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In re Marcano

July 27, 2007

IN THE MATTER OF ROBERT MARCANO D/B/A ROBERT MARCANO CONTRACTORS.


On appeal from the Division of Consumer Affairs, Department of Law and Public Safety, 06-060.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted June 19, 2007

Before Judges Stern and Coburn.

Appellant, Robert Marcano, appeals from the October 19, 2006, final administrative decision of the Division of Consumer Affairs denying his application for registration as a home improvement contractor pursuant to the Contractors' Registration Act, N.J.S.A. 56:8-136 to -166 (the "Act").

After carefully considering the record and briefs, we are satisfied that that final administrative decision is supported by substantial evidence on the record as a whole. R. 2:11- 3(e)(1)(D). Nevertheless, we add the following comments. Appellant was convicted in 1991 of possession of marijuana, a disorderly persons offense. Two years later, he was convicted of second degree sexual assault, N.J.S.A. 2C:14-2(b), and third degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a). He received an aggregate sentence of imprisonment for seven years. In May 1999, he was convicted of fourth degree failure to register as a convicted sex offender, N.J.S.A. 2C:7-2. He is a Tier II offender and is subject to lifetime supervision under Megan's law. The 1993 conviction was based on his sexual attack on a seven-year old girl, who was the daughter of his girlfriend. He was twenty-four years old at the time, and admitted touching the girl's vagina with his hand. The victim reported that he had "fondled her vaginal area and digitally penetrated her vagina and rectum."

Two psychological assessments indicated that appellant had acknowledged extensive drug use before and at the time of the sexual attacks. A report generated at Avenel indicated that appellant admitted to a long history of abusing marijuana, cocaine, and alcohol, beginning at age fourteen. Appellant has been working as a home improvement contractor since he was twenty-one. He has been married for about ten years and has three children, but he and his wife were separated at the time of the administrative hearing. However, his wife indicated that he was a "loving and caring father," and that she trusted him with their children "without reservation."

Although he participated in support groups to address his drug and alcohol dependence in 1997 or 1998, he has not done so since. But he did offer to submit to drug tests to prove he was no longer using those intoxicants.

He obtained a high school diploma in 1994, and was accepted as a transfer student from Essex County College to New Jersey Institute of Technology for an architectural degree program. An associate attested to appellant's good work habits, and a longtime friend wrote that appellant no longer smokes, drinks, gambles, or uses drugs. A number of his recent clients stated that he had done good home improvement work for them. The Act provides that on or after December 31, 2005, no one can engage in the home improvement business unless registered with the Division of Consumer Affairs. N.J.S.A. 56:8-138(a). N.J.S.A. 56:8-141(b)(6) provides that the Division may refuse registration to someone who has been convicted of a crime involving moral turpitude or relating adversely to the relevant activity, in this case, performing home improvement work. But when the applicant has disclosed his criminal convictions, as is the case here, the refusal may not be based on those convictions if the applicant has "affirmatively demonstrated to the director [of the Division] clear and convincing evidence of . . . rehabilitation." N.J.S.A. 56:8-141(f). In making that determination, the Director is obliged to consider the following factors:

(1) The nature and responsibility of the position which the convicted individual would hold;

(2) The nature and seriousness of the offense;

(3) The circumstances under which the offense occurred;

(4) The date of the offense;

(5) The age of the individual when the offense ...


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