECISION AND ORDER APPLICANT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. REGISTRAR’S REJECTION In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby rejects it. WRITTEN JUSTIFICATION The Registrar denied Cazares Electric’s application for licensure because Mr. Cazares failed to establish good character and reputation as required by A.R.S. § 41-1122(C). ALJ Dec 1:24-26. The administrative law judge concluded that A.R.S. § 41-1093.04 is not the proper standard on which to determine a license denial based upon an application for licensure. ALJ Dec. 2:15-6. The administrative law judge further concluded that A.R.S. § 41-1093.04 is inapplicable because Mr. Cazares has not filed a petition as authorized under that statute. ALJ Dec. 7:20-21. But despite finding the Registrar applied the wrong legal standard to Mr. Cazares’s license application, the administrative law judge proceeded to apply the incorrect standard and recommended that the Registrar’s denial be rescinded, and that Cazares Electric LLC be granted a license. 1 After noting that the Registrar applied the wrong legal standard, the administrative law judge evaluated the license application under A.R.S. section 41-1093.04 for the sole purpose of creating “a complete record for the Registrar.” ALJ Dec. 7:26-28.

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 Given the administrative law judge’s findings and conclusions, the Registrar agrees with the

administrative law judge’s recommendation that the matter be reset for hearing to enable the appropriate

standard be applied to this appeal of the license denial. ALJ Dec. 8:19-22.

CONCLUSION AND ORDER

For the foregoing reasons, the Registrar rejects the Administrative Law Judge’s Decision and

Orders a rehearing of the appeal.

IT IS ORDERED resetting this appeal for hearing.

Dated January 18, 2019. Registrar of Contractors /s/ Joseph Citelli Joseph Citelli, Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail January 18, 2019 to: Applicant Cazares Electric LLC 8949 E Calle Kuehn Tucson, AZ 85715 AND copy electronically mailed this same date to: Respondent at email address on record with the Registrar Office of Administrative Hearings Thomas Shedden, Administrative Law Judge

Office of the Attorney General Thomas Raine, Assistant Attorney General Case No. 2018-04751 / mm

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 12/26/2018 LEGAL

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors, No. 2018A-04751-ROC

v. ADMINISTRATIVE LAW JUDGE DECISION Cazares Electric LLC, Applicant.

HEARING: December 5, 2018 APPEARANCES: Thomas Raine, Esq. for the Registrar of Contractors; Jaime Jose Cazares for Cazares Electric LLC ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On October 29, 2018, the Registrar of Contractors (“ROC”) issued a NOTICE OF HEARING setting the above-captioned matter for hearing on December 5, 2018 at the Office of Administrative Hearings in Phoenix, Arizona. 2. The Notice of Hearing shows that the matter was scheduled to consider Cazares Electric LLC’s appeal of ROC’s denial of Cazares Electric’s request for licensure. 3. Jaime Jose Cazares appeared and testified for Cazares Electric. ROC presented the testimony of Brian Kirby its Chief of Licensing. 4. Cazares Electric submitted its application for licensure on or about August 20, 2018. Through a LICENSE DENIAL NOTICE issued on September 7, 2018, ROC informed Cazares that its application had been denied. 5. ROC denied Cazares Electric’s application because Mr. Cazares failed to establish good character and reputation as required by ARIZ. REV. STAT. section 32- 1122(C) because he has felony convictions in violation of section 32-1154(A)(7). 6. At issue are four felonies committed by Mr. Cazares. 7. At the hearing, Mr. Kirby explained that ROC’s biggest concern regarding Mr. Cazares is that two of his crimes involved violence with a gun and were disputes over money. In contracting, disputes may arise regarding workmanship, money and

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 12/26/2018 LEGAL

change orders, so ROC considers Mr. Cazares’s convictions to be related to contracting. 8. Mr. Cazares acknowledged his convictions and testified as to his changed

nature.

9. At the hearing, ROC took the position that based on ARIZ. REV. STAT.

section 41-1093.04, it was required to show by clear and convincing evidence that Mr.

Cazares’s felony convictions are substantially related to the state’s interest in

protecting the public safety, and that by granting Mr. Cazares a license, it is more likely

that he will reoffend than if he does not receive the license.

10. Section 41-1093.04 applies to petitions to determine whether the applicant

is disqualified from licensure based on felony convictions (or other conditions that are

not at issue in this matter). There is no evidence showing that Mr. Cazares filed any

such petition, and any appeal from the agency’s denial of such a petition is heard in the

superior court, not at the Office of Administrative Hearings.

11. Consequently, the ALJ concludes that section 41-1093.04 is not the

proper standard on which to proceed in this matter.

Pima County Case CR2010-000252 12. On or about March 23, 2010, Mr. Cazares pleaded guilty to Aggravated Assault with a Deadly Weapon, a class 3 felony. 13. On or about May 11, 2010, Mr. Cazares was sentenced to 3.5 years in prison. 14. On November 12, 2015, Mr. Cazares was released from prison on parole. 15. Mr. Cazares was discharged from parole on or about April 11, 2016. 16. Through an Order dated October 15, 2018, the Pima County Superior Court granted Mr. Cazares’s PETITION TO RESTORE CIVIL RIGHTS, with the exception of the right to possess or carry a gun or firearm. In that same order, the Court denied Mr. Cazares’s PETITION to set aside his judgment of guilt. 17. The PRESENTENCE REPORT in case CR2010-000252 shows that Mr. Cazares went to his former girlfriend’s house and demanded money from her. While RECEIVED 12/26/2018 LEGAL

doing so, he pointed a gun at her and threatened to kill her; he then told her that she had two days to get the money. He also made threats to kill her family members. 18. The victim/ex-girlfriend told police that Mr. Cazares had left cocaine at her

house and must have thought that she sold it. Mr. Cazares told the police that it was

money, not drugs he left at her house.

19. Mr. Kirby acknowledged that statements (from both victim and defendant)

in presentencing reports may be inaccurate; when evaluating applications, ROC

considers those reports in context of all the information it has.

Pima County Case CR2010-000229

20. On or about March 23, 2010, Mr. Cazares pleaded guilty to Possession of

a Deadly Weapon by a Prohibited Person, a class 4 felony.

21. On or about May 11, 2010, Mr. Cazares was sentenced to 2.5 years in

prison, which he completed on September 5, 2012. After Mr. Cazares’s prison term for

this offense was completed, he remained incarcerated to serve time for his conviction in

case CR2010-000252.

22. Through an Order dated October 15, 2018, the Pima County Superior

Court granted Mr. Cazares’s PETITION TO RESTORE CIVIL RIGHTS, with the exception of the right to possess or carry a gun or firearm. In that same Order, the Court denied Mr. Cazares’s PETITION to set aside his judgment of guilt. 23. The PRESENTENCE REPORT in case CR2010-000229 shows that after a fight at a strip club, Mr. Cazares retrieved a gun and fired several shots at a group of males. He then fled the scene, leading police on a high-speed chase. Cochise County Case CR2004-000049 24. On or about November 4, 2005, Mr. Cazares pleaded guilty to Attempt to Commit DUI, a class 5 felony. 25. On or about December 16, 2005, Mr. Cazares was sentenced to three years of probation. 26. Mr. Cazares violated his probation and was subsequently incarcerated for 1.5 years. Pima County Case CR2000-001260 RECEIVED 12/26/2018 LEGAL

27. On or about June 13, 2000, Mr. Cazares pleaded guilty to Robbery, a class 4 felony. 28. On or about August 29, 2000, Mr. Cazares was sentenced to 4 years of

probation.

29. Mr. Cazares violated his probation and he was subsequently incarcerated

for 1.5 years.

30. Through a Minute Entry dated October 3, 2018, Pima County Superior

Court granted Mr. Cazares’s MOTION FOR RESTORATION OF CIVIL RIGHTS AND SET ASIDE

JUDGMENT OF GUILT.

31. Because the judgment of guilt has been set aside, ROC’s position is that

this conviction may not be the basis on which Cazares Electric’s application can be

denied.

32. The PRESENTENCE REPORT in case CR2000-001260 shows that Mr.

Cazares pointed a gun at the victim and told the victim he had five seconds to give Mr.

Cazares his gold. After the victim did so, Mr. Cazares told the victim he had five

seconds to run.

Mr. Kirby’s testimony 33. When an applicant has felony convictions, ROC’s Good Character Committee will review the application and consider not only the crimes, but also the applicant’s current circumstances and any character evidence that he might present. 34. That an applicant’s civil rights have been restored is looked upon with favor, but it is not dispositive; ROC considers all the information it has in making its determinations of character. 35. ROC’s biggest concern regarding Mr. Cazares is that two of his crimes involved violence with a gun and were disputes over money. ROC considers Mr. Cazares’s convictions to be related to contracting because in contracting, disputes over workmanship, money and change orders occur. 36. Mr. Kirby testified to the effect that Mr. Cazares has shown a pattern of using threats of violence and guns to solve disputes, and that Mr. Cazares fled from the police showed a disregard for the police. RECEIVED 12/26/2018 LEGAL

37. ROC acknowledges that Mr. Cazares has been law abiding since he was released from prison, but considering the seriousness of Mr. Cazares’s crimes, that there was a pattern of violence and gun use, that his convictions have not all been set

aside, and the amount of time since Mr. Cazares was released from prison, ROC found

that it is more likely that he will reoffend if granted a license than he would be if the

application is denied.

Mr. Cazares’s testimony

38. Mr. Cazares acknowledged his convictions, but testified that he has

changed. He sought to prove this by showing his success and the success of Cazares

Electric, with his belief being that this success would not have been possible if he had

not changed.

39. Mr. Cazares testified as to his faith and he credited his faith for his

success.

40. Mr. Cazares testified to the effect that he understood that he was tasked

with trying to defend a terrible past, and that in doing so it was not his intent to justify

his actions, but only to give perspective.

41. Mr. Cazares has a “blended” family of five children. 42. Mr. Cazares explained that his changed nature is a result of seeing that children do not listen to what you say, but rather they watch what you do. He wants his kids to see a different example or result than he previously provided. He explained that he wants to achieve a level of success that will pass down to his children and grandchildren. He also explained that while in prison he was spending twenty-three hours a day alone in a cell which has an impact on a person. 43. Drinking and drugs played a part in Mr. Cazares’s past and he was homeless for a while at age twelve. He testified that criminal behavior was what he knew at that time. 44. Mr. Cazares noted that he was only eighteen in 2000 when he was convicted for robbery and that his last crime occurred in 2009. He has been out of prison for prison for three or four years without incident, whereas in his old life he might reoffend within three or four months. RECEIVED 12/26/2018 LEGAL

45. Mr. Cazares has a goal of helping convicted felons and those like himself who grew up in less than ideal circumstances. Without a license, Cazares Electric is limited in the projects it can take on, and he believes a contractor’s license will help

provide a platform to allow him to achieve his goal.

46. Mr. Cazares is purchasing a building, which was in escrow as of the

hearing date. As part of his efforts to help felons, he was considering opening a barber

shop in the building.

47. Cazares Electric is a sponsor of his daughter’s softball team, which is

something that would have been “crazy” for Mr. Cazares to consider five or ten years

ago.

48. Mr. Cazares received the PEP Microbusiness and Housing Development

Corporation (PMHDC) Rising Star award based on the economic impact Cazares

Electric has had with respect to job creation and retention.

49. Mr. Cazares had admitted into evidence nine letters of reference, three of

which were from small business owners, one by a realtor, one by PMHDC, and the

others by individuals including his cousin and his mother.

50. The letter from PMHDC spoke to the help Mr. Cazares has been providing to those who were finding themselves hopeless and as to his work mentoring felons. The other letters spoke to his work ethic, honesty and skill as an electrician. 51. ROC’s Character Committee had considered these letter during its evaluation of Cazares Electric’s application. CONCLUSIONS OF LAW 1. ROC denied Cazares Electric’s application because it found that Mr. Cazares failed to establish good character and reputation by virtue of his felony convictions. See ARIZ. REV. STAT. § 32-1122(C). 2. Relying on ARIZ. REV STAT. section 41-1093.04, ROC takes the position that it bears the burden of proof in this matter. More specifically, ROC’s position is that it must show that Mr. Cazares has been convicted of a felony offense that has not been expunged or set aside, and that the state has an important interest in protecting public safety that is superior to the person’s right, which requires ROC to show: RECEIVED 12/26/2018 LEGAL

[B]y clear and convincing evidence at the time of the petition, that both of the following apply: (a) The specific offense that the person was convicted of is substantially related to the state's interest. (b) The person, based on the nature of the specific offense that the person was convicted of and the person's current circumstances, is more likely to reoffend by virtue of having the license, permit, certificate or other state recognition than if the person did not have the license, permit, certificate or other state recognition. ARIZ. REV. STAT. § 41-0193.04(D)(2). 3. When construing statutes, the primary goal is to fulfil the intent of the legislature. If the language of the statue is clear, that language is determinative. Backus v. Arizona, 220 Ariz. 101, 203 P.3d 499 (2009). The tribunal may not read into statutes words the legislature did not include. See Home Builders of Central Arizona v. Scottsdale, 187 Ariz. 479, 930 P.2d 993 (1997). 4. By its clear terms, section 41-10193.04 applies to situations in which a person petitions an agency for a determination as to whether his criminal record will disqualify him from obtaining a license. If the agency finds that the petitioner’s record does disqualify him, the petitioner may remedy that disqualification by filing an appeal with the superior court as provided for in ARIZ. REV. STAT. Title 12, Ch. 7, Art. 6. ARIZ. REV. STAT. § 41-1093.04(A) and (F). 5. In this case, because Mr. Cazares has not filed a petition as authorized by section 41-1093.04, that statute is not applicable. Even if the statute was expanded to include applications for licensure, which would violate principles of statutory construction, the statute’s plain language would still necessitate that any appeal be heard by the superior court, not this tribunal. 6. Nevertheless, to create a complete record for the Registrar, the evidence that was presented is evaluated using the standard set out in ARIZ. REV STAT. section 41-1093.04.

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7. Clear and convincing evidence is “[e]vidence indicating that the thing to be proved is highly probable or reasonably certain.” Black’s Law Dictionary 674 (10th ed. 2014).

8. Mr. Cazares has been convicted of felonies for which the judgment has

not been set aside. ROC has shown by clear and convincing evidence that Mr.

Cazares’s felony offenses are substantially related to the state’s interest in protecting

the public.

9. ROC has not shown by clear and convincing evidence that it is more likely

Mr. Cazares will reoffend if he is granted a license. ROC’s evidence on this point is

limited to Mr. Kirby’s testimony that Mr. Cazares engaged in a pattern of severe

misconduct during disputes about money, and that contractors may have disputes over

workmanship, money and change orders. But ROC made no showing that these types

of issues will not arise in Cazares Electric’s current business practices, and Mr.

Cazares’s letters of reference show that in his current circumstances he is conducting

business in a professional manner and without incident.

10. Because ROC has failed to show by clear and convincing evidence that

Mr. Cazares is more likely to reoffend if granted a license than he would be without a license, Cazares Electric LLC’s application should be granted. 11. In the alternative, because ROC applied the wrong legal standard, it is recommended that this matter be reset for hearing at which time the appropriate standard can be applied, or that Mr. Cazares be provided the opportunity to file an appeal as provided for in Title 12, Ch. 7., Art. 6. RECOMMENDED ORDER IT IS RECOMMENDED that ROC’s NOTICE OF REINSTATEMENT DENIAL be rescinded and that Cazares Electric LLC be granted a license. 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, December 21, 2018. /s/ Thomas Shedden RECEIVED 12/26/2018 LEGAL

Thomas Shedden Administrative Law Judge Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors