August 8, 2013
IN THE MATTER OF STANLEY NICHOLS, t/a ALL ABOUT PAVING & SEAL COATING FOR REGISTRATION AS A HOME IMPROVEMENT CONTRACTOR.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted November 26, 2012.
On appeal from the Division of Consumer Affairs, Department of Law and Public Safety.
Swenson & Doyle, attorneys for appellant Stanley Nichols (Craig C. Swenson, of counsel and on the brief).
Jeffrey S. Chiesa, Attorney General, attorney for respondent Division of Consumer Affairs (Andrea M. Silkowitz, Assistant Attorney General, of counsel; Frank J. Marasco, Deputy Attorney General, on the brief).
Before Judges Fasciale and Maven.
Appellant Stanley Nichols, t/a All About Paving and Seal Contracting, 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. The agency's determination was based on Nichols' conviction for third-degree Theft by Deception, False Impression, N.J.S.A. 2C:20-4(a), resulting from Nichols' participation in a scheme to defraud an elderly man out of thousands of dollars by demanding the advance of monies for unnecessary home repairs.
The underlying facts as found in the hearing record are as follows. On January 27, 2009, a municipal police department was contacted by an eighty-one-year-old resident who reported that on six occasions between December 10, 2008 and January 24, 2009, various men came to his residence to advise him that his home was in need of repair. The victim claimed that after doing little or no work on the residence, the men would demand several thousand dollars in cash as payment. On January 29, 2009, the victim contacted the police to inform them that he had again been contacted by phone and there was a demand for $4700 in cash. Officers advised the victim to arrange to meet the contractor at a pre-arranged location. Upon arrival of the male caller, the victim identified him as one of the men who had taken money from him. The individual, later identified as Stanley J. Nichols, was then arrested. In a post-Mirandaconfession, Nichols admitted to contacting the victim in an effort to collect $4700 in cash for work not completed on the victim's home. Nichols was sentenced to a two-year term of probation, and required to complete seventy-five hours of community service, maintain full-time employment, and pay fines and penalties for this offense.
The Contractors Registration Act (Act), N.J.S.A. 56:8-136 to -152, governs the registration of home improvement contractors. The Act requires every home improvement contractor to register with the Director of the Division of Consumer Affairs. N.J.S.A. 56:8-138(a).
N.J.S.A. 56:8-141(b)(6) states that "[t]he 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." 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 [D]irector 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.
Nichols does not dispute that his conviction for attempted theft by deception constituted a "crime involving moral turpitude" and "relat[ed] adversely to the activity regulated by [the] [A]ct, " 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 (Acting Director) in considering whether to grant Nichols' 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 the evidentiary hearing, including Nichols' testimony, the indictment, plea form, transcript of Nichols' plea allocution, judgment of conviction and reasons for sentencing, the adult presentence report, a letter from Nichols' probation officer, personal and business reference letters, transcripts of the testimony of detectives, and Nichols renewal application, the Acting Director issued a nine-page decision and concluded that Nichols had not made this demonstration. In reaching this conclusion, the Acting Director discussed the offense committed by Nichols 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:
. . . [Nichols] has not provided evidence to demonstrate clearly and convincingly that he has been rehabilitated, with consideration to the factors contained in N.J.S.A. 56:8-141(f).
On appeal, the scope of our review of such an agency determination is "limited." Circus Liquors, Inc. v. Governing Body of 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.
Nichols 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." Ibid. Therefore, we affirm substantially for the reasons set forth in the Acting Director's decision. Despite Nichols' assertions that he lacks any prior criminal history, completed probation early, and has been rehabilitated, the Acting Director did not abuse his discretion in reaching his conclusion.