ALJDEC

01F-R0193-ROC · Registrar of Contractors · 2001-09-19

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 18, 2001 APPEARANCES: Respondent : Arthur Thruston II, President and Qualifying Party, represented Majestic Homes, Inc. Registrar of Contractors : Blair Driggs, Assistant Attorney General, State of Arizona. 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 (number 137013) of Custom Home Concepts, Inc., first on May 28, 2001 and then on June 4, 2001, as a result of complaints filed against that license and two hearings of the merits of the complaints, respectively, in the matter of Citation and Complaint 00-2878 and Citation and Complaint M01-0131. Arthur LaRoy Thruston II was the Qualifying Party identified on the license, the license having been issued by the Registrar on July 10, 1998. 2. Mr. Thruston II, Respondent herein, is also the Qualifying Party named on license number 138040, a Class B- (General Residential Contracting) license issued on August 17, 1998. 3. The undisputed evidence reveals that Respondent is currently operating in his business under a license issued by the Registrar albeit Respondent 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 M01-0131 due to financial hardship. Respondent is otherwise willing to pay the sum that is outstanding and for which license No. 137013 was revoked in case number 00-2878, effective May 28, 2001, as well to make the requisite repairs that necessitated an Order of revocation in case number M01-0131, effective June 4, 2001. However, the matter has been litigated and the Orders have been issued. 5. The weight and sufficiency of the evidence is unrebuttably clear that Respondent is named as Qualifying Party on a license currently in active status despite Respondent’s having been identified as Qualifying Party on another license that has been and is currently revoked.

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 licenses . . . 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). 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. 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.[1] Further, the standard of proof is that of the “preponderance of the evidence”.[2] 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.”[3] The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion, in this case the Registrar of Contractors, is more probably correct on the issue(s) in dispute. Observing these standards, the Registrar has borne its burden of demonstration, by a preponderance of the evidence, that Respondent is in violation of relevant statute by continuing to function as a contractor despite having his contractor’s license revoked in a previously litigated matter.

RECOMMENDED ORDER In view of the foregoing, it is recommended that the Registrar of Contractors enter an Order revoking license number 138040, the evidence demonstrating that Respondent is in violation of A.R.S. ( 32-1154(A)(21).

Set forth this 19th day of September in the year 2001. OFFICE OF ADMINISTRATIVE HEARINGS

______________________________________ Gary B. Strickland Administrative Law Judge

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

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

By ___________________________

----------------------- [1] Culpepper v. Arizona Board of Nursing, 187 Ariz. 431, 930 P.2d 508 (App. 1997); See also Ariz. Admin. Code R2-19-119 (B). [2] Smith v. Arizona Department of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985); See also Ariz. Admin. Code R2-19-119 (A). [3] In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). See also, J. Livermore, R. Bartels, & A. Hameroff, LAW OF EVIDENCE ( 301.1(4th ed. 2000) (One party bears the overall burden of persuasion on each fact material to the party’s claims and defenses. Further, the party with the burden of persuasion on a particular fact is required to satisfy the burden of production of enough qualitative evidence sufficient to support a finding of the existence of the fact, following a reasonable person standard.)

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