ALJDEC

99F-D0013-ROC · Registrar of Contractors · 1999-09-17

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Pursuant to notice, a formal hearing was held in this case on September 17, 1999, in Phoenix, Arizona, before Neal H. Jordan, Administrative Law Judge of the Office of Administrative Hearings. APPEARANCES For Appellant: Edward H. Stracener, pro se For Registrar of Contractors: Assistant Attorney General, Patti Shelton 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 K-42 license as an owner and qualifying party, which license would enable Appellant to offer and perform residential and commercial construction work related to providing materials and services for the installation of roofing. 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, Edward Houston Stracener, as owner and qualifying party, has failed to establish good character and reputation; and, c. Appellant, Edward Houston Stracener, as owner and qualifying party, has been convicted of a felony. On January 29, 1997, Appellant was convicted of a felony in the State of Tennessee for the offense of custodial interference, for which the court suspended the imposition of sentence (although he did serve 212 days awaiting trial and disposition of the case) and placed on probation for a term of two (2) years. While on probation and residing in Tennessee, Appellant maintained appropriate contact with the probation office. However, when Appellant returned to Arizona he was to have his probation transferred to this jurisdiction but after his last report to the probation office in Tennessee on April 21, 1997, he has failed to report as required in either Tennessee or Arizona. As a result, a warrant for violation of probation remains outstanding in Tennessee. State’s Ex. 1. On October 14, 1998, Appellant entered into an Adult Diversion Program and Restitution Agreement in Navajo County, State of Arizona. The underlying facts of this offense appear to be due to continuing domestic problems with a former wife. The terms of the program included restitution, performance of 96 hours of community service and enrolling in a domestic violence and/or anger management treatment program. State’s Ex. 1. The evidence fails to establish whether Appellant has complied with the terms of this program arrangement. While it is clear that the underlying case in this instance does not involve a felony, this incident, in and of itself, bears upon whether or not Appellant has the requisite good character and reputation to be a licensed contractor. Appellant has worked as a roofer for most of his adult life, and testified that he was licensed roofing contractor some years ago in Arizona. At the hearing, other than by his own testimony and a letter from State Representative, Debra Brimhall, Appellant did not provide any independent evidence as to his rehabilitation or present character and reputation in the community or in the roofing industry. There were no letters from family and friends, and no written statements from his employers 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.

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 felony 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 appears true that Appellant’s difficulties involve domestic disputes and purportedly some violence, which, by themselves in a proper case can be explained to such a degree that discretion to grant a license with specific conditions may at times be afforded. However, when presented with the circumstances of this felony conviction, the ongoing probationary period, and Appellant’s violation of probation and outstanding warrant, the provision of law that a contractor must not be found to have been convicted of a felony cannot be ameliorated even with credible explanation. Appellant’s ability and qualifications to install roofing systems in residential and commercial structures is not the basis for the denial of the application in this case. The issue bears upon the question of good character and reputation. Knowing that the prior felony conviction established 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 a present 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 a 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. Appellant testified that he was wrongly convicted in Tennessee and that the case that led to his conviction and probation is about to be or has been dismissed. (No independent evidence of this fact was evinced at the heaing). If this is true then it would be appropriate at a latter time to bring this fact to the Registrar of Contractors attention; however, there remains the concern over the current violation of probation, a matter of some consequence when decisions must be rendered concerning character and reputation.

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. It is also recommended that the Registrar of Contractors waive the one year requirement for the filing of a new application under A.R.S. §32- 1122E after six months from the effective date of this Order on the basis that Appellant’s involvement with the law has not represented any danger or loss to the public, provided that Appellant presents satisfactory evidence that all criminal cases referred in this decision have, in fact, been dismissed, including the charge of violation of probation. DONE AND ENTERED this day, September 20, 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 ___________________________ -----------------------

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