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In the Matter of the Application of John Wayne Miller T/A

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


February 18, 2011

IN THE MATTER OF THE APPLICATION OF JOHN WAYNE MILLER T/A REMODELING TECHNOLOGIES, L.L.C. FOR RENEWAL OF REGISTRATION AS A HOME IMPROVEMENT CONTRACTOR.

On appeal from the New Jersey Division of Consumer Affairs, Docket No. 09-033.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued by Telephone February 4, 2011

Before Judges Parrillo and Skillman.

Appellant John Wayne Miller t/a Remodeling Technologies, LLC, appeals from a final decision of the Division of Consumer Affairs which denied an application for renewal of his registration as a home improvement contractor. This denial was based on appellant's conviction for attempted endangerment of the welfare of a child, in violation of N.J.S.A. 2C:24-4.

Appellant's conviction was based on his efforts to engage in a sexual liaison with a girl whom he believed to be twelve years old. In August 2005, and again from March 2006 through April 2006, appellant engaged in sexually explicit conversations over the internet with a Passaic County Internet Crimes Unit detective who posed as a twelve year old girl. During one of these conversations, appellant instructed the detective, whom he believed to be a minor child, to masturbate while they chatted. Appellant also invited the purported child to view a live webcam of him masturbating. Appellant subsequently arranged to meet the girl near the basketball court of a park, whereupon he was arrested.

Appellant was sentenced to a three-year term of imprisonment for this offense. He is now subject to parole supervision for life under Megan's Law, N.J.S.A. 2C:43-4(a), one of the conditions of which is that he "[r]efrain from initiating, establishing or maintaining contact with any minor." N.J.A.C. 10A:71-6.12(e)(1).

The registration of home improvement contractors is governed by the Contractors Registration Act. N.J.S.A. 56:8-136 to -152. Under this Act, every home improvement contractor is required to register with the Director of the Division of Consumer Affairs. N.J.S.A. 56:8-138(a).

The Director "may refuse to issue or may suspend or revoke any registration [under the Act] upon proof that the applicant or holder of the registration . . . [h]as been convicted of any crime involving moral turpitude or any crime relating adversely to the activity regulated by the act." N.J.S.A. 56:8-141(b)(6). However, the Act further provides:

Notwithstanding the provisions of [N.J.S.A. 56:8-141(b)(6)], no individual shall be disqualified from registration or shall have registration revoked on the basis of any conviction disclosed if the individual has affirmatively demonstrated to the director clear and convincing evidence of the individual's rehabilitation. In determining whether an individual has affirmatively demonstrated rehabilitation, the following factors shall be considered:

(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. [N.J.S.A. 56:8-141(f).]

Appellant does not dispute that his conviction for attempted endangerment of the welfare of a child constituted a "crime involving moral turpitude" and "relating adversely to the activity regulated by [the] act," within the intent of N.J.S.A. 56:8-141(b)(6). Consequently, the sole issue presented to the Acting Director of the Division of Consumer Affairs in considering whether to grant appellant's application for a renewal of his registration as a home improvement contractor was whether he had "affirmatively demonstrated" his rehabilitation by "clear and convincing evidence" under the factors set forth in N.J.S.A. 56:8-141(f).

Based on the evidence presented at an evidentiary hearing, which included appellant's testimony, parole reports, personal reference letters, and the reports of a psychologist who examined and tested him, the Acting Director of the Division of Consumer Affairs concluded that appellant had not made this demonstration. In reaching this conclusion, the Acting Director discussed the offense committed by appellant and the evidence of rehabilitation he presented in light of each of the eight factors set forth in N.J.S.A. 56:8-141(f). The Acting Director also stated:

. . . Applicant has not proffered any plan that would demonstrate how Miller, the sole employee and 100% owner of Applicant, intends to comply with the term of his parole requiring him to refrain from initiating, attempting to initiate, establishing, or maintaining contact with any minor, while conducting a home improvement business inside consumers' homes. The Acting Director is mindful of the finding and declaration of the Legislature in enacting the central registry provisions of Megan's Law that: "Knowledge of whether a person is a convicted sex offender at risk of re-offense could be a significant factor in protecting oneself and one's family members, . . . from recidivist acts by the offender." N.J.S.A. 2C:7-12.

Should Applicant be permitted to renew its registration as a home improvement contractor, Miller would be permitted to perform work in homes where minors may be present and where individuals typically exhibit complete trust that may leave them vulnerable to someone who has been convicted of a serious sex offense who has not shown by clear and convincing evidence that he is rehabilitated.

On appeal, the scope of our review of such an agency determination is "limited." Circus Liquors, Inc. v. Middletown Twp., 199 N.J. 1, 9 (2009). Absent a "'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record, an administrative agency's final quasi-judicial decision should be sustained, regardless of whether a reviewing court would have reached a different conclusion in the first instance." Ibid.

Appellant has failed to make a clear showing that the Acting Director's decision to deny the application for renewal of his registration as a home improvement contractor is "arbitrary, capricious, or unreasonable, or lacks fair support in the record." Therefore, we affirm substantially for the reasons set forth in the Acting Director's decision. Despite appellant's assertion that he would not undertake to perform home improvement work in a home where there might be an unattended minor, the Acting Director did not abuse her discretion in concluding that appellant had failed to submit a plan that provided adequate assurance this would never happen.

The procedural arguments appellant presents under Point I and II of his brief are clearly without merit. R. 2:11-3(e)(1)(E). We only note that the Acting Director did not draw any adverse inference based on appellant's failure to call as a witness the psychologist who examined and tested him. She only noted in passing that "there was no opportunity" for the Division's counsel "to question [the psychologist's] conclusions" and then found that "the written opinions of the [psychologist] are insufficient to satisfy" the required affirmative demonstration of rehabilitation by "clear and convincing evidence" under the factors set forth in N.J.S.A. 56:8-141(f).

Affirmed.

20110218

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