ALJDEC decisions subject to certification as final

07F-M2298-ROC · Registrar of Contractors · 2008-03-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 11, 2007 APPEARANCES: The Complainant appeared in his own behalf. Lloyd Rabb, Esq., appeared for the Respondent. ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings of Fact 1. The Complainant, Mark Talbot, (Talbot), and the Respondent’s managing member, Jason Gibbs (Gibbs), are the principals for plumbing contractors licensed by the registrar of Contractors (ROC). 2. In August, 2001, Gibbs, was not licensed. He began working for the Complainant’s dual licensed plumbing company, Talbot Plumbing, Inc. 3. Gibbs testified he began as a self described “laborer” and after a short time, was given greater independence and responsibility. 4. According to Gibbs, after approximately six months as a laborer, he was often working alone and doing the work of a journeyman[1] plumber. According to the Respondent’s second application[2] with the Registrar of Contractors (ROC), it was at this time (after the six months working for Talbot), that Gibbs began working as a foreman/supervisor.

5. Talbot testified that he and Gibbs negotiated over the last nine months of Gibbs’ employment with Talbot (approximately early 2005 to September, 2005), for Gibbs to purchase the residential part of the Talbot Plumbing business. The negotiations were unsuccessful. 6. In September 2005, Gibbs inquired about potential contracts with Sonora Management Construction (Sonora), which had previously done some business with Talbot Plumbing. Sonora informed Talbot about Gibbs overtures and Talbot terminated Gibbs. 7. The parties had a dispute regarding vacation pay and Talbot subsequently paid Gibbs for one week vacation. 8. Gibbs as Member of Arizona Custom Plumbing LLC (Custom Plumbing), applied as Qualifying Party (Q.P.) for a K-37 (plumber’s) license from the ROC on October 28, 2005. 9. Gibbs listed his four years and one month employment with Talbot as a “foreman” in performing work on 320 residential and 40 commercial properties. He listed major duties as scheduling jobs, overseeing employees, hiring and firing, checking job completion, overseeing underground, rough and trim plumbing, and foreman of all housing/commercial projects. 10. On November 1, 2005 the ROC sent an inquiry to Talbot regarding the Gibbs application. 11. Talbot responded that Gibbs was a laborer/apprentice until the last year of employment when he was a foreman who scheduled work under Talbot’s supervision and helped in overseeing employees. Gibbs did not hire and fire, did not oversee all residential and commercial jobs done by Talbot, and the total number of jobs was incorrect.[3] 12. Gibbs spoke with the then head of the ROC Licensing Division, (Dick George) who informed Gibbs he might be best served by waiting a year before resubmitting the application as the Qualifying Party for Custom Plumbing. 13. Gibbs made Steven Reed (Reed)[4] a 25% Member of Custom Plumbing. Reed applied to ROC as the Q.P. for Custom Plumbing. Reed was also the Q.P. on a license(s) located in Pinetop, Arizona[5]. 14. On November 14, 2005, ROC issued a license to Custom Plumbing, with Reed as the Q.P and Custom Plumbing began business as a K-37 plumbing contractor. 15. In approximately May 2007, Reed resigned and Gibbs reapplied as the Q.P. for Custom Plumbing. 16. In his second application, Gibbs listed 1 year and 6 months experience as a licensed contractor with Custom Plumbing, 3 years 7 months as a foremen with Talbot, and six months as a laborer with Talbot. The residential and commercial projects with Talbot were reduced from the first application to 200 and 10 respectively and job duties with Talbot were modified by the word “some” hiring and firing, and checking completion of “some” jobs. 17. Gibbs contacted Talbot regarding contact information for Talbot in conjunction with Gibbs’ second application. Talbot informed Gibbs that he (Talbot) would not falsify any information (lie) for Gibbs even though Gibbs had not asked him to. 18. Someone at ROC[6] told Gibbs to submit an explanation regarding the relationship with Talbot. In approximately March, 2007 (Exhibit 7) Gibbs wrote a letter to ROC wherein he stated “Mr. Talbot and his wife informed me in no uncertain terms that they would see to it that my application would not get approved.” Gibbs does not recall the specifics of when and how this information was conveyed to him by the Talbots. It appears this is in part a subjective interpretation possibly based on more than one contact with Talbot including the contact where Talbot told Gibbs he would not provide inaccurate information to the ROC. 19. On April 10, 2007, ROC reviewed Gibbs’ letter and marked it “Exp. Ok ‘K-37’ PT[7]” (possibly for Paul Terek, see Exhibit 7). 20. Talbot became aware of Gibbs letter to ROC accusing Talbot of seeing to it that Gibbs’ application would not be approved. According to Talbot, it was this as much as anything, that caused him to file the instant Complaint. In addition, Talbot believes that but for the Gibbs letter, ROC would again have contacted him for verification of information given by Gibbs to ROC. Absent any query of Talbot by ROC, Gibbs version of his experience was accepted by ROC. 21. On May 23, 2007, the ROC approved Gibbs as the Q.P. for Custom Plumbing. 22. On June 4, 2007, Talbot file his Complaint with ROC alleging that Gibbs lied about his experience on his second application to ROC. 23. Exhibits five and seven are ROC Experience Requirements for an applicant. They set forth that all experience must be verifiable by a qualified and responsible person, such as a homeowner, employer, fellow employee, other journeyman, contractor union representative, building inspector, architect or an engineer[8]. The verifying person must have first hand knowledge of the Applicant’s experience and observed work done by the Applicant. Exhibit seven sets forth definitions of a journeyman (one who has completed an apprenticeship program, is an experienced worker and fully qualified and able to perform the trade without supervision), A foreman or supervisor is one who has the knowledge and skill of a journeyman and directly supervises physical construction. A contractor manages the daily activities of a construction business, including field supervision. 24. Exhibit three (from the ROC website), lists “four years of verifiable trade experience, a business Management and Trade Exam” as requirements for a K-37 license. 25. Talbot submitted journeyman requirements[9] that apply with the City of Phoenix. The document states an examination is required for any journeyman that applies with the City of Phoenix. This exhibit is insufficiently clear and of questionable relevancy in this case. It is given no consideration[10]. 26. Gibbs presented the testimony of three Arizona contractors to establish his competence and current experience in properly carrying out the responsibilities of a licensed contractor. Talbot also acknowledged that Gibbs was in a position to buy the company (Talbot Plumbing) meaning in the opinion of Talbot, Gibbs was qualified when they were negotiating in 2005. Conclusions of Law The Citation and Complaint alleges violations of A.R.S. §32- 1154(A)(6)material misrepresentation in obtaining a license, and (A)(7), a wrongful act with substantial injury. 1. The Complainant has the burden of proof, and the standard of proof on all issues is by a preponderance of the evidence. Vazzano v. Superior Court, 74 Ariz. 369, 249 P.2d 837 (Ariz. 1952); Culpepper v. State, 187 Ariz. 431, 930 P.2d 508 (App. 1996). A “preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence, §5 (1960). It 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). 2. The evidence in an administrative hearing must be “substantial, reliable and probative” (A.R.S. §41-1092.07(F)(1). This means the Complainant has the affirmative responsibility to present sufficient competent evidence to meet the preponderance standard. The less demanding evidentiary standard in the administrative hearing does not mean that any type of evidence is entitled to serious consideration or significant weight. 3. “Substantial evidence is evidence possessing something of substance and relevant consequence and which furnishes substantial basis of fact from which issues tendered can be reasonably resolved.” Black’s Law Dictionary, Special Deluxe Fifth Edition, (St. Paul Minn.: West Publishing Co., 1979) p. 1281, citing State v. Green, 218 Kan. 438, 544 P. 2d 356, 362. 4. Irrespective of whether Gibbs conduct would be determined to be wrongful, the Complainant has not proven substantial injury to another person (whether the public, the Complainant, or any other person). Therefore, in the context of (A)(7) whether Gibbs’ conduct was wrongful, is irrelevant. 5. This leaves (A)(6) as the sole allegation. The evidence suggests that Gibbs engaged in overstatement in his initial application. However, that application is not at issue. Gibbs second application is less grandiose but may still have some elements of “puffing” or experience inflation. The initial problem is that no one from the ROC was called to testify with respect to what ROC relied upon when Gibbs was approved as Q.P. Talbot argued that Gibbs did not accurately list his experience and simply did not have the required experience. Exhibit three only requires “four years of verifiable trade experience…”. It describes a journeyman as one who has completed an apprenticeship program, is an experienced worker and fully qualified and able to perform the trade without supervision, a foreman or supervisor is one who has the knowledge and skill of a journeyman and directly supervises physical construction. A contractor manages the daily activities of a construction business, including field supervision. It appears the Respondent has more than four years of trade experience, by his testimony Gibbs became a journeyman and foreman after six months[11], and had a year and a half as a contractor (Custom Plumbing). Absent some additional ROC standards, which standards were not established in this hearing, it is problematic what the ROC considered and what it gave weight to, when it approved Gibbs. The crucial words in the cited paragraph are “material misrepresentation”. In general, the words imply that the information is essential or critical in making a decision, that the information relied upon has a significant impact on the outcome of decision in that it would likely alter the decision had there been no misrepresentation. 6. Given the lack of substantial evidence in this case, it cannot be concluded that the Respondent materially misrepresented the information provided in obtaining a license. Recommended Order It is recommended the Citation and Complaint upon which it is based, be dismissed.[12] Done this day, March 12, 2008

______________________________________ Allen Reed Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

----------------------- [1] Ability to do the work of the trade after completion of an apprenticeship. A person is able to perform the work without supervision (see Exhibit 3 ROC Licensing Experience Requirements) . [2] In the first application Gibbs listed himself as a foreman for four years (his entire employment with Talbot). [3] Also, Gibbs listed of his cell phone number instead of Talbot’s number. According to Gibbs, this was simply a mistake on his part. [4] No relation to the ALJ [5] ROC website [6] The person was identified as possibly named “Lupe”. A Lupe Benitez was in the License Department according to Exhibit 3. [7] Or “PF” [8] This does not appear to be an exclusive list but the verification presumably requires someone who is familiar with the contracting/construction and the Applicant’s experience in the field. [9] Part of Exhibit 3 [10] It would appear the requirement is not mandatory but applies to a person wanting or needing an apprentice or journeyman license, possibly to apply for certain work with or obtain certain contracts from the City of Phoenix. The ALJ knows of no specific apprenticeship or journeyman standards governing the ROC licensing decisions. [11] The foreman claim (as to duration) is suspect but there is no evidence of a formal transition (graduation, certification etc.) from laborer to apprentice to foreman. Absent any clear and identifiable transition points, the assessment of when one passes from one level to another, becomes somewhat subjective and conjectural. [12] The Order is effective forty (40) days from the date of the Order or days from the date of certification if certified by the Director of the Office of Administrative Hearings.

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