ALJDEC decisions subject to certification as final

2022A-08190-LDA-LS-ROC · Registrar of Contractors · 2022-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT,

v.

Pristine Quality Mechanical, LLC

RESPONDENT.

No. 2022A-08190-LDA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 04, 2022 at 9:00 AM.

APPEARANCES: Assistant Attorney General Justin Larson, Esq. appeared on behalf of the Arizona Registrar of Contractors (“Registrar”) with Robert Sterling as a witness. Edwardo Otero appeared on behalf of Pristine Quality Mechanical, LLC (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

_____________________________________________________________________

After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.

FINDINGS OF FACT

Background and Procedure

On or about June 15, 2022, the Registrar received an application for CR-39 Air-Conditioning and Refrigeration contracting licensure from Respondent, Application No. [number redacted].

Edwardo Otero (“Mr. Otero”) was listed on the application as Respondent’s proposed Qualifying Party/Manager.

Included in the application was a Disclosure form. Respondent answered “Yes” for Question #4 “Has the Qualifying Party in Part 2 or any individual listed in in Part 3: Persons of this application ever been convicted of a felony or have a pending felony charge that has not yet received a disposition?” (Emphasis added.)

In the attached RC-L-202A Felony Disclosure form, six (6) felony convictions were disclosed for Mr. Otero.

In the last section of the application, Part 6: Signatures, the following warning is issued as follows: By signing below, each person certified that the entire contents of this License Application Form, including all supplementary statements and materials attached, are true and correct, and that this application is not submitted with the intent to evade Chapter 10, Title 32 of the Arizona Revised Statutes. A.R.S. § 32-1154(A)(9). It is a violation of A.R.S. § 32-1154(A)(5) to make a misrepresentation of a material fact in obtaining a license. (Emphasis in original.)

On June 15, 2022, Mr. Otero electronically signed the application.

On August 19, 2022, the Registrar issued a Notice of License Denial (“Denial”) to Respondent for Application No. [number redacted] based on Mr. Otero’s’ felony convictions in violation of Ariz. Rev. Stat. §§ 32-1122(C); 32-1154(A)(7). An appeal of the Denial was due on or before September 23, 2022.

The Registrar received a timely appeal from Respondent.

On September 19, 2022, the Registrar referred the matter to the Office of Administrative Hearings (“OAH”) for an independent evidentiary hearing on November 04, 2022. Pursuant to the October 04, 2022, the purpose of the hearing was to determine whether grounds exist for the Registrar to deny Respondent’s application for licensure based on alleged violation(s) of Ariz. Rev. Stat. 32-1122, as established by the evidence.

Hearing Evidence

The Registrar called Robert Sterling, Esq. – Assistant Chief Counsel, as a witness and submitted Exhibits 1-8. Respondent called Mr. Otero as a witness and submitted Exhibit A1-A6. The Notice of Hearing was also admitted into the record as its own exhibit. The substantive evidence of record is as follows:

On or about June 01, 1999, Mr. Otero plead guilty to Transportation of Dangerous Drugs, a class 2 felony, in violation of Ariz. Rev. Stat. §§ 13-3401, 13-3407, 13-3418, 13-701, 13-702, and 13-801 as committed on December 15, 1997, when Mr. Otero was found in possession of methamphetamine. As a result, Mr. Otero was incarcerated for four years. He was released on May 18, 2005.

The conviction has not been set aside.

On or about June 01, 1999, Mr. Otero plead guilty to Possession of Dangerous Drugs for Sale, a class 2 felony, in violation of Ariz. Rev. Stat. §§ 13-3401, 13-3407, 13-3418, 13-701, 13-702, and 13-801 as committed on February 17, 1999, when Mr. Otero was found in possession of methamphetamine. As a result, Mr. Otero was incarcerated for four years. He was released on May 18, 2005.

The conviction has not been set aside.

On or about June 01, 1999, Mr. Otero plead guilty to Unlawful Flight, a class 5 felony, in violation of Ariz. Rev. Stat. §§ 28-622.01, 28-624(C), 28-444, 13-701, 13-702, and 13-801 as committed on May 03, 1997, when Mr. Otero failed to stop his vehicle and drive in the direction of a police car. As a result, Mr. Otero was incarcerated for 9 months. He was released on May 18, 2005.

The conviction has not been set aside.

On or about April 13, 2000, Mr. Otero plead guilty to Possession of Marijuana for Sale, a class 2 felony, in violation of Ariz. Rev. Stat. §§ 13-3405, 13-3401, 13-3418, 13-701, 13-702, 13-702.01, and 13-801 as committed on July 26, 1998, when Mr. Otero was found in possession of marijuana. As a result, Mr. Otero was incarcerated for five years. He was released on May 18, 2005.

The conviction has not been set aside.

On or about May 24, 2000, Mr. Otero plead guilty to Possession of Marijuana for Sale, a class 2 felony, in violation of Ariz. Rev. Stat. §§ 3401, 13-3405, 13-3418, 13-701, 13-702, and 13-801 as committed on July 26, 1998, when Mr. Otero was found in possession of marijuana. As a result, Mr. Otero was incarcerated for five years. He was released on May 18, 2005.

The conviction has not been set aside.

On or about September 21, 2016, Mr. Otero plead guilty to two counts of Misconduct Involving Weapons, a class 4 felony, in violation of Ariz. Rev. Stat. §§ 13-3101, 13-3102, 13-3105, 13-701, 13-702, and 13-801 as committed on November 20, 2015, when Mr. Otero was found in possession of numerous firearms, some of which were determined to be stolen. As a result, Mr. Otero was incarcerated for one year. He was released on June 30, 2017, and later released from probation on October 03, 2019.

The conviction has not been set aside.

In the Relevant Experience section of Respondent’s application for licensure, Mr. Otero’s requisite experience is listed as “education; hands-on, supervisor” with no specific period of time offered.

Additional Evidence

Respondent offered 6 letters of recommendation for Mr. Otero, one of which Mr. Otero wrote himself. In his letter, Mr. Otero noted that he had approximately 17 years of experience in the construction industry, the last 5 years of which he spent in the special projects field managing project from $500 to $15,000. Mr. Otero also expressed remorse for conduct resulting in his criminal convictions, and opined that licensure would afford him an opportunity to give back to a community that supported him as well as provide his family with a better life.

The only letter that addressed Mr. Otero’s criminal history was penned by his wife, who opined that Mr. Otero’s past conduct had “never caus[e] harm to anyone.”

In the remaining letters Mr. Otero’s colleagues and clients provided glowing recommendations regarding his professionalism, job performance, and character.

Closing Arguments

In closing, the Registrar argued that Mr. Otero’s prior criminal convictions established a lack of good character and reputation; relying heavily on Mr. Otero’s 2000 Unlawful Flight and 2016 Misconduct Involving Weapons pleas. The Registrar also argued that Mr. Otero’s convictions established a pattern of criminal behavior and a lack of rehabilitation, as his most recent conviction demonstrated a furtherance and propensity for criminality.

Per the Registrar, licensing Mr. Otero would present an unreasonable risk to public safety given the nature of his prior convictions and the potential circumstances under which he would enter into contracts. As such, the Registrar asked that its denial of Respondent’s request for licensure, with Mr. Otero as its Qualifying Party/Member/Manager, be affirmed.

In closing, Mr. Otero acknowledged that his prior criminal convictions were a result of mistakes he had made, and argued that he was no longer that person as he was now a loving husband, devoted father, and hardworking employee with pure intentions. Per Mr. Otero, he had “taken a lot” from the public and sought licensure as a way to “give back.” Mr. Otero offered that he understood the Registrar’s position, but admittedly sought an exception in the hopes that he would be afforded an opportunity to prove he was deserving of the chance. Mr. Otero promised not to disappoint the Registrar should he be issued a license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction and was properly brought before OAH for adjudication.

“[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.”

Respondent bears the burden 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.”39 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 as 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.”

In interpreting a statute, “[w]e first consider the language of the statute and, if it is unclear, turn to other factors, including ‘the statute’s context, subject matter, historical background, effects, consequences, spirit, and purpose.” “In applying a statute its 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.”

The legislature did not intend for the Registrar to deny a license application based solely on a technicality and in the face of evidence that the applicant is otherwise qualified.

The conviction of multiple crimes is not a permanent bar to being licensed.

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." . . .

Ariz. Rev. Stat. § 32-1122(C) provides, in pertinent part, that a lack of good character and reputation “may be established by showing that a person engaged in contracting without a license.”

Ariz. Rev. Stat. § 32-1154(A)(7) provides that the holder of a license, or any person named on the license, may not be convicted of a felony.

Here, it is undisputed that Mr. Otero was convicted of 6 different felonies between 1999 and 2016. It is also undisputed that Mr. Otero fulfilled his final probation obligations on October 03, 2019. It is further undisputed that none of Mr. Otero’s convictions have been set aside.

Approximately 2 years and 8 months have passed since the end of Mr. Otero’s probation and the date of Respondent’s application for licensure. While Mr. Otero credibly testified that he is no longer the person who committed the crimes for which he served several years in prison, Mr. Otero did not testify about specific changes that he has made in his life that make future criminal conduct more unlikely.

A person with a criminal record must be given close scrutiny and careful consideration when he applies for a professional license. Once good character is shown as absent, it is not automatically regained by the mere passage of time. In the case at bar, the Registrar’s concerns are legitimate and well-founded in light of Mr. Otero’s past drug, weapons, and flight convictions, absent any substantial evidence or plan from Respondent to ensure that Mr. Otero’s dealings with the public are unlikely to put them at risk.

Therefore, based on the credible and relevant evidence of record, the Tribunal concludes that the Registrar soundly denied Respondent’s application for CR-39 contracting license based on Mr. Otero’s violations of Ariz. Rev. Stat. §§ 32-1122(C) and 32-1154(A)(7).

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Registrar deny Respondent’s appeal.

IT IS FURTHER RECOMMENDED that the Registrar affirm the denial of Application No. [number redacted].

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 forty (40) days from the date of that certification.

Done this day, November 14, 2022.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

c/o Legal Department

Arizona Registrar of Contractors, Complainant

1700 W. Washington St., Ste. 105

Phoenix, AZ 85007

[email redacted]

Justin Larson, Esq., Assistant Attorney General

Office of the Attorney General, Counsel for Complainant

2005 N. Central Ave.

Phoenix, AZ 85004

[email redacted]

Pristine Quality Mechanical, LLC, Respondent

ATTN: Edwardo Otero

23601 W. Pecan Rd.

Buckeye, AZ 85326

[email redacted]

By Miranda Alvarez

Legal Secretary