ALJDEC

99F-D0010-ROC · Registrar of Contractors · 1999-09-02

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to notice, a formal hearing was held in this case on September 2, 1999, in Phoenix, Arizona, before Neal H. Jordan, Administrative Law Judge of the Office of Administrative Hearings. APPEARANCES For Appellant: James E. Bothom, pro se For the State: Assistant Attorney General, Patti Shelton, Esq.

FINDINGS OF FACT Based upon all the evidence of record, the following findings of fact are determined: The Appellant has applied for the issuance of a Class C-48 license as an owner and qualifying party, which license would enable Appellant to offer and perform residential construction work related to providing materials and services for the installation of ceramic, plastic and metal tile. The Registrar of Contractors, after a qualifying review and examination, denied the pending application pursuant to the provisions of A.R.S. §32-1122 D, and §32-1154 A (8), basing the denial upon the following conclusions:

b. Appellant, James Eric Bothom, as owner and qualifying party, has failed to establish good character and reputation; and, c. Appellant, James Eric Bothom, as owner and qualifying party, “has been convicted of felonies.” Appellant, by a plea of guilty under a plea agreement, was convicted in the United States Federal District Court in Phoenix, Arizona, for the felony crimes of conspiracy and unlawful transportation of a destructive device. As a result of this conviction, Appellant was sentenced to a prison term of months followed by a period of probation with the condition that he perform a certain number of hours in community service. The evidence establishes that Appellant served 33 months of the prison term and is currently on probation and will remain so until sometime in the year 2000. Further, Appellant’s unverified testimony is that the condition of community service has been satisfied, which presumably triggers an ability to apply for an early release from probation. For a period of time prior to Appellant’s conviction and subsequent to his release from prison, he has worked continuously for a licensed contractor as an employee installing tile in residential structures. The uncontroverted testimony is that such work has been and is satisfactory and that no complaints are known to have been filed as a result of his workmanship. At the hearing, other than testimony from Appellant’s father-in-law, Appellant did not provide any independent evidence as to his rehabilitation or present character and reputation in the community or in the tile installing industry. There were no letters from family and friends, and no written statements from his employer or satisfied customers. Appellant maintained, somewhat disingenuously, that he did not know what would happen at the hearing or what would be required of him at that time. It is noted that, but for a simple request for an informal hearing contained in his notice of appeal, Appellant exercised no effort to learn about the nature of these proceedings, but simply waited for the date of the hearing to arrive without taking any interim steps to become fully informed. Appellant did not provide any evidence from his probation officer indicating that he is successfully completing his probation without incident or chargeable violation. Further, Appellant could not state with any degree of certainty just when his probation would expire or otherwise terminate.

CONCLUSIONS OF LAW The Office of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to A.R.S. §41-1092 - 1092.12 (1998). The Appellant has taken this appeal and accordingly bears the burden of proving by a preponderance of the evidence that the denial of his license application was arbitrary, erroneous or contrary to law. Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (Ct. App. 1996); Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985), (the standard of proof is that of the “preponderance of evidence.”) The Registrar of Contractors determined, admittedly based upon full disclosure from Appellant, that the Appellant had been convicted of the felonies as found in the findings of fact. A.R.S. §32-1122 D provides that a contractor’s license will be issued only if it is found that the applicant is of “good character and reputation.” In determining whether good character and reputation exists, the Registrar of Contractors must examine whether any fact(s) exists that would constitute grounds for the suspension or revocation of a license had one been issued. In making this determination the Registrar of Contractors must review whether the applicant has committed any act or omission that under A.R.S. §32-1154 A would form the basis for a suspension or revocation of any license as authorized by the provisions of A.R.S. §32-1154 B. Since the uncontroverted evidence is that Appellant was convicted of a felony, then that finding, a priori, leaves the Registrar of Contractors little discretion, -- in the absence of evidence that would be the basis for granting the license with specific conditions --, but to deny Appellant’s application. It is true that Appellant’s father-in-law testified as to his character, and this is, indeed, laudable. However, when presented with the circumstances attendant to the gravity of the prior felony convictions and the ongoing probationary period, it is insufficient to overcome the rather terse provision of law that a contractor must not be found to have been convicted of a felony. Appellant’s ability and qualifications to install tile in residential structures is not the basis for the denial of the application in this case. Certainly his ability may be exceptional (although no evidence was presented to establish that fact). However, relative the issue of good character and reputation, that is a non-factor, let alone the determining one. Having found that the prior felony convictions establish that Appellant lacks the requisite good character and reputation, it was Appellant’s burden (opportunity) to present evidence that he has been fully rehabilitated and now manifests the character, attitude and awareness of one’s responsibilities that is fundamentally necessary to be a fully productive and valued member of the contracting community. It is of concern to this tribunal that such evidence was not forthcoming, which also raises a further concern as to Appellant’s present ability to effectively and efficiently manage a business as a licensed contractor. While Appellant has demonstrated an increased awareness and desire to become and remain a productive and responsible citizen and, possibly as a businessperson, the evidence (or lack thereof) is not presently sufficient to form a basis for finding that the denial of the application was arbitrary, erroneous, or contrary to law. The holding that Appellant’s application was properly denied is not be construed as a basis for continuing denials should a future application be filed as allowed by law, provided that Appellant continues to pursue, achieve and maintain a good work ethic and family responsibility.

RECOMMENDED ORDER In view of the foregoing, it is recommended that the denial of the pending application by the Registrar of Contractors be and hereby is affirmed, and that any license bond and/or recovery fund fee be returned to Appellant in ordinary course.

DONE AND ENTERED this day, September 2, 1999

______________________________________ Neal H. Jordan Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 1999, to:

Registrar of Contractors Mr. Michael P. Goldwater ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

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Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826