ALJDEC decisions subject to certification as final

23A-101095-AGR · Department of Agriculture · 2023-07-11

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Daniel Salato,

License Applicant,

Appellant

No. 23A-101095-AGR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: June 23, 2023

APPEARANCES: Assistant Attorney General Deanie Reh appeared on behalf of the Department of Agriculture (Department). Appellant Daniel Salato (Appellant) appeared on behalf of himself.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

On May 10, 2023, the Department issued a Notice of Hearing setting the above-entitled matter for hearing on June 23, 2023. The Notice of Hearing provided that the issue set for determination was, “whether grounds exist to reverse the decision of the Arizona Department of Agriculture, Central Licensing Division, to deny the applicator Certification for Appellant”.

A hearing was held on June 23, 2023.

At hearing, Appellant testified on behalf of himself and presented the testimony of his employment supervisor, David Shanley. The Department presented the testimony of Christina Castro, the Department’s Customer Service Unit Supervisor.

Appellant Daniel Salato filed an application for Certified Applicator with the Department. Shortly thereafter, on February 13, 2023, Appellant submitted a Criminal Conviction Disclosure form acknowledging that he had been convicted of a misdemeanor and a felony.

In 2021, Appellant was convicted of Trafficking in Stolen Property, a felony, in violation of Arizona Revised Statutes (A.R.S.) § 13-2307(B). See Exhibit 2. Appellant was ordered to complete Supervised Probation for a term of two years beginning May 20, 2021. See id at AGR005.

In 2019, Appellant was convicted of Shoplifting, a misdemeanor, in violation of A.R.S. § 13-1805(A)(1). See Exhibit 3.

On April 14, 2023, the Department issued a notice denying Appellant’s application for certified applicator. See Exhibit 4.

Appellant requested a hearing regarding the denial.

At the time of the hearing, Appellant had completed probation.

At hearing, Appellant did not dispute the criminal convictions. Appellant expressed that he was a changed man and that he should be given a second chance.

The evidence presented at hearing shows that Appellant is not required to enter residential homes in his current job. However, it is undisputed that if Appellant held a license as a Certified Applicator, he would be allowed to enter residential homes if necessary for work.

CONCLUSIONS OF LAW

The Director of the Department has jurisdiction over Respondent and the subject matter in this case.

Pursuant to Arizona Revised Statutes (A.R.S.) § 41-1092.07(G)(2) and

A.A.C. R2-19-119(B), Appellant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119(A).

3. A.R.S. § 1-215(24) provides:

Moral turpitude" means an offense, whether a misdemeanor or felony, that is related to extortion, burglary, larceny, bribery, embezzlement, robbery, racketeering, money laundering, forgery, fraud, murder, voluntary manslaughter or a sexual offense that requires the individual to register pursuant to section 13-3821.Moral turpitude" means an offense, whether a misdemeanor or felony, that is related to extortion, burglary, larceny, bribery, embezzlement, robbery, racketeering, money laundering, forgery, fraud, murder, voluntary manslaughter or a sexual offense that requires the individual to register pursuant to section 13-3821.

4. The Department’s concern in this case is legitimate and well-founded.

A person with a criminal record must be given close scrutiny and careful consideration when he applies for a professional license. The concern of the Department is essential and legitimate in light of the Appellant’s past convictions for Trafficking of Stolen Property and Shoplifting.

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

However, the Appellant has the burden of proving by the preponderance of the evidence that he has resolved the issues that led to the commission of the Trafficking of Stolen Property and Shoplifting convictions.

6. The evidence presented at hearing shows Appellant committed crimes

that involve theft, and therefore, and therefore moral turpitude as defined in A.R.S. § 1-215(24).

7. The Department may deny an applicator certification for a felony or a

misdemeanor involving moral turpitude. See A.R.S. §§ 3-3603(B)(5); 3-3621(G); and 3-3624(B)(8); and A.A.C. R3-8-203(B).

8. Appellant has failed to meet its burden to prove that grounds exist to reverse the decision of the Arizona Department of Agriculture, Central Licensing Division, to deny the applicator Certification for Appellant. Consequently, this Tribunal concludes that the Department’s decision to deny the applicator Certification for Appellant should be affirmed.

ORDER

IT IS ORDERED that the Department’s decision to deny the applicator Certification for Daniel L. Salato is affirmed.

IT IS FURTHER ORDERED that Daniel L. Salato’s appeal is dismissed.

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.

-54864001

001

-137160-45720000Done this day, July 11, 2023.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Mark W. Killian , Director

Department of Agriculture

By: OAH Staff