ALJDEC decisions subject to certification as final

07F-R0020-ROC · Registrar of Contractors · 2008-01-07

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 26, 2007 APPEARANCES: Complainant: Assistant Attorney General Mona Baskin appeared on behalf of the Registrar of Contractors. Respondent: Anthony Lawrence Lima, member and qualifying party, appeared, pro per. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. On May 29, 2007, Complainant Registrar of Contractors (“Complainant/ROC”) filed a Citation and Complaint against Respondent Long Grove Construction Company, LLC (“Respondent”) alleging possible violations of A.R.S. §32-1154A (21) in that Respondent “has persons listed on its license who are listed on a license that is revoked.” 2. At the hearing, Complainant submitted Exhibits 1A, 1B, 2A, 2B, 2C, 3A, 3B, 3C, 3D, 4A, 4B, 4C, 4D, 4E, 5A, 5B, 5C, 5D, 6A, 6B, 6C and 6D which were marked, admitted and considered. Complainant offered the testimony of no witnesses and rested on the substance of these exhibits. 3. Anthony Lawrence Lima (“Lima”), member and qualifying party, appeared and testified on behalf of Respondent but submitted no exhibits. 4. Respondent holds Arizona Contractor’s License No. 198632, Class B (General Residential) which the Registrar of Contractors issued on August 7, 2004. 5. The undisputed evidence demonstrated that Lima is listed as a corporate officer and the qualifying party for Arizona Contractor’s License No. 150643, Class B issued November 24, 1999 to Old Chicago Builders, Inc. (“Old Chicago”). 6. It is further undisputed that: a. On January 11, 2005, the Registrar of Contractors revoked Old Chicago’s License No. 150643 pursuant to a default Decision and Order in Case No. 05-0532. b. On January 11, 2005, the Registrar of Contractors revoked Old Chicago’s License No. 150643 pursuant to a default Decision and Order in Case No. 05-0373. c. On February 1, 2005, the Registrar of Contractors revoked Old Chicago’s License No. 150643 pursuant to a default Decision and Order in Case No. 05-0473. d. On December 29, 2005, the Registrar of Contractors revoked Old Chicago’s License No. 150643 pursuant to a Decision and Order in Case No. 03-2147. 7. Lima testified, inter alia, that he had encountered some rough times while doing business as Old Chicago which resulted in the demise of that enterprise along with adversely affecting his marriage. Lima further testified that in an attempt to make a living he started over as the Respondent entity.

CONCLUSIONS OF LAW 1. The Registrar of Contractors is empowered pursuant to the provisions of A.R.S. §32-1154A (21) to impose disciplinary penalties against a holder of a contracting license on which a person, as defined in A.R.S. §32-1101A (5), had also been listed as a person on another license that had been previously revoked by the agency. 2. The Registrar of Contractors has the burden of establishing a violation of A.R.S. §32-1154A (21). 3. The uncontroverted evidence of record established that Lima, as a corporate officer and qualifying party for Old Chicago’s B License No. 150643, is a “person” listed on such license as defined in A.R.S. §32-1101A (5). Thus, it is determined and concluded that the Registrar has met its burden of proof in this matter. 4. The type and extent of penalty to be imposed, if any at all, is a matter within the sound discretion of the Registrar of Contractors. However, it must be remembered that “[t]he purpose of licensing contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts.” Better Homes Construction, Inc. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139, 1140 (App. 2002), citing Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999). In addition, the manifest purpose of the above-described statutory provisions is to prevent individuals from hopping between different licenses particularly when damage to others is caused by one entity. Moreover, Respondent has the burden of establishing mitigating circumstances for the undersigned to consider in reaching his recommended decision. 5. In this case, it is clear that the four (4) revocations of Old Chicago’s Class B license in Case Nos. 03-2147, 05-0473, 05-0532 and 05- 0373 were based on the failure to attend to corrective work. Moreover, in the latter three cases Old Chicago failed to timely file an answer to the respective citations and complaints which resulted in default decisions being entered against Old Chicago in those matters. At the hearing herein, Respondent presented no credible, probative and substantial evidence to explain Lima/Old Chicago’s failure to rectify its prior revocations by subsequent efforts to make those complainants whole. While this tribunal is cognizant of and sympathetic to the plight of contractors who experience downturns in business and concomitant personal difficulties, Mr. Lima’s explanation that he was simply attempting to start over and make a living under a new entity, i.e., Respondent, without more, demonstrates a quintessential example of “license hopping.” Based on the foregoing, the undersigned determines and concludes that Respondent failed to provide sufficient evidence of mitigating circumstances to warrant the closure of the issued citation without imposing a penalty.

RECOMMENDED ORDER In view of the foregoing, IT IS RECOMMENDED that Respondent’s Class B, license Number 198632 be revoked on the effective date of the Registrar’s Order herein.[1] Done this day, January 7, 2008.

__________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ________________________ ----------------------- [1] In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

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