ALJDEC

99F-L0009-ROC-res · Registrar of Contractors · 2000-01-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 11, 2000 APPEARANCES: Complainant was represented by Assistant Attorney General, Blair Driggs and Respondent appeared through its qualifying party, John Santagata, III (hereinafter referred to as “John”). ADMINISTRATIVE LAW JUDGE: Mark A. Silver _____________________________________________________________________

Evidence and testimony were presented and, based upon the entire record in this matter, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

1. Complainant filed the instant Citation and Complaint against Respondent, alleging that John misrepresented his felony criminal history on the original application submitted for licensure, that he also received a subsequent felony conviction and that based on these facts disciplinary action should be considered against Respondent’s license. These allegations are discussed in the findings below.

2. As authorized by A.R.S. § 32-1154A (20) the conduct of Respondent’s qualifying party, prior to issuance of the license, may provide a valid basis for disciplinary proceedings against Respondent, since any felony convictions would reflect adversely upon the good character requirement for licensure and/or renewal, as set forth in A.R.S. § 32-1122D.

3. The following salient facts were adduced at the hearing and are important to note: a. On May 13, 1992 John was convicted of possession of drug paraphernalia, a class 6 felony. He was placed on probation for this offense and ordered to pay a fine. b. On or about the latter part of August 1994, upon John’s motion, the Court entered an Order regarding the above-described criminal conviction, wherein the judgment of guilt was vacated, charges were dismissed, and John’s civil rights were restored. c. Based on receipt of the 1994 Order of the Court, John believed, albeit erroneously, that his record had been erased clean of the felony conviction and therefore, he would not have to reveal same on any application for employment or licensure. d. On or about April 28, 1997 John and his brother submitted the original application to the Registrar of Contractors for the above-cited license. Question no. 15 on the application specifically asked whether any person appearing on the license application had ever been convicted of a felony. Based on the aforementioned Court Order vacating his judgment of guilt, John erroneously answered this question with a “no.” e. Respondent’s Class B-3 license was originally issued by the Registrar on or about May 19, 1997. The license in question allows Respondent to act in the capacity of a general contractor for residential remodeling and repair. f. On April 8, 1998, John was convicted of endangerment, a Class 6 felony. As a result of this conviction, John was again placed on probation and ordered to pay a fine. In addition, due to this conviction, John has completed classes on substance abuse and motivational enhancement. g. On or about May 24, 1999, Respondent submitted an application to renew its license. On the renewal application, John revealed the 1998 felony conviction but still failed to list the aforementioned 1992 conviction. h. Based on the criminal conviction information in the renewal application, Complainant ran a criminal history check and discovered the 1992 conviction. Thus, based on these two felony convictions and the fact that both the original application and the renewal application failed to reveal the 1992 conviction, Complainant filed the instant Citation and Complaint. i. John testified at the instant hearing that he had a substance abuse problem with marijuana in the past but has not used this substance in the past three years. j. Regarding the 1992 conviction, John testified that he merely had ½ of a marijuana joint and a homemade pipe in his possession at the time of the arrest. k. Regarding the 1998 conviction, he apparently lost his temper with his girlfriend and did strike her in the face. She had to have surgery and he is paying for the surgery via restitution payments. He indicates that he still has a relationship with the woman, that she is the mother of his children and that he hopes to eventually marry her. l. Respondent has been in business for almost three full years and it was shown that the gross income of the company has doubled each year that it has been in business. John testified that the company does good work, satisfies all of its customers and that no complaints have been filed against the company.

4. The possession of drug paraphernalia conviction is almost eight (8) years old and the evidence of record supports a finding that John no longer has a substance abuse problem. The endangerment conviction is recent, however, the weight of the evidence of record is supportive of a conclusion that through counseling and the other court ordered requirements, John has learned his lesson regarding the need to control his anger and not strike another human being.

5. As set forth in the Citation and Complaint issued by the Registrar of Contractors, Respondent was advised that in the event of a finding of a violation against Respondent, Respondent’s prior disciplinary record of final Registrar of Contractors’ orders may be considered in mitigation or aggravation. Accordingly, subsequent to conclusion of the instant hearing, notice was taken of official records of the Registrar of Contractors regarding any prior final disciplinary orders against Respondent and said notice revealed that the instant complaint was the only complaint on the Registrar of Contractors’ current record regarding Respondent. Therefore, Respondent’s prior record is properly deemed to be excellent and thus, is viewed as a matter in mitigation for any disciplinary penalties to be imposed as a direct result of this case.

6. It is determined and held that John and his brother (the other partner in Respondent) are industrious and productive workers who have performed to the highest standards of the contracting business. Thus, although violations of the applicable charged sections of the State’s Contracting laws have been determined herein, the totality of the instant record militates against imposition of a revocation or suspension of Respondent’s license but merely some form of lesser disciplinary sanctions.

CONCLUSIONS OF LAW

1. In the case of Russell v. Maccabees Life Ins. Co., 268 Ariz. Adv. Rep. 51, 974 P.2d 443 (Ariz. App. 1998), the court held that “expungement of a conviction does not protect a person from having to disclose the fact of conviction.” The Court based their holding on the conclusion that expungement (order vacating judgment of guilt) in Arizona does not serve to obliterate or destroy the fact that a person had been convicted of a criminal offense. Thus, contrary to Appellant’s belief, an applicant is required to disclose a criminal conviction that was the subject matter of a subsequent court order vacating judgment of guilt. 2. By virtue of failing to disclose the 1992 felony conviction of John on the original and renewal license application, Respondent violated the provisions of A.R.S. § 32-1154A (6) in that it committed a material misrepresentation on said applications due to the consideration that said conviction would have had on the Registrar determining the good character requisite for Respondent’s qualifying party. Additionally, such evidence supported a determination that disciplinary action is appropriate and warranted pursuant to A.R.S. § 32-1154A (20). 3. The two felony convictions by Respondent’s qualifying party, described in the foregoing findings of fact, constitute violations of A.R.S. § 32-1154A (8).

RECOMMENDED ORDER

In view of the foregoing, it is recommended commencing on the effective date of the Order entered in this matter, that the Class B-3 license of Respondent shall be placed on a period of disciplinary probation for 180 days. It is further recommended, in addition to the above provided penalty, that any continuation of Respondent’s contracting rights, whether or not probationary, shall be subject to a condition that Respondent first post an additional surety bond, cash deposit or alternative deposit for a period of twenty four (24) months, including future renewal periods, in the amount of $1,500.00, such bond or deposit to be for the sole benefit of persons injured as defined in A.R.S. § 32-1131 (3) and to be in addition to the required surety bond, cash deposit or recovery fund participation set forth in A.R.S. § 32-1152 (D). Cash or alternative additional deposits, if utilized, shall be returned only after the expiration of an additional two year period following the above-provided twenty-four (24) month period and only if no claims are then pending.

Done this day, January 13, 2000

______________________________________ Mark A. Silver Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

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

By ___________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826