ALJDEC decisions subject to certification as final
2019A-05785-LDA-ROC · Registrar of Contractors · 2020-09-15
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Arizona Registrar of Contractors,
DBA:
COMPLAINANT
v.
MBK Builders LLC,
License Application: [number redacted],
RESPONDENT
No. 2019A-05785-LDA-ROC
ADMINISTRATIVE LAW JUDGE
DECISION
HEARING: August 26, 2020, 1:00 P.M.
APPEARANCES: Arizona Registrar of Contractors was represented by Assistant Attorney General John Tellier; James Hanson, Esq., appeared on behalf of Respondent
ADMINISTRATIVE LAW JUDGE: Roger A. Geddes
_____________________________________________________________________
1. On September 13, 2019, MBK Builders, LLC, submitted a License Application (Application) with the Registrar for a C-14 contractor’s license. (Registrar’s Exhibit 2).
2. On October 14, 2019, the Registrar issued a Notice of License Denial. (Registrar’s Exhibit 1).
3. The reasons for denial stated by the Registrar in the Notice of License Denial was that Respondent failed to establish the requisite good character and reputation of its member and qualifying party, Michael Begoody, due to prior felony convictions relating to sex offenses with a female under the age of 15, and that Mr. Begoody presented an unreasonable risk to public safety and welfare.
4. According to a Presentence Report, dated July 16, 2001, in Cause No. CR-2001-176 of the Superior Court of Arizona in and for the County of Coconino, Mr. Begoody pled guilty to a charge of Sexual Abuse, a Class 3 felony, and Attempted Molestation of a Child, a Class 3 felony. (Register’s Exhibit 6).
5. According to a Minute Entry, dated August 1, 2001, in Cause No. CR-2001-176 of the Superior Court of Arizona in and for the County of Coconino, Mr. Begoody entered into a plea agreement pleading guilty to one count of Sexual Abuse, a class 3 non-dangerous and non-repetitive offense, in violation of A.R.S. §§ 13-1404, 13-1401, 13-3821, 31-281, 13-701, 13-702, and 13-801 committed on or about December 15, 1999, through January 15, 2000, and one count of Attempted Molestation of a Child, a class 3 non-dangerous and non-repetitive offense, in violation of A.R.S. §§ 13-1410, 13-1401, 13-3821, 31-281, 13-1001, 13-701, 13-702, and 13-801 committed on or about December 15, 1999, through January 15, 2000. Mr. Begoody was sentenced to be imprisoned in the Arizona Department of Corrections for the mitigated term of two and one-half years and, among other things, was placed on Lifetime Intensive Probation to commence upon his release. Mr Begoody was also to register as a sex offender pursuant to A.R.S § 13-3821. (Registrar’s Exhibit 5).
6. On February 4, 2005, upon Petition for Modification of Mr. Begoody’s Probation Officer, the Superior Court of Arizona in and for the County of Coconino reduced Mr. Begoody’s probation from Lifetime Intensive Probation to Standard Probation. (Registrar’s Exhibit 9).
7. On June 3, 2014, the Superior Court of Arizona in and for the County of Coconino granted Mr. Begoody’s Motion to Terminate Probation, which did not include termination of the obligation to register as a sex offender. (Registrar’s Exhibit 10).
8. On February 24, 2020, the Superior Court of Arizona in and for the County of Coconino granted Mr. Begoody’s Application to Restore his Civil Rights, with the exception of rights regarding the possession and carrying of a firearm, which was not request by Mr. Begoody. (Respondent’s Exhibit 17).
9. Respondent submitted a timely Request for Administrative Hearing. A hearing was held on August 26, 2020, at 1:00 P.M. The Registrar presented the testimony of Robert Stirling, Assistant Chief Counsel of the Registrar. Respondent presented the testimony of Michael Begoody, member and qualifying party, and David Hayward. The Tribunal received and admitted the Registrar’s exhibit numbers 1 - 11 and Respondent’s exhibit numbers 1 - 34.
10. Robert Stirling testified on behalf of the Registrar that he reviews contractor license applications and that this Application involving a felony-related conviction which he submitted to a Good Character Committee of the Registrar’s office for decision. (Registrar’s Exhibit 11). He stated that a felony conviction in and of itself does not necessarily preclude the issuance of a contractor’s license or a finding of a lack of good character and reputation but that the circumstances underlying a felony conviction could conceivably support a finding of a lack of good character and reputation. He explained the Good Character Committee process and stated that the committee looks at the facts and circumstances regarding the character of an applicant to determine whether an applicant with a felony has been rehabilitated. He further stated that Respondent’s Application was denied due to the Respondent’s failure to establish good character and reputation of Mr. Begoody who had a felony conviction.
11. Michael Begoody testified on behalf of Respondent as to his convictions and matters over the past 20 years relating to those convictions. While the Registrar’s notice of denial (Registrar’s Exhibit 1) references his failure to set aside his convictions and his current inclusion in the sex offender registry, he testified he would have applied to get his conviction set aside but learned that he was ineligible due to the age of the victim. A.R.S §13-905(K)(4). He further testified that he would have applied to be removed from the sex offender registry but learned he was ineligible due to the age of the victim. A.R.S §13-3826(A)(2).
Mr. Begoody stated that has been employed since his incarceration in the framing industry and cable field. He further stated he participated in sex offender treatment up until 2013 and has always taken responsibility for his crimes.
12. David Hayward, a general contractor and real estate developer, testified on behalf of Respondent that Mr. Begoody has been employed by his company for three years. He testified he was aware of the general nature of Mr. Begoody’s conviction and that Mr. Begoody “without question” possessed good character. He further stated he would feel comfortable recommending Mr. Begoody for work.
CONCLUSIONS OF LAW
1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
2. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.
3. “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 “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.” BLACK’S LAW DICTIONARY at p. 1220 (8th ed. 1999).
4. The Tribunal finds that Respondent has met its burden in demonstrating good character and reputation on the part of Mr. Begoody. A.R.S. § 32-1122(C) provides that:
To obtain, renew or maintain a license under this chapter, each person named on the license must be of good character and reputation. Lack of good character and reputation may be established by showing that a person 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 or by showing that a person was named on the license was suspended or revoked in this state or another state.
A.R.S. § 32-1154(a) provides that “[t]he holder of a license or person named on a license under this chapter may not commit any of the following acts or omissions:...7. Conviction of a felony.
5. Whether an applicant for or those to be named on a license has demonstrated good character and reputation is within the discretion of the Registrar.
However, the Tribunal is not persuaded that the determination as to whether an applicant for or those to be named on a license are of good character and reputation ends upon a finding that any of such individuals has a felony conviction. A.R.S. § 32-1122(C) states that a lack of good character and reputation may be established by showing that a person committed any act that, if committed or done by any licensed contractor, would be grounds for suspension or revocation of a contractor’s license, namely conviction of a felony. While it is acknowledged that a felony may under some circumstances show a lack of good character and reputation, there was no authority presented to preclude an applicant from demonstrating good character and reputation in spite of or to negate a felony conviction.
6. The Tribunal has looked to A.R.S § 41-1093.04 for Legislative guidance regarding whether a “criminal record” disqualifies a person from obtaining a license. The Tribunal recognizes that A.R.S § 41-1093.04 applies to a petition process in which an applicant seeks a pre-application determination of qualification, which is not the case here. However, the Tribunal could find nothing to suggest that the standard for qualification, at least with respect to the effect of a criminal record, under the pre-application petition process should be any different than the effect of a criminal record on a regular license application process.
7. A.R.S § 41-1093.04 provides that:
D. Notwithstanding any other law or rule, the agency may determine that the person's criminal record disqualifies the person from obtaining a license, permit, certificate or other state recognition only if the agency concludes that the state has an important interest in protecting public safety that is superior to the person's right and either of the following applies:
...
2. The person was, at any time, convicted of either of the following:
...
(b) A dangerous offense as defined in section 13-105, a serious offense as defined in section 13-706, a dangerous crime against children as defined in section 13-705 or an offense included in title 13, chapter 14 or 35.1, and the conviction has not been set aside.
(emphasis added). The statute further provides that:
E. To conclude that the state has an important interest in protecting public safety that is superior to the person's right, as required by subsection D of this section, the agency must determine by clear and convincing evidence at the time of the petition that both of the following apply:
1. The specific offense that the person was convicted of is substantially related to the state's interest.
2. 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.
8. Mr. Begoody has committed an offense included in Chapter 14, which satisfies the second prong for disqualification. However, in determining disqualification under this statute, the question remains regarding the first prong, namely, whether the state has an important interest in protecting public safety that is superior to the person's right.
9. To find the state’s interest is superior, the statute requires that the specific offense underlying conviction is substantially related to the state’s interest and that the convicted person is more likely to reoffend by virtue of having a license than not having a license. The Tribunal does find that the specific offense underlying conviction is substantially related to the state’s interest. However, the Tribunal does not find that Mr. Begoody is more likely to reoffend if Respondent has a license than if Respondent did not have a license.
10. While one cannot minimize the seriousness of Mr. Begoody’s crimes, all evidence presented suggests that Mr. Begoody has been rehabilitated over the past 20 years or at least poses a low risk of reoffense. Mr. Begoody spent more than two years incarcerated due to his convictions and had his Lifetime Intensive Probation reduced to Standard Probation in 2005 and then had his probation terminated altogether in 2014. Further, in 2020 Mr. Begoody had his civil rights restored affording him the “right to hold public office of trust or profit.”
11. Perhaps if a license is granted, one could speculate that Mr. Begoody might have more direct contact with children than he does now. However, Mr. Begoody has been an employee for over ten years in the framing or construction field for which he seeks a license and over five years in the cable industry, and there was no evidence presented that Mr. Begoody would have any more exposure to children if a license is granted than he now has or has ever had in the past 15 years as an employee in the framing field or cable industry. Further, there was no evidence presented that granting Respondent the license could increase the risk of reoffending or provide more opportunity to reoffend. It was noted that Lorre Anderson, a therapist for the county’s sex offender group in 2013, assessed Mr. Begoody as low risk to reoffend and that Dr. John DiBacco, a psychologist, in March 2020 wrote that Mr. Begoody presented a low risk for re-offense. (Respondent’s Exhibit 5, 18).
12. The Tribunal acknowledges that a criminal record may be only one factor in a determination of good character and reputation or lack thereof. However, there was no other evidence presented of lack of good character and reputation other than the criminal convictions.
13. In conclusion, the Tribunal finds that Respondent has met its burden in establishing the good character and reputation of Mr. Begoody as a qualifying party for Respondent necessary for licensure as required by A.R.S. § 32-1122(C).
RECOMMENDED ORDER
Based on the foregoing, it is recommended that the denial of Respondent’s pending Application be reversed.
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 five days from the date of that certification.
Done this day, September 15, 2020.
/s/ Roger Geddes
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors