ALJDEC

01F-M02005-BTR · Board of Technical Registration · 2001-11-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 29, 2001 APPEARANCES: Assistant Attorney General Dawn Walton Lee for the Arizona State Board of Technical Registration; Billie C. Mills on his own behalf ADMINISTRATIVE LAW JUDGE: Lewis D. Kowal _____________________________________________________________________ FINDINGS OF FACT 1. On September 15, 2000, a disciplinary administrative hearing was held before Administrative Law Judge Casey involving the certificate of registration for civil professional engineering , Registration No. 02342, issued by the Arizona State Board of Technical Registration (Board) to Billie C. Mills (Respondent). 2. In a Recommended Decision issued by Administrative Law Judge Newcomb dated October 12, 2000, it was recommended that Respondent’s registration for the practice of civil engineering be restricted from any practice of structural designing, and that Respondent pay a $1,000.00 civil penalty to the Board. Administrative Law Judge Newcomb also recommended that Respondent not pay any restitution because of a ruling made by the Central Phoenix Justice Court. 3. In an Order dated November 16, 2000, the Board accepted the above- mentioned Recommended Decision, modifying it by providing as follows: Respondent shall, within ninety (90) days of the date of the entry of this Order, pay restitution in the amount of Four Thousand Five Hundred Dollars ($4,500.00) payable to Verle F. Naber and Wanda May. Respondent shall provide proof of such payment to the Board. Respondent shall, within ninety (90) days of the entry of this Order, pay the costs of investigation of this matter to the Board, in the amount of Two Thousand One Hundred Thirty Two Dollars ($2,132.00), by certified check or money order made payable to the Arizona State Board of Technical Registration. 4. In the above-mentioned Board Order, the Board adopted Administrative Law Judge Newcomb’s recommendation that Respondent pay a One Thousand dollar ($1,000.00) civil penalty to the Board for practicing land surveying without the proper registration. 5. Kathryn Fuller (Ms. Fuller), Investigations Manager for the Board testified that Respondent has failed to pay restitution to Verle F. Naber and Wanda May, Respondent has failed to pay the $2,132.00 costs of investigation to the Board, and Respondent has failed to pay the above- mentioned $1,000.00 civil penalty to the Board as required by the Board’s November 16, 2000 Order. 6. During the hearing, Respondent was adamant that he would not pay the Board the above-mentioned restitution, costs, and civil penalty because he believed that the Board incorrectly determined that he was practicing land surveying without a proper registration and because he believes that the Board does not have the authority to order restitution when he was successful in civil litigation initiated by Verle F. Naber in Central Phoenix Justice Court. 7. Ms. Fuller testified that she checked the Maricopa County Superior Court Records to determined if Respondent had appealed the above-mentioned Order of the Board and did not locate any such appeal. 8. During the hearing, Respondent conceded that he had not appealed the November 16, 2000 Board Order. 9. Ms. Fuller’s testimony, as set forth above, is determined to be credible. 10. It is determined that even if Respondent is correct in his assertion that the Board exceeded its authority in ordering restitution, Respondent cannot collaterally attack the Board’s November 16, 2000 Order in this proceeding. 11. During the hearing, Respondent attempted to collaterally attack the determinations made by the Board in the November 16, 2000 Order. However, the Administrative Law Judge ruled that the appropriateness of the Board’s November 16, 2000 Order was not within the scope of the instant hearing. 12. The weight of the evidence of record established that the Board’s November 16, 2000 Order is a final order of the Board . 13. The weight of the evidence of record established that Respondent has not complied with the terms of the November 16, 2000 Board Order by failing to make restitution, by failing to pay the Board’s costs of investigation, and by failing to pay a civil penalty. CONCLUSIONS OF LAW 1. The Board’s November 16, 2000 Order is a final order of the Board. 2. In the instant proceeding the Board has the burden of proving all issues by a preponderance of the evidence. See Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A preponderance of the evidence is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not." Black's Law Dictionary, 1182 (6th ed. 1990). 3. The Board met its burden of proving by a preponderance of the evidence that Respondent has failed to comply with the terms of the Board’s Order regarding a) restitution, b) payment to the Board for its costs of investigation, and c) payment of a civil penalty to the Board. 4. By failing to comply with the above-mentioned Board Order, Respondent is in violation of A.R.S. §32-150. 5. Pursuant to A.R.S. §§32-128 and 32-150, grounds exist to suspend or revoke Respondent’s P.E. (Civil) Registration #02342. RECOMMENDED ORDER Based on the above, it is recommended that on the effective date of the Order entered in this matter, Respondent’s P.E. (Civil) Registration No. 02342 shall be revoked unless on or before the effective date of the Order, Respondent complies with the November 16, 2000 Board Order by paying restitution in the amount of $4,500.00 to Verle F. Naber and Wanda May and providing proof of such payment to the Board, by paying $2,132.00 to the Board for the costs of its investigation, and by paying a $1,000.00 civil penalty to the Board. It is further recommended that if Respondent complies with the above on or before the effective date of the Order entered in this matter, then the above-mentioned registration revocation shall not be imposed but, instead, Respondent’s P.E. (Civil) Registration No. 02342 shall be suspended for a thirty day period, with such alternative penalty to commence on the effective date of the Order entered in this matter.

Done this day, November 14, 2001.

______________________________________ Lewis D. Kowal Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2001, to:

Board of Technical Registration Ronald W. Dalrymple 1990 West Camelback Road, Suite 406 Phoenix, AZ 85015

By ___________________________ -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826