BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS

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					         BEFORE THE OFFICE OF ADMINISTRATIVE HEARINGS
                       STATE OF OREGON
                             for the
      DEPARTMENT OF PUBLIC SAFETY STANDARDS AND TRAINING


In the Matter of                             )       PROPOSED ORDER
                                             )
IKE CRUZ MENDIOLA                            )       OAH Case No. 110597


                              HISTORY OF THE CASE

       Mr. Ike Cruz Mendiola applied with the Department of Public Safety Standards
and Training (DPSST or the Department) on November 26, 2002, to be licensed as a
Polygraph examiner. On July 22, 2003, DPSST denied the application. Mr. Mendiola
requested a hearing on August 8, 2003. DPSST referred the matter to the Office of
Administrative Hearings (OAH) on September 4, 2003. OAH referred the matter to
Administrative Law Judge Ray Myers to hold a hearing and to issue a proposed order.

        The hearing took place on October 3, 2003, in Salem, Oregon. Assistant Attorney
General Timothy Thompson represented DPSST. Mr. Mendiola was present and
represented himself. Theresa King testified on behalf of DPSST. Mr. Mendiola testified
on his own behalf. The record closed on October 3, 2003, at the close of hearing.

                                         ISSUES

       Does Mr. Mendiola qualify under ORS 703.210 and OAR 259-020-0030 to be
licensed as a polygraph examiner trainee?

                               EVIDENTIARY RULING

       Exhibits A1 through A16 and R1 through R13 were admitted into evidence at
hearing.

                                 FINDINGS OF FACT

        1. Mr. Mendiola was arrested for harassment and resisting arrest on October 31,
1995. (Ex. A8.) On his application for a polygraph examiner’s license, Mr. Mendiola
failed to disclose that he had been arrested for harassment and resisting arrest in 1995.
(Ex A1.)

       2. Mr. Mendiola was convicted of Public Indecency on July 14, 2000. (Ex A5.)
On his application, Mr. Mendiola failed to disclose that he had been convicted for Public
Indecency. He did disclose that he had a misdemeanor conviction on July 14, 2000. (Ex.
A1.)


DPSST v. Mendiola
PROPOSED ORDER
Page 1 of 8
       3. On his application Mr. Mendiola falsely represented that he was a member of two
polygraph examiners’ organizations. (Ex A1.; Test. of King.)

        4. On his application, Mr. Mendiola represented that he had completed 80 polygraph
examinations. (Ex. A1.) These were test and mock examinations completed during training.
(Test. of King and Mendiola.)

       5. On his application, Mr. Mendiola falsely stated that he had worked for Advanced
Polygraph Solutions from 1992 to the present. (Ex. A1.) In fact Advanced Polygraph
Solutions did not exist until November 2002. (Test. of King.)

       6. Mr. Mendiola attached a business card to his application that indicated he is a
Polygraph Examiner and did not indicate his training status. (Test. of King; Ex. R12.)

                              CONCLUSIONS OF LAW

       Mr. Mendiola does not qualify under ORS 703.210 and OAR 259-020-0030 to be
licensed as a polygraph examiner trainee.

                                       OPINION

        The Department alleges that Mr. Mendiola is disqualified from being licensed as a
Polygraph Examiner trainee for seven reasons. In summary, those reasons are that he made
material misrepresentations on his application for licensure and that he has demonstrated an
inability or incompetency to carry on the duties of a Polygraph Examiner.

        ORS 703.210 sets forth the reasons the Department may deny a license. It states
in relevant part:
       The Department of Public Safety Standards and Training may refuse to
       issue, or may revoke or suspend the license of any person as a polygraph
       examiner or trainee, if it finds that the person:
       *****
       (3) Made a material misstatement in application for an original or renewal
       license under ORS 703.010 to 703.320;
       *****
       (5) Made any willful misrepresentation or employed any false or
       misleading advertising to obtain business or the services of a trainee;
       (6) Has demonstrated any inability or incompetency to carry out the duties
       of a polygraph examiner;




DPSST v. Mendiola
PROPOSED ORDER
Page 2 of 8
         The Department has adopted a rule further defining the meaning of inability or
incompetency to carry out the duties of a polygraph examiner. OAR 259-020-0030(1)(f)(A)
states in relevant part:

       (A) The following are indicators of inability or incompetence to carry out the
       duties of a polygraph examiner:
              (i) Illegal conduct involving moral turpitude;
              (ii) Conduct involving dishonesty, fraud, deceit, or misrepresentation;

       The Department alleges that Mr. Mendiola should be denied a license for the
following specific reasons:

               1. On his application, Mr. Mendiola failed to disclose that he had been
       arrested for harassment and resisting arrest in 1995. The Department contends
       that this alleged failure to disclose is a material misrepresentation and that the
       arrest demonstrates an inability or incompetency to carry out the duties of a
       polygraph examiner.

               2. On his application, Mr. Mendiola failed to disclose a conviction for
       Public Indecency. The Department contends that this alleged failure to disclose is
       a material misrepresentation and that the conviction demonstrates an inability or
       incompetency to carry out the duties of a polygraph examiner.

               3. On his application, Mr. Mendiola indicated that he had attended
       various colleges. The Department notes that a baccalaureate degree is required
       for licensure. It alleges that Mr. Mendiola misrepresented his credentials and that
       this misrepresentation is material.

             4. On his application, Mr. Mendiola falsely represented that he was a
       member of two polygraph examiners’ organizations when in fact he was not. The
       Department alleges that this statement is a material misrepresentation.

               5. On his application, Mr. Mendiola falsely represented that he had
       completed 80 polygraph examinations when he had not. The Department alleges
       that this is a material misrepresentation.

              6. On his application, Mr. Mendiola stated that he had worked for Advanced
       Polygraph Solutions from 1992 to the present when in fact Advanced Polygraph
       Solutions did not exist until November 2002. The Department alleges that this is a
       material misrepresentation.

               7. Mr. Mendiola attached a business card to his application that indicated he
       is a Polygraph Examiner and did not indicate his training status. The Department
       alleges that this is a willful misrepresentation.


DPSST v. Mendiola
PROPOSED ORDER
Page 3 of 8
        The burden of presenting evidence to support a fact or position is on the proponent
of the fact or position. ORS 183.450(2). Thus, the Department has the burden of proving
each allegation.

Arrest for harassment and resisting arrest

        Mr. Mendiola did not disclose his 1995 arrest. Considering the fact that the
application form asks the applicant to disclose not only convictions, but arrests “for violation
of any law,” I conclude that Mr. Mendiola’s failure to disclose the 1995 arrest is a material
misrepresentation. For this reason alone, he is disqualified from licensure. The Department
has sustained its burden of proof on this allegation.

Conviction for public indecency

        Mr. Mendiola only partially disclosed his conviction for public indecency. He did
not disclose the nature of the offense. Because the nature of the offense is specifically
requested on the application form, I conclude that failure to disclose it is a material
misrepresentation. For this reason alone, he is disqualified from licensure. The Department
has sustained its burden of proof on this allegation.

        Because it is a conviction for a crime involving moral turpitude, the conviction for
Public Indecency, in itself, is reason to disqualify Mr. Mendiola. In a recent attorney
discipline case, In re Nuss, 335 Or 368 (2003), the Oregon Supreme Court set forth the
following test for determining crimes of moral turpitude:

       When a lawyer is charged under ORS 9.527(2) with committing a
       misdemeanor involving moral turpitude, this court will apply the
       following test, remembering that the Bar bears the burden of proof. First,
       this court will consider whether the crime was intentional or knowing, as
       required by Chase. Second, this court will consider whether the accused
       lawyer's crime involved any of the following: fraud; deceit; dishonesty;
       illegal activity for personal gain; or "an act of baseness, vileness, or
       depravity in the private and social duties which a man owes to his fellow
       man, or to society in general, contrary to the accepted and customary rule
       of right and duty between man and man." Mason, 29 Or at 21 (internal
       quotation marks and citation omitted). If the Bar sustains its burden of
       proof as to both parts of the test, either because the crime itself
       "announces" those facts or because those facts actually and necessarily
       were resolved in the conviction, then the accused lawyer committed a
       misdemeanor involving moral turpitude.

Public Indecency is defined in ORS 163.465. It states:

       (1) A person commits the crime of public indecency if while in, or in view
       of, a public place the person performs:

DPSST v. Mendiola
PROPOSED ORDER
Page 4 of 8
       (a) An act of sexual intercourse;
       (b) An act of deviate sexual intercourse; or
       (c) An act of exposing the genitals of the person with the intent of
       arousing the sexual desire of the person or another person.
Mr. Mendiola was convicted of public indecency in a jury trial. At hearing, he admitted
that he had exposed his genitals, but testified that it was inadvertent. His testimony,
however is not persuasive. The fact that he was convicted of the crime establishes that it
was performed with intent. Thus, the first part of the Nuss test is satisfied.

         In addition, exposing one’s genitals with the intent of arousing oneself or others,
especially against the will of the others, is an act of baseness in the social duties to others
that is contrary to accepted and customary rule of duty between persons. Thus, I conclude
that Mr. Mendiola was convicted of a crime involving moral turpitude. The Department
has sustained its burden of proof on this issue.

Educational background

        I conclude that the Department has failed to prove that Mr. Mendiola made any
misrepresentation concerning his educational background. While it is true that the statute
requires that he have a bachelor’s degree, the application does not indicate that such a
degree is a requirement. The application merely requests a summary of education and a
certificate of course completion. Mr. Mendiola summarized his education, but did not
attach a certificate of completion. There is no indication that Mr. Mendiola was
attempting to mislead the Department in this part of his application. He merely failed to
provide requested documentation.

Membership in professional organizations

        Mr. Mendiola stated on his application that he was a member of two polygraph
examiner’s organizations. In fact, he was not. He had applied for membership at the
time of the application. This is a misrepresentation.

        Mr. Mendiola misrepresented the status of his membership in professional
organizations. In context of an application for licensure in the very profession in which he
professed to belong to professional organizations, I conclude that this misrepresentation is
material. For this reason alone, he is disqualified from licensure. The Department has
sustained its burden of proof on this allegation.

Polygraph examinations completed

       Mr. Mendiola indicated on his application that he had completed 80 polygraph
examinations. He admitted to Ms. King, however, that these examinations were test
exams and mock exams he completed during his training. Ms. King testified that these
examinations would not be considered completed polygraph examinations. There is no
evidence in this record that Mr. Mendiola was aware that the Department would not

DPSST v. Mendiola
PROPOSED ORDER
Page 5 of 8
credit such examinations. The application itself states only “total number of polygraph
examinations completed in entire polygraph experience.” Mr. Mendiola’s understanding
of that question is within reason. Therefore, I conclude that the Department has failed to
sustain its burden of proving that Mr. Mendiola misrepresented facts in this instance.

Work experience

       Mr. Mendiola stated on his application that he had worked for Advanced Polygraph
Solutions from 1992 to the present. The company did not even exist until November 2002.

        Mr. Mendiola testified that he had been self-employed in various endeavors since
1992 and that his reference to Advanced Polygraph Solutions was intended to encompass
all these endeavors. That explanation is not persuasive. He could easily have listed each
of those businesses by name. Instead he represented that he had worked for a polygraph
company for ten years. In the context of an application for licensure as a polygraph
examiner, I conclude that this is a material misrepresentation. For this reason alone, he is
disqualified from licensure. The Department has sustained its burden of proof on this
allegation.

Business cards

         Mr. Mendiola attached a business card to his application. While it does not
specifically state that Mr. Mendiola is a licensed polygraph examiner, it implies it. I
conclude that the business card is misleading advertising and is intended to be such. Thus,
it is a willful misrepresentation. For this reason alone, he is disqualified from licensure.
The Department has sustained its burden of proof on this allegation.

Summary

        I have concluded that Mr. Mendiola committed several material misrepresentations
on his application. His attitude towards truth is, at best, very flexible. As he testified in the
context of his business card, it would be bad advertising to indicate he was a trainee. He
also testified in the context of his professional memberships that he likes to get the ball
rolling even before everything is in place. Such an attitude towards truth seems out of
place in one who is licensed to operate a machine designed to determine truth. Thus, even
if he had not been convicted of a crime involving moral turpitude, the Department would
be remiss if it licensed him as a polygraph examiner.




DPSST v. Mendiola
PROPOSED ORDER
Page 6 of 8
                                   PROPOSED ORDER

          I propose that the Department issue the following order:

          Mr. Mendiola’s application for licensure as a trainee polygraph examiner is
denied.

                                           _______________________________________
                                               Ray Myers, Administrative Law Judge
                                                 Office of Administrative Hearings

ISSUANCE AND MAILING DATE                  _______________________________________

                                       EXCEPTIONS

       The proposed order is the Administrative Law Judge's recommendation to the
Oregon Department of Public Safety Standards and Training (Department). If you
disagree with any part of this recommendation, you may make written objections, called
"exceptions," to the recommendation and present written argument in support of your
exceptions. Exceptions and argument must be filed with the Department of Public Safety
Standards and Training not later than fourteen (14) days following the date of mailing of
the proposed order at the following address:

                                Director
                                DPSST
                                550 N. Monmouth Avenue
                                Monmouth, Oregon 97361

                                      FINAL ORDER

       After considering all the evidence, the proposed order, and the timely filed
exceptions, if any, the Department will issue the final order in this case. The final order
may adopt the proposed order prepared by the Administrative Law Judge as the final
order or modify the proposed order and issue the modified order as the final order (see
OAR 173-003-0665).

                                          APPEAL

      If you wish to appeal the final order, you must file a petition for review with the
Oregon Court of Appeals within sixty (60) days after the final order is served upon you.
See ORS 183.480 et seq.




DPSST v. Mendiola
PROPOSED ORDER
Page 7 of 8
                             CERTIFICATE OF SERVICE


I certify that on November 19, 2003, I served the attached Proposed Order by mailing
certified and/or first class mail, in a sealed envelope, with first class postage prepaid, a copy
thereof addressed as follows:


IKE CRUZ MENDIOLA
PO BOX 2771
HILLSBORO OR 97123

BY FIRST CLASS MAIL


TIMOTHY THOMPSON
CRIMINAL JUSTICE DIVISION
610 HAWTHORNE AVE SE STE 210
SALEM OR 97301

BY FIRST CLASS MAIL


THERESA KING
STANDARDS AND CERTIFICATION
DPSST
550 N MONMOUTH AVE
MONMOUTH OR 97361

BY FIRST CLASS MAIL




                                               _______________________________________
                                               Lucy Garcia, Administrative Specialist
                                               Office of Administrative Hearings
                                               Transportation Hearings Division




DPSST v. Mendiola
PROPOSED ORDER
Page 8 of 8

				
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