ALJDEC decisions subject to certification as final

09F-2115-ROC · Registrar of Contractors · 2009-10-09

STATE OF ARIZONA OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 23, 2009

APPEARANCES: Complainant was represented by attorney Perry Casazza, accompanied by company Members Bryan Parks and Mike Kassemos; Respondent was represented by attorney Joel Sannes, accompanied by Member and Qualifying Party John Casey.

WITNESSES: For Complainant: Bryan Parks

For Respondent: John Casey

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action alleging wrongful conduct, misleading advertising, and contracting beyond the scope of its license by Respondent. Complainant alleges that Respondent wrongfully used Complainant’s license number on promotional documents. Complainant also alleges that Respondent performed work outside the scope of its license. Respondent denies any wrongful conduct or misleading advertising, and also denies that Respondent knowingly operated outside the scope of its license. This tribunal entered the complaint file received from the Registrar of Contractors into the record, along with Complainant’s Exhibits A through K and Respondent’s Exhibits 1 through 13. The parties presented evidence and testimony at the hearing. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Decision finding no violation of the cited law. FINDINGS OF FACT 1. Respondent is the holder of a class KB-01 dual general contracting license (No. 229492) issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform general contracting work on commercial or residential property except for certain specialty trades such as like electrical.[1] John Casey is Respondent’s Qualifying Party. Hereinafter “Respondent” will refer to either the company or John Casey or both, depending on context. 2. Complainant is an electrical contractor with a K-11 dual electrical contracting license number 197197 (hereinafter “the 197197 license”). Bryan Parks is the principal member and Qualifying Party for Complainant. Bryan Parks testified at the hearing[2] and his testimony is found to be generally not credible. The evidence shows that Parks fraudulently claimed to be an employee of Respondent in order to get health care insurance.[3] This reflects poorly on Parks’ character for honesty and renders his testimony unreliable. 3. At one time, the parties were working together to install solar energy equipment. Complainant acted as the electrical subcontractor for all projects. The testimony showed that Complainant used Respondent’s employees to do the electrical work, supervised by Bryan Parks. Complainant had no employees.[4] 4. In late 2007, Parks and Casey formed “GF Electric, LLC” with the intent to obtain an electrical specialty license to do all of Respondent’s electrical subcontracting work. Parks was supposed to be the Qualifying Party and get GF Electric licensed. Instead, Parks added “Green Fuel Electric” as a dba for the Complainant company with the ROC. Parks did not tell Casey that he had done this. 5. Casey reasonably believed that GF Electric, LLC, of which he was part owner, had obtained an electrical subcontracting license and was performing work as Respondent’s electrical subcontractor. He also reasonably believed that Parks was the Qualifying Party for GF Electric, LLC. 6. During this time, literature and other documentation was published by Respondent, some of which was written by Parks himself, that used “Eclipse Electric, LLC dba GF Electric LLC” and then listed the 197197 license.[5] Materials were also published (business cards and pamphlets) that used Respondent’s name with both Respondent’s KB-01 license number and Complainant’s K-11 license number (197197).[6] 7. This tribunal does not find the literature and materials to be so misleading that the public might be injured. At one time, the licenses were acting in concert to do the work. Casey credibly stated at the hearing that he stopped using the 197197 information once the breakdown of the Parks/Casey partnership occurred. 8. In early October 2008, Parks walked away from a job and told Casey to “find another qualifying party.” Respondent reasonably believed that Parks was resigning as Qualifying Party from GF Electric, LLC and that GF Electric, LLC was the electrical subcontractor on the job. Therefore, Respondent reasonably believed that it had 60 days to find a replacement qualifying party.[7] Respondent continued with the projects it was doing until Casey discovered the true situation, and then brought on another electrical subcontractor. 9. The evidence does not show that Respondent knowingly operated outside the scope of its license. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[8] Further, the standard of proof at hearing is by preponderance of the evidence.[9] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[10] Complainant has not met that burden. 2. The Citation and Complaint alleges violation of Arizona Revised Statutes (A.R.S.) § 32-1154(A)(7), which prohibits any wrongful act that substantially harms another; (A)(16), which prohibits misleading advertising that might injure the public; and (A)(17), which prohibits knowingly contracting beyond the scope of a license.[11] Here, Complainant claims that Respondent misled the public and knowingly performed work outside the scope of its KB-01 license. Neither of these claims has been shown. 3. Complainant has failed to show a violation of the cited contracting statutes by Respondent. 4. This matter should be dismissed. RECOMMENDED ORDER Based on the foregoing, it is hereby recommended that the Citation and Complaint against Respondent Green Fuel Technologies, LLC in case 09- 2115 be dismissed.

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 9th day of October 2009.

Office of Administrative Hearings

______________________________ Eric A. Bryant Administrative Law Judge

. . .

Copies mailed this ___ day of October 2009 to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________ ----------------------- [1] See, Arizona Administrative Code (A.A.C.) R4-9-104 for a description of dual license classifications. [2] He was the only witness in support of the complaint. [3] Exhibit 1. [4] This situation was inappropriate. Complainant must do the work himself or through employees or through a properly license subcontractor. This situation was not the basis for any of Complainant’s claims in its complaint. [5] Exhibit 6. [6] Exhibits B, C, and D. [7] See A.R.S. § 32-1167. [8] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [9] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [10] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [11] Complainant did not present any workmanship issues that would support a subsection (A)(3) violation, the other subsection cited in the Citation & Complaint.

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