ALJDEC decisions subject to certification as final

2010A-20905286-ROC · Registrar of Contractors · 2010-09-23

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 21, 2010 at 8:00 a.m. APPEARANCES: The Complainant appeared through its authorized representative, Jacob Wilhoit. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order on are made: FINDINGS OF FACT 1. The Respondent is the holder License No. K-9.250227-D issued by the Registrar of Contractors. 2. The Complainant’s K-9.226483-D License has been previously revoked in ROC Case Nos. G08-0692, 09-2788 and 09-2866. 3. Credible testimony and evidence established that the parties have been embroiled in a contentious dispute for an extended period of time. 4. When the parties were unable to resolve their financial dispute the Complainant filed a complaint against the Respondent with the Registrar of Contractors. 5. The Complaint provides, in pertinent part, as follows: Brad was an owner of Superior Excavation & Concrete ROC226483 and the license has been revoked. Brad was on the corporation commission articles, recorded 2/28/09 document 02660261. Brad is also named in lawsuits from work done by Superior Excavation & Concrete. Case numbers, CV2008-007545, CV2008-025537, CV2009- 014455….Brad has not paid for the damages that he caused under the first license and therefore he should not be allowed a new license. 6. In response to the Complaint the Respondent filed an Answer which provides, in relevant part, as follows: A complaint has been filed against my license (Cornerstone Concrete Company) stating that I was named on a license that was suspended or revoked within a year of the issuance of my license. This is not the case; I would like this complaint to be dropped and no further action taken for two reasons. As you can see by the Arizona Registrar of Contractors records that I was NEVER listed under the license of Superior Excavation and Concrete LLC….Secondly, the complaint that was filed states a date range of -37 days. 7. At the hearing, the Complainant’s representative, Jacob Wilhoit, testified that Bradley David Kniep was a member and statutory agent of the Respondent and that the Respondent’s contracting license should be revoked or suspended pursuant to the applicable provisions of A.R.S. § 32- 1154(A) (21). 8. The Respondent, Bradley David Kniep, testified that he was an investor in Superior Excavation & Concrete LLC and that he lost a large amount of money as a result of his investment in the Complainant. Mr. Kniep denied that he was ever listed on the Complainant’s contracting license or the Complainant’s application for a contractor’s license. 9. During the hearing, the Respondent presented an Affidavit from the Licensing Department of the Registrar of Contractors. 10. The Affidavit (Exhibit No. R -1) provides, in pertinent part, as follows: Brenda Taylor being first duly sworn upon her oath deposes and says: That she is an employee of the Registrar of Contractors and is one of the custodians of the records of this department. That she has made a diligent search of the records of this department which discloses the following: That License No. ROC 226483, K-09 Concrete, was issued to Superior excavation [sic] and Concrete LLC on November 13, 2006 with Jacob Wilhoit as Member/QP owning 33%, Daniel Wilhoit as Member owning 33% and Christopher Rothert as Member owning 33%. That License No.ROC 226483 was suspended November 20, 2008 for lack of bond. That License No.ROC 226483 was revoked January 22, 2009 (G08- 0692), November 30, 2009 (09-2788) and January 25, 2010 (09-2866).

That License No.ROC 226483 documentation at the Registrar of Contractors has never listed Bradley Kniep as a member, owner or Qualifying party [sic] on this license. 11. The credible evidence of record is insufficient and fails to support a finding that the Respondent, Bradley David Kniep, has abandoned or left a contractor’s license that has been suspended or revoked and started a new company with a new contractor’s license. 12. The credible evidence of record is insufficient and fails to support a finding that Bradley David Kniep or any other person on the Respondent’s license owned a least twenty-five per cent of the stock or beneficial interest of the Complainant Superior Excavation and Concrete LLC. 13. The credible evidence of record is insufficient and fails to support a finding that Bradley David Kniep or any other person named on the Respondent’s license is also named on any license application for a contractor’s license in this state or any other state wherein such license is under suspension or revocation. 14. The credible evidence of record is insufficient and fails to support a finding that Bradley David Kniep or any other person named on the Respondent’s license is also named on any other license in this state or in another state which is under suspension or revocation. CONCLUSIONS OF LAW 1. A.R.S. § 32-1154(A) (21) provides as follows: A. 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. 2. A.R.S. § 32-1101.5 defines “person” as: “Person” means 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 a least twenty-five per cent of the stock or beneficial interest of a corporation. 3. The purpose of licensing contractors “is to regulate the conduct of contracting and protect the public from unscrupulous acts.” Beazer Homes Ariz., v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App.1999). 4. A.R.S. § 32-1154 (A) (21) appears geared toward preventing persons from license-hopping within Arizona or from state-to-state and preventing one whose license has been suspended or revoked from simply abandoning that license and starting a new company with a new license. Better Homes Construction Inc., v. Goldwater, No. 1CA-CV 01-0594(July 09, 2002, 203 Ariz. 295, 53 P.3d 1139, 1144 (App. 2002). 5. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 6. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). 7. Proof by preponderance of the evidence “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 (rev. 6th ed. 1990). 8. The Complainant failed to sustain its burden of proof to establish that the Respondent, Bradley David Kniep dba Cornerstone Concrete Company, violated the applicable charged section of the state’s contracting laws. Therefore, the evidence of record did not sufficiently sustain a finding of a violation by Respondent, Bradley David Kniep dba Cornerstone Concrete Company, of the provisions of A.R.S. §32-1154(A) (21), as charged in the Citation. RECOMMENDed order In view of the foregoing, it is recommended that this matter be dismissed. In the event of certification of this 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 the certification. Done this day, September 23, 2010.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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