ALJDEC decisions subject to certification as final

07F-R0025-ROC · Registrar of Contractors · 2007-02-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 12, 2007 APPEARANCES: Assistant Attorney General Mona Baskin represented Complainant Registrar of Contractors. Antonio Rodriguez appeared on behalf of Respondent A R Azteca Plumbing, L.L.C. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The question presented by this matter is whether Respondent A R Azteca Plumbing, L.L.C. violated A.R.S. § 32-1154(A)(21) as charged by the Arizona Registrar of Contractors in an October 12, 2006 Citation and Complaint. Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order. FINDINGS OF FACT 1. Respondent A R Azteca, L.L.C. (“Azteca”) is the holder of a Class K- license (No. 205765) issued by the Registrar of Contractors (“ROC”) on March 28, 2005. Antonio Rodriguez appears as qualifying party and member for Azteca. 2. On April 30, 2001, the ROC issued a Class K-37 license (No. 164634) to A R State Plumbing, L.L.C. (“State”). Antonio Rodriguez appears as qualifying party and president for State. 3. Mr. Rodriguez cancelled State’s license effective March 28, 2005. 4. The ROC revoked State’s Class K-37 license number 164634 on April 26, 2006 pursuant to a Decision and Order in ROC Case Number M06- 0957. 5. On October 12, 2006, the ROC issued a Citation and Complaint charging that Azteca was in violation of A.R.S. § 32-1154(A)(21). 6. A.R.S. § 32-1154(A)(21) provides: The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions:

21. 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.

7. In Case Number M06-0957, State’s license was revoked due to State’s failure to appropriately rectify the issues involved in the underlying complaint (Complainant requested that State pay restitution in the sum of $4,250.00) on or before the effective date of the Order entered by the ROC. 8. Mr. Rodriguez appeared at hearing and testified that he has resolved the underlying complaint and continues to have a working relationship with Complainant and that he can secure documentation from Complainant proving such. 9. The Administrative Law Judge finds that the appropriate penalty given the evidence presented at hearing, would be to suspend Azteca’s license until Azteca provides written proof to the ROC that the underlying case resulting in State’s license revocation has been rectified. CONCLUSIONS OF LAW 1. In this proceeding, the ROC bears the burden to prove, by a preponderance of the evidence, that Azteca violated A.R.S. § 32- 1154(A)(21) as charged by the ROC in its October 12, 2006 Citation and Complaint. See Arizona Administrative Code R2-19-119. 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). 2. Under A.R.S. § 32-1154(A)(21), a contractor is subject to discipline for “[h]aving a person named on the license who is named on any other license in this or another state that is under suspension or revocation . . . .” 3. A.R.S. § 32-1101(A)(5) defines “person” as “an applicant, an individual, a member of a limited liability company, a qualifying party, any partner of a partnership or limited liability partnership or any officer, director, qualifying party, trustee of a trust, beneficiary of a trust or owner of at least twenty-five percent of the stock or beneficial interest of a corporation.” 4. The evidence demonstrated that Mr. Rodriguez appears as qualifying party and member for Azteca and qualifying party and president for State. By virtue of these positions, Mr. Rodriguez is a person named on both Azteca’s and State’s licenses. See A.R.S. § 32- 1101(A)(5). Thus, Azteca stands in violation of A.R.S. § 32- 1154(A)(21) because a person named on its license, i.e., Mr. Rodriguez, is a person named on a license from this State that has been revoked, i.e., State. 5. The Administrative Law Judge concludes that no evidence exists to suggest that the revocation of State’s license is improper or that the revocation could not properly be used by the ROC as a basis to discipline Azteca’s license. 6. The Administrative Law Judge further concludes that under all of the facts presented by this case, the most appropriate disciplinary penalty for Azteca’s violation of A.R.S. § 32-1154(A)(21) is that Azteca’s Class K-37 license (No. 205765) be suspended until such time as Azteca can submit written proof to the ROC that the underlying matter leading to the revocation of State’s Class K-37 License Number 164634 has been rectified. RECOMMENDED ORDER Based on the foregoing, the Administrative Law Judge makes the following Recommended Order: Fifteen (15) days after the effective date of the Order entered in this matter, Azteca’s Class K-37 license (No. 205765) shall be suspended until such time as Azteca can submit written proof to the ROC that the underlying matter leading to the revocation of State’s Class K-37 License Number 164634 has been rectified. 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 will be 40 days from the date of that certification. Done this day, February 20, 2007.

______________________________________ Sondra J. Vanella Administrative Law Judge

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

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

By ___________________________

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