ALJDEC - Licensing

23A-101127-AGR · Department of Agriculture · 2024-01-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of:

MATTHEW HAMBY

License Applicant,

Appellant.

No. 23A-101127-AGR

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 3, 2024

APPEARANCES: Appellant Matthew Hamby appeared on his own behalf. The Arizona Department of Agriculture was represented by Assistant Attorney General Zachary Howard.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

EXHIBITS ADMITTED INTO EVIDENCE: Department’s Exhibits 1 and 2; Appellant’s Exhibit A.

_____________________________________________________________________

FINDINGS OF FACT

On or about November 14, 2012, Appellant Matthew Hamby was convicted in Maricopa County Superior Court of Burglary in the First Degree, a class 2 dangerous felony. Appellant was sentenced to a term of imprisonment of 8 years.

In March 2023, the Arizona Department of Agriculture (Department) received an application for Certified Applicator from Appellant.

On August 28, 2023, the Department issued a Notice of Denial of Application (Denial) to Appellant. The Denial provided that the application was denied because Appellant had been convicted of a misdemeanor involving moral turpitude and/or a felony.

Appellant appealed the denial. The matter was referred to the Office of Administrative Hearings for a hearing on the matter.

At the hearing, Appellant acknowledged that he had made a lot of mistakes when he was younger. Appellant asserted that since his release on January 3, 2019, he had a steady work history and good working relationships with his co-workers and management. Appellant admitted that the license he was seeking would allow him to access people’s homes, but maintained that his job did not require that. Rather, Appellant was only intending to spray stumps left after trees were cut down. Appellant also questioned why certain levels of sex offenders could be granted a license if he could not.

Christina Castro, Customer Service Unit Supervisor, testified that some people may be granted a license after enough time had passed from the applicant’s release from incarceration. Ms. Castro stated that the Department likes to see applicants have at least seven years after release without further issues before it considers granting an application.

CONCLUSIONS OF LAW

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 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.”

The Department is the duly constituted authority for the regulation and control of pest management and certification of pesticide applicators.

The Director of the Department may deny a license based on the information in the application.

Ariz. Rev. Stat. § 3-3624(B) provides, in pertinent part, as follows:

B. The following nonexclusive acts are grounds for disciplinary action:

. . . .

8. Being convicted of a felony, a misdemeanor arising from or in connection with a license issued pursuant to this chapter after issuance of the license or a misdemeanor involving moral turpitude.

The uncontroverted evidence in this matter established that Appellant was convicted of Burglary in the First Degree, a class 2 dangerous felony, on November 14, 2012.

Accordingly, grounds exist under Ariz. Rev. Stat. § 3-3624(B)(8) to deny Appellant’s application at this time.

The Administrative Law Judge applauds Appellant’s determination to improve his life. However, until sufficient time has passed since his incarceration to establish the license should be granted, denial of the license is appropriate.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Department’s order, the Department affirm the decision to deny Appellant’s application for Certified Applicator.

Pursuant to Ariz. Rev. Stat. § 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, January 22, 2024.

/s/ Tammy L. Eigenheer

Administrative Law Judge

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

Keith Kelly, Director

Department of Agriculture

Deanie Reh

Office of the Attorney General

[email redacted]

Matthew Hamby

[email redacted]

By: OAH Staff