ALJDEC

01F-R0119-ROC · Registrar of Contractors · 2000-10-13

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 12, 2000 APPEARANCES: Complainant : The Registrar of Contractors was represented by Montgomery Lee, Assistant Attorney General. Respondent : Neal Horenstein, Attorney at Law, represented T A M Construction, L.L.C.; Val Tsoukanov. ADMINISTRATIVE LAW JUDGE: Gary B. Strickland _____________________________________________________________________ Evidence and testimony were presented at the hearing and, based upon the entire record, the following Finding of Facts, Conclusions of Law, and Recommended Order are issued.

FINDINGS OF FACT 1. The Registrar of Contractors revoked the Class B- (General Residential Contractor) license (license number 129605) of T A M Construction on February 8, 2000, as a result of a complaint filed against that license and a hearing of the merits on the complaint in the matter of Citation and Complaint M99-1521. Valeri (Val) Tsoukanov was the Qualifying Party identified on the license, the license having been issued by the Registrar on November 24, 1997.

2. Mr. Tsoukanov, Respondent herein, is also the Qualifying Party named on license number 129604, a Class B-02 (General Small Commercial Contractor) license issued on November 24, 1997, and license number 147427, a Class L-60 (Finnish Carpentry) license issued on July 27, 1999.

3. The undisputed evidence reveals that Respondent is currently operating in his business under two licenses issued by the Registrar albeit he had been named on another license that is presently in revoked status, all in violation of A.R.S. ( 32-1154(A)(21).

4. Respondent offered testimony in an effort to mitigate Respondent’s accountability for the current status of his Class B- license and further to demonstrate that it was impossible for him to comply with the Registrar’s Order in the matter of Citation and Complaint M99-1521 due to financial hardship. However, the matter has been litigated and the Order has been issued.[1]

5. While it appears that Respondent may have possibly been ensnared by the unscrupulous behavior of an unprincipled, unlicensed third party, the fact remains that the Complainants in the matter of Citation and Complaint M99-1521 remain the true victims of the hapless affair.

CONCLUSIONS OF LAW 1. The evidence of record sufficiently established that Respondent is the subject holder of a license that has been revoked by the Registrar of Contractors.

2. A.R.S. ( 32-1154(A)(21) provides as a basis for discipline:

Having a person named on the license who is named on any other license in this state or in another state which is under suspension or revocation unless the prior revocation was based solely on a violation of this paragraph.

The evidence is indisputable that Respondent is named on a license that has been revoked after having been afforded the opportunity to litigate the allegation(s) that led to the Registrar’s Order. The statute imposes a duty (“The holder of a license . . . shall not commit . . . .” ; prefatory A. to ( 32-1154) upon a licensee not to violate any of the conditions for discipline set forth therein. The consequence for violation is suspension or revocation. Here, the Registrar seeks revocation, as is within the Registrar’s discretion pursuant to A.R.S. ( 32-1154(B), according to the argument made by the Assistant Attorney General at the hearing. It has not been shown that the Registrar’s exercise of discretion in the imposition of the maximum penalty available under the statute would be improper. The imposition of a lesser penalty would not inure to a furtherance of the Registrar’s duty to protect the public from the unscrupulous and/or less than diligent contractor.

3. The burden of proof generally at an administrative hearing falls to the party asserting a claim, right or entitlement or seeking to impose a penalty. Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). Further, the standard of proof is that of the “preponderance of the evidence”. Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “…more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). The evidence taken as a whole must convince the decision maker that the party who bears the burden, in this case the Registrar of Contractors, is more probably correct on the issue(s) in dispute. The Registrar has borne that burden.

RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar of Contractors enter an Order revoking license numbers 147427 and 129604, the evidence demonstrating that Respondent is in violation of A.R.S. ( 32- 1154(A)(21).

Set forth this 13th day of October in the year 2000.

______________________________________ Gary B. Strickland Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2000, to:

Registrar of Contractors Michael P. Goldwater Attn: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________

----------------------- [1] Respondent appealed the Registrar’s Order to Maricopa County Superior Court, his complaint in civil cause number CV2000001587 was dismissed by the Honorable J. Kenneth Mangum on April 25, 2000 for Plaintiff’s (herein, Respondent) failure to comply with A.R.S. ( 12-909.

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