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.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 was committed;
(6) Whether the offense was an isolated or repeated incident;
(7) Any social conditions which may have contributed to the offense; and
(8) Any evidence of rehabilitation, including good conduct in prison or in the community, counseling or psychiatric treatment received, acquisition of additional academic or vocational schooling, successful participation in correctional work-release programs, or the recommendation of persons who have had the individual under their supervision.
The Director considered each of the statutory factors in the following manner:
While the Act provides that the Director may refuse to issue a registration upon proof that the applicant has been convicted of a crime involving moral turpitude or any crime relating adversely to the activity regulated by the Act, it also requires the Director to consider whether the applicant has demonstrated clear and convincing evidence of the individual's rehabilitation. N.J.S.A. 56:8-141f. Based upon my review of the entire record, including my personal observation of the applicant's credibility, I conclude that the applicant has not met his statutory burden of showing clear and convincing evidence of rehabilitation.
The factors as enumerated in the statute and my consideration of each, are as follows:
(1) The nature and responsibility of the position which the convicted individual would hold.
The business of home improvement contracting involves performing services in homes of individuals where complete trust is often granted and children of any age or gender may be left unattended. Home improvement contractors often work unsupervised in areas of the home not attended by adults.
(2) The nature and seriousness of the offense.
There can be no question that the offenses of second degree aggravated sexual assault and third degree endangering the welfare of a minor who was under Respondent's care are both serious offenses and that the failure to register involves an act of dishonesty. Respondent has admitted that he knew of his obligation and purposely neglected to register as it made him uncomfortable. The offenses are particularly troubling in the context of an applicant who would, as part of his function as a home improvement contractor, work relatively unsupervised in a customer's home where young children are expected to be.
(3) The circumstances under which the offense occurred.
Respondent abused a position of trust as the care giver of a 7 year old girl and committed sexual assault against her. Respondent has acknowledged that he was abusing drugs and alcohol at the time of the offenses but claims he no longer partakes of such substances; however, he has not provided objective evidence of his sobriety. Respondent admits a knowing violation of his obligation to register as a Megan's Law offender.
(4) The date of the offense.
The underlying offenses occurred in 1988 and 1989 which is more than fifteen years ago and somewhat remote, but the failure to register occurred in 1999 approximately seven years ago.
(5) The age of the individual.
Respondent was 23 or 24 at the time of the initial offenses which may be considered to be youthful in some circumstances, but he was caring for and in the role of a parent to his seven year old stepchild at the time and should have acted responsibly. Given the nature of the offense, Respondent's age cannot be considered a mitigating factor. In addition, Respondent was 35 at the time of the failure to register as a Megan's Law Offender conviction and youth was certainly not a factor in causing this dishonest behavior.
(6) Whether the offense was an isolated or repeated incident.
Respondent submitted a transcript of his allocution when he entered his plea which reveals that he admitted to committing aggravated sexual assault and endangering the welfare of a child "during the years 1988 and 1989" clearly suggesting that although there was one conviction, the incident was not isolated. The presentence report and psychological reports state that the offense took place over at least a 5 week period. Even if the conviction is considered to be one incident, nearly ten or so years later, Respondent exhibited his dishonesty by failing to register as a Megan's Law Offender.
(7) Any social conditions which may have contributed to the offense.
Respondent testified that he was involved in the abuse of drugs and/or alcohol but did not offer any social conditions that caused his behavior. Although not a social condition, there was no credible evidence presented that would tend to show that drug or alcohol abuse caused Respondent to sexually assault this 7 year old girl under his care.
(8) Any evidence of rehabilitation.
The evidence of rehabilitation identified above including copies of letters of recommendation obtained in 2002 and the current personal reference and business references along with his dance proficiency certificate and his acceptance into the architecture degree program at NJIT are some indication of Respondent's character. The record does not, however, demonstrate clearly and convincingly that the factors that caused Respondent to engage in his misconduct no longer exist. Indeed, even Dr. Witt expressed concern about opining on the risk of recurrence based upon Respondent's self report that there was only one incident. Respondent's lack of candor about the severity of the offensive touching and his failure to register as a seX offender also raise questions about whether he accepts full responsibility for his crimes. Respondent's suggestion that completion of his term of incarceration is, by itself, proof of his rehabilitation is misplaced.
Despite the evidence submitted and considering the factors identified above, I am not clearly convinced of Respondent's rehabilitation. Marcano only provided one current personal letter of recommendation, failed to submit any corroborating evidence of the activities he has engaged in since his sentence in order to maintain his status as a law abiding citizen, and has provided limited information addressing the eight factors required by N.J.S.A. 56:8-141f to be considered as demonstrating rehabilitation.
Since the business of home improvement contracting involves performing services in homes of individuals where complete trust is often granted and unsuspecting individuals may leave children unattended while registered contractors are in their homes, it is incumbent upon the Division of Consumer Affairs to assure that the contractors with prior criminal convictions who are registered show clear and convincing evidence of rehabilitation. In light of Mr. Marcano's convictions for sexual assault and endangering the welfare of a child, serious crimes involving moral turpitude, and his failure to register as a Megan's Law offender, all of which relate adversely to the activity regulated by the Registration Act, coupled with the lack of any corroborating evidence of his abstinence from drugs and alcohol, which Marcano suggests, were contributing factors to the initial criminal offenses, the fact that Mr. Marcano submitted only one recent personal reference and has not submitted to a current psychological evaluation in which an expert in the field might opine regarding the level of risk he poses of re-offending in the context of this profession, he has not shown clear and convincing evidence of rehabilitation.
Obviously, appellant supplied substantial evidence supporting his claim of rehabilitation, but his burden was to prove rehabilitation by clear and convincing evidence. More specifically, he was obliged to provide evidence of sufficient quality and amount as to engender in the Director "a firm belief or conviction as to the truth" of his claim; evidence that was "so clear, direct and weighty and convincing as to enable [the fact finder] to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue." In re Registrant J.G., 169 N.J. 304, 330-31 (2001) (internal quotation marks omitted). We note that the Director's determination included a provision allowing appellant to reapply when and if he can supply additional evidence establishing his rehabilitation.
The scope of our review is narrow. We cannot overturn an administrative determination unless we are satisfied that it is arbitrary, capricious or unreasonable, or based on findings that are not supported by the evidence. Campbell v. Dep't of Civil Serv., 39 N.J. 556, 562 (1963). Although this is a close case, that principle does not warrant a reversal here, particularly in light of the heavy burden of persuasion placed on an applicant in these circumstances and the Director's conclusion that appellant can reapply based on additional rehabilitation evidence.
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