ALJDEC - Licensing

24A-0001-AH-AZGFD · Arizona Game and Fish Department · 2024-04-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

In the Matter of

Thomas Rose,

Respondent.

No. 24A-0001-AH-AZGFD

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 27, 2024 at 9:00 AM.

APPEARANCES: Assistant Attorneys General Linda Pollack, Esq. and Patrick Boyle, Esq. appeared on behalf of the Arizona Game and Fish Department (“Department”). Benjamin Green, Esq. appeared on behalf of Thomas Rose (“Respondent”) with Maitte Vasquez and James “Artie” Eaves, Esq. as witnesses. Special appearance by Santa Cruz County Attorney Civil Division Bureau Chief Robert May, Esq. Respondent, Bradley Fulk, Brian Argon, and Jaime Lenhart observed.

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

EXHIBITS ADMITTED INTO EVIDENCE: The Notice of Hearing, Department’s Opining Brief, Department Exhibits 1-8, Respondent’s Prehearing Memorandum, Respondent Exhibits A-K, Subpoenaed Exhibits 1-5, and both parties’ reply briefs were admitted into the record.

_____________________________________________________________________

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 Department.

FINDINGS OF FACT

Background and Procedure

On February 22, 2024, the Department issued a Notice of Hearing for the above-captioned matter before the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing on March 27, 2024, to determine the following:

Was [Respondent] convicted of a Title 17 unlawful taking offense when he pled guilty to the crime of Possession of an Unlawfully Taken Deer, a class 2 misdemeanor, in the Santa Cruz County Justice Court? Or did [Respondent] enter into a deferred prosecution agreement that did not involve a conviction?

Hearing Evidence

The Department declined to call any witnesses to testify. Respondent called Maitte Vasquez and James “Artie” Eaves, Esq. as witnesses The substantive evidence of record is as follows:

On an unknown date, Respondent was charged with violation(s) of Ariz. Rev. Stat. §§ 17-309(A)(11) and 17-309(A)(16); Taking Wildlife in Closed Area, and Possession of Unlawfully Taken Deer, respectively, both class 2 misdemeanors, before Santa Cruz County Justice Court (“Justice Court”) in Case Nos. CM2022-008/009. The underlying incident(s) allegedly occurred on or about December 19, 2021.

On or about November 28, 2022, Respondent entered into a Global Misdemeanor Plea Agreement (“Agreement”) in Justice Court whereby Respondent plead guilty to Count A: Unlawfully Taken Deer, a class 2 misdemeanor in violation of Ariz. Rev. Stat. § 17-309(A)(16), in Case No. CM2022-008. Pursuant to the Agreement, judgement of guilt would be deferred pending Respondent’s successful completion of a 2-year deferment program, and the remaining charges would be dismissed.

On or about November 30, 2022, Respondent’s Agreement was accepted by Justice Court. The plea was deferred and the remaining charges were dismissed.

Currently, in the Justice Court’s system Case No. CM2022-008 is designated as a “deferred prosecution.”

No judgment of guilt or conviction has been entered against Respondent in Case No. CM2022-008, as he is currently in compliance with the terms of the Agreement.

If Respondent successfully completes the terms of the Agreement, Case No. CM2022-008 shall be dismissed by Justice Court with prejudice.

On or about March 20, 2023, the Department issued a Notice of Hearing for Revocation and/or Civil Assessment (“Revocation Notice”) to Respondent, which sought to revoke any licenses to take wildlife held by Respondent and to complete a Hunter Safety Course. The Agreement is neither referenced nor acknowledged.

On April 04, 2023, Respondent submitted a request to the Department for the Revocation Notice to be withdrawn, and provided the Department with documentation to support his request.

On April 13, 2023, Respondent contacted the Attorney General’s Office (“AGO”) to request an explanation regarding the Department’s alleged jurisdiction to issue the Notice of Hearing in these proceedings. The AGO did not respond to Respondent.

On or about May 26, 2023, Respondent filed a Complaint for Special Action in Arizona Superior Court, Maricopa County; Case No. CV2023-007976.

On an unknown date, the Department filed a Motion to Dismiss Case No. CV2023-007976 on the grounds that Respondent had not exhausted all of his available administrative remedies.

On August 29, 2023, Case No. CV2023-007976 was dismissed. In doing so, the judge specifically noted that Respondent had the right under Ariz. Rev. Stat. § 12-901 to appeal whether there was a “conviction” for purposes of Ariz. Rev. Stat. § 17-340, as well as the Game and Fish Commission’s (“Commission’s”) jurisdiction to take action against the Respondent pursuant to Ariz. Rev. Stat. § 17-340.

Additional Evidence

In his March 08, 2024, Affidavit sworn under oath, Respondent attested that he entered into the Agreement with the understanding that there would be no judgement or conviction on his record as long as he completed its terms, after which the case would be dismissed. Respondent also attested that he had confirmed with Justice Court that to date, he was (1) compliant and current with the terms of the Agreement, and (2) no conviction had been entered against him in their court system. Respondent further attested that he confirmed with the Arizona Department of Public Safety (“DPS”) that his background check did not contain any convictions or criminal activity whatsoever.

Ms. Vasquez, Senior Court Clerk for Santa Cruz County Justice Court, confirmed that, as of the date of the hearing, Case No. CM2022-008 was designated as a deferred prosecution in the court’s system, no conviction had been entered against Respondent, and that upon the expiration of the Agreement the matter would be dismissed if all terms were satisfied by Respondent.

Mr. Eaves, a subject matter expert, testified that Respondent did not have a “conviction” under the language of Ariz. Rev. Stat. § 17-340 or pursuant to any other interpretation of criminal law. Per Mr. Eaves, the State of Arizona (“State”) and Respondent entered into a diversion/deferred prosecution contract by executing the Agreement, which noted the following:

HOWEVER, JUDGMENT OF GUILT WILL BE DEFERRED PENDING SUCCESSFUL COMPLETION OF TERMS.

(Emphasis in original.)

Moreover, the court’s acceptance of Respondent’s plea was denoted as follows in the Sentence and Order:

_XX_ ACCEPTANCE OF PLEA DEFERRED

THE FOLLOWING COUNTS ARE DISMISSED:

Count I: ALL OTHER CHARGES.

(Emphasis in original.)

Mr. Eaves also testified that the “ripeness doctrine” prevented premature judgment or opinion on a situation that may never occur.

Closing Arguments

In closing, Respondent argued that the clear intent of Respondent and the State was to enter a diversion/deferred prosecution agreement, which would allow Respondent to avoid judgment and conviction if he abided by the Agreement’s terms. The Agreement was mutually beneficial to both parties, allowing Respondent to avoid conviction and the State to avoid trial in a disputed case; but permitting the State to secure conviction without a trial if Respondent did not comply with all of the Agreement’s terms. Respondent argued that he entered into a diversion/deferred prosecution agreement, the acceptance of which is deferred, and no judgment against him has been entered as of the date of the hearing. The question whether Respondent may, at some point in time, be subject to the jurisdiction of the Commission for consideration of any suspension or revocation is not ripe until and when Respondent violates a term of the Agreement and a conviction is formally entered by the court. As such, Respondent further argued that the Department, and thereby the Commission, lacked jurisdiction to act under Ariz. Rev. Stat. § 17-340(A)(1) or Ariz. Rev. Stat. § 17-314 in this matter.

In closing, the Department argued that a deferred prosecution had not taken place in Case No. CM2022-008. The Department opined that a deferred prosecution amounts to a suspension of prosecution whereby a criminal defendant signs a Consent to Participate in Diversion form, and is thusly referred to a deferred prosecution program; upon the successful completion of the diversion program’s terms and obligations, the prosecutor files a Motion to Dismiss the criminal complaint with the court. Per the Department, none of the aforementioned steps were taken in Case No. CM2022-008. The Department argued that the evidence established Respondent’s criminal conviction for violation of Ariz. Rev. Stat. § 17-309(A)(16) via guilty plea, and that judgment and sentencing had been entered against Respondent in Santa Cruz County Justice Court as a result. As such, the Department opined that the Commission maintained jurisdiction over Respondent to take disciplinary action against his hunting, fishing, and trapping privileges under Ariz. Rev. Stat. § 17-340(A)(1), as well as possible imposition of a civil penalty against Respondent under Ariz. Rev. Stat. § 17-314.

CONCLUSIONS OF LAW

This subject matter lies within the Department’s jurisdiction. The matter was properly brought before OAH.

The mission of the Department is to conserve and protect the State’s wildlife. The Department’s statutory scheme is intended to ensure that the state’s wildlife will be available for future generations to enjoy.

The Department bears the burden of proof to establish cause to take disciplinary action against Respondent’s hunting, fishing, and trapping privileges, as well as the imposition of any related civil penalties, by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of discipline and/or applicable civil penalties, including any affirmative defenses, by the same evidentiary standard.

“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

Ariz. Rev. Stat. § 17-340(A)(1) provides, in pertinent part, that on conviction the commission, after a public hearing, may revoke or suspend a license issued to any person under this title and deny the person the right to secure another license to take or possess wildlife for a period of not to exceed five years for the unlawful taking of wildlife.

Ariz. Rev. Stat. § 17-314(A)(2) provides that the commission may impose a $1,500.00 civil penalty against any person for unlawfully taking of a deer.

Statutes should be interpreted to provide a fair and sensible result. “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.”

“Plea agreements are contractual in nature and subject to contract interpretation.”

Per the Arizona Supreme Court, “Our courts exercise restraint to ensure they refrain from issuing advisory opinions, that cases be ripe for decision and not moot, and that issues be fully developed between true adversaries.”

The crux of the issue in the case at bar is whether Respondent was convicted of a Title 17 unlawful taking offense; which would give the Commission jurisdiction to take disciplinary action against his hunting, fishing and trapping privileges for a period of up to five years as well as allow the Commission to impose a civil penalty against Respondent, or whether Respondent entered into a deferred prosecution agreement sans conviction; which would render the Commission outside its jurisdiction and unable to impose discipline or civil penalties in this matter. Based on the relevant and credible evidence of record, the Tribunal finds that Respondent has not yet been convicted unlawful taking offense – though he may, should he fail to satisfy all of the terms of the Agreement prior to its expiration.

The record clearly establishes that, per the Justice Court’s system, Case No. CM2022-008 is designated as a “deferred prosecution.” No conviction has taken place. If and when If Respondent successfully completes the terms of the Agreement, the criminal matter shall be dismissed by the court with prejudice. It is apparent from the adjudication of those proceedings that both the State and Respondent intended for Respondent to enter into a diversion program to forgo judgment and conviction once he met all applicable terms in the Agreement. It is also apparent that the State intended to avoid trial in the matter, but relied on the fact that Respondent could be convicted without a trial should he fail to comply with the terms of the Agreement.

Here, Respondent’s argument that the Department’s attempted jurisdictional assertion is unripe is spot on. The Department, and by extension the Commission, will have personal and subject matter jurisdiction over Respondent only if and when Respondent fails to fulfill the terms of the Agreement. Respondent’s future failure(s), if any, trigger the Department’s jurisdiction and establish grounds for discipline and imposition of civil penalties. Because no such actions have been taken by Respondent to trigger this statutory authority, the Department lacks the ability to exercise jurisdiction over Respondent at this time.

Notably, should Respondent successfully complete the Agreement, the underlying issue shall be moot.

Because the Department has failed to establish Respondent’s violation(s) of Ariz. Rev. Stat. § 17-340(A)(1) or criminal conviction of Ariz. Rev. Stat. § 17-309(A)(16) by a preponderance of the evidence, grounds do not exist for the Department to take disciplinary action against Respondent’s hunting, fishing, and trapping privileges. As such, grounds also do not exist for the Department to impose civil penalties of any nature in this matter under Ariz. Rev. Stat. § 17-314.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that the Department’s March 20, 2023, Revocation Notice, as issued against Respondent Thomas Rose, be quashed.

NOTICE

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, April 19, 2024.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

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

Ty Gray, Director

Arizona Game and Fish Department, Complainant

5000 W. Carefree Hwy.

Phoenix, AZ. 85086-5000

[email redacted]

Linda Pollock, Esq., Assistant Attorney General

Office of the Attorney General, Counsel for the Arizona Game and Fish Department

2005 N. Central Ave.

Phoenix, AZ 85004

[email redacted]

Benjamin C. Green, Esq.

Benjamin C. Green Law, PLC, Counsel for Respondent

4808 N. 22nd St., Ste. 200

Phoenix, AZ 85016

[email redacted]

By: OAH Staff