ALJDEC - Licensing
2022A-10486-OMC-LS-ROC · Registrar of Contractors · 2023-11-20
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Arizona Registrar of Contractors,
COMPLAINANT
v.
Better Living Cooling and Heating LLC
License No. ROC 327987,
RESPONDENT
No. 2022A-10486-OMC-LS-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: September 1, 2023 and November 3, 2023.
APPEARANCES: Complainant Arizona Registrar of Contractors was represented by Assistant Attorney General Wesley Cox. Respondent Better Living Cooling and Heating, LLC was represented by Jeffrey L. Laskin.
ADMINISTRATIVE LAW JUDGE: Adam D. Stone
_____________________________________________________________________
FINDINGS OF FACT
Better Living Cooling and Heating, LLC (Respondent) is the holder of License No. 327987 issued by the Arizona Registrar of Contractors (Registrar). Roy Dwain Bartels II was Respondent’s Qualifying Party.
On or about January 6, 2023, the Registrar issued a Citation to Respondent alleging that Respondent violated A.R.S. § 32-1154(A)(7) as Mr. Bartels had been convicted of felony.
On or about January 19, 2023, Respondent timely filed an Answer to the Citation.
On or about February 13, 2023, the Registrar issued a Notice of Hearing setting this matter for hearing on March 17, 2023.
After a couple of continuances, a hearing was held on September 1, 2023 and a further hearing was held on November 3, 2023.
At hearing, the Registrar offered the testimony of Assistant General Counsel Robert Sterling and submitted 12 exhibits into evidence. Respondent presented the testimony of Ashley Augusta, Shelbi Bottoms, Roy Bartels, Jennifer Locken, Patrick Taylor, Scott Naughton, Chris Ponczak, and Ariel Paleo. Also, Respondent submitted 28 exhibits into evidence.
On or about May 11, 2022, Mr. Bartels was indicted on four counts of Felony Voyeurism.
On or about September 27, 2022, Mr. Bartels entered into a Plea Agreement whereby he plead guilty to the following:
Count 1: VOYEURISM, A CLASS S FELONY (13-1424A), in violation of A.R.S. §§ 13-1401, 13-1424, 13-3821, 12-116.04, 12-116.0S, 12-116.08, 12-116.09, 12-269, 13-902, 13-701, 13-702, and 13-801, committed on January 1, 2020 through and including October 28, 2021
VICTIM A: DOB --
This is a non-dangerous, non-repetitive offense under the criminal code.
Count 2 as amended: ATTEMPT TO COMMIT SURREPTITIOUS PHOTOGRAPHING, A CLASS 6 UNDESIGNATED OFFENSE and Domestic Violence offense {13-3019), in violation of A.R.S. §§ 13-3019, 13-1001, 13-3601, 13-3601.01, 12-116.04, 12- 116.05 12-116.08, 12-116.09, 12-269, 13-604, 13-701, 13-702, 13-801, 13-707, and 13-802, committed on January 1, 2020 through and Including October 28, 2021
VICTIM A: DOB—
This is a non-dangerous, non-repetitive offense under the criminal code.
On or about October 26, 2022, Maricopa County Superior Court Judge Chuck Whitehead sentenced Mr. Bartels to probation for a term of 10 years for Count 1, and probation for a term of 3 years as to Count 2. At that time, the Court declined to order Mr. Bartels to register as a sex offender, and instead set a review hearing in the matter for October 25, 2023 to determine the same.
Mr. Sterling testified that the Registrar received an anonymous email in November 2022, informing the Registrar of Mr. Bartels conviction. Further, Mr. Sterling testified that the Registrar then investigated and concluded that because this was a felony conviction for sexual offense, the Registrar was seeking to revoke Mr. Bartels’ license due to that conviction. Mr. Sterling also testified that nothing less than revocation was acceptable in this case.
Ms. Augusta was the victim in the matter. Ms. Augusta testified that she believed that the incident was a one-time mistake and that Mr. Bartels should not lose is license.
Ms. Bottoms was a Maricopa County Adult Probation Officer and Mr. Bartels was one of her clients. Ms. Bottoms testified that in December 2022, she began supervising Mr. Bartels. Ms. Bottoms testified further that Mr. Bartels always reported as directed, he never failed to communicate, had always been cordial and respectful and was compliant with his random drug and alcohol testing such that he was removed from the random testing requirement. Also, Ms. Bottoms testified that Mr. Bartels had taken responsibility for his actions, had shown remorse and based upon this, she had no concerns of Mr. Bartels reoffending, and opined that he was not a threat to the public.
In addition, Ms. Bottoms testified as to her most recent Field Risk Assessment of Mr. Bartels and her report to Judge Whitehead. Ms. Bottoms stated that Mr. Bartels’ Risk assessment was now “medium to low risk”, and informed Judge Whitehead of the progress Mr. Bartels had made. Finally, Ms. Bottoms testified that to her knowledge, on October 30, 2023, Judge Whitehead had ordered that Mr. Bartels not register as a sex offender and set no further hearings regarding the same.
Mr. Bartels testified as to his upbringing and that he was a single father raising his 15 year old son Chris, and how he wants to leave his business to Chris in the future. He also testified that he had learned his lesson from this incident and now the only camera he has in his household was a Ring doorbell.
As to the convictions, Mr. Bartels testified that he placed a camera in his bedroom because he and his wife at the time, Ms. Augusta, were routinely engaged in arguments. Mr. Bartels explained that he placed camera to protect himself should another physical altercation occur, as he had previously recorded an interaction which ultimately prevented him from being arrested. Mr. Bartels testified that while he believed that Ms. Augusta was aware of the camera, she nonetheless contacted the police as soon as Mr. Bartels filed for divorce. Mr. Bartels testified further that he never shared his videos with anyone, and ultimately chose to plead guilty and accept a longer term of probation to avoid any possibility of jail time.
As to his work, Mr. Bartels testified that he had never been subject to any complaints, and had over 40 “5 star” reviews from past customers.
Finally, Respondent offered the testimony of Jennifer Locken, Patrick Taylor, Scott Naughton, Chris Ponczak, and Ariel Paleo all of who were friends of Mr. Bartels. The witnesses all testified that they believed that Mr. Bartels had learned his lesson, and that he would not reoffend, nor did they have any reservations recommending people to Mr. Bartels to work in people’s homes.
Administrative notice was taken of Respondent’s prior License record on November 20, 2023. Such prior License record reflected that Respondent’s License No. 327987 was first issued on March 5, 2020, and reflected that there was one open complaint, namely the present complaint.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.
Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazzano v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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.R.S. § 32-1154(A)(7) states the grounds for suspension or revocation of a license as follows:
The holder of a license or any person named on a license pursuant to this chapter may not commit any of the following acts or omissions:
...
7. Conviction of a felony.
After carefully reviewing all of the testimony and exhibits presented, the tribunal concludes that the Registrar has not met its burden to revoke Respondent’s license. While the tribunal understands the Registrar’s concerns with a camera being placed in a bedroom, and Mr. Bartels access to customer’s bedrooms, the tribunal finds that the facts surrounding the incident were so unique and one that was likely not to occur again. Mr. Bartels and his wife were engaged in numerous arguments, and Mr. Bartels was trying to protect himself should any accusations of violence or assault occur in the future. There was no evidence presented by the Registrar that Mr. Bartels distributed the videos to others which further proved the uniqueness of this particular crime, and the likelihood that it will not occur again. Further, Judge Whitehead recently ordered that Mr. Bartels not register as a sex-offender which would seem to indicate at even he does not believe that Mr. Bartels was a danger to the public. To revoke Mr. Bartels’ license appears to be heavy-handed, especially in light of the fact that there have been no other complaints as to Mr. Bartels work as a contractor.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that the Registrar dismiss case 2022-10486 against Respondent Better Living Cooling and Heating, LLC.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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 20, 2023.
/s/ Adam D. Stone
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
Wesley Cox
[email redacted]
Jeffrey L Laskin
[email redacted]
By: OAH Staff