ALJDEC decisions subject to certification as final

2012A-1004-ROC · Registrar of Contractors · 2012-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 18, 2012, at 8:00 a.m. APPEARANCES: Barry Kenneth Woods and Diane Wayne Woods/Woods Maintenance Services, Inc., appeared through its attorney, Joseph E. Dylo Esq., Rose Law Group PC. The Registrar of Contractors was represented by Elizabeth A. Campbell Esq., Assistant Attorney General. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. Barry Kenneth Woods and Diane Wayne Woods/Woods Maintenance Services, Inc., (hereinafter “Applicant”) have filed an application for a Class K- License. 2. On January 23, 2012, the Registrar of Contractors denied the Applicant’s license application based upon the following: Woods Maintenance Services Inc. dba Graffiti Control Systems has bid on two different contracts prior to itself being a licensed contractor in contravention of A.R.S. § 32-1123(A).

3. Applicant disagreed with the Registrar of Contractors’ determination to deny its license application and requested an administrative hearing. 4. The Registrar of Contractors then forwarded the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 5. A company owned by Barry Kenneth Woods named Graffiti Control Systems bid on a commercial project for construction services with the City of Mesa on May 19, 2010, providing a bid amount of $592,500.00.[1] 6. There was no dispute that Graffiti Control Systems at one time held a Class L-34 License issued by the Registrar of Contractors. 7. There was no dispute that the Class L-34 License once held by Graffiti Control Systems expired on February 2, 2000. 8. There was no dispute that neither Barry Kenneth Woods nor Graffiti Control Systems nor Applicant was licensed to perform contracting work in the State of Arizona on May 19, 2010. 9. On or about October 13, 2011, a company owned by Barry Kenneth Woods named Woods Maintenance Services, Inc., dba Graffiti Control Systems submitted a bid to the City of Tucson for graffiti abatement services. The letter of transmittal provides in pertinent part, as follows: Further, Woods Maintenance Services, Inc., is duly licensed to transact business within the states of California and Nevada. Graffiti Control Systems had previously held an L-34 painting contractors license number 100995 in the State of Arizona. We are currently in the process of reactivating that license.[2]

10. There was no dispute that neither Barry Kenneth Woods nor Woods Maintenance Services, Inc., dba Graffiti Control Systems nor Applicant was licensed to perform contracting work in the State of Arizona on or about October 13, 2011. 11. Barry Kenneth Woods (hereinafter “Mr. Woods”) testified that Woods Maintenance Services, Inc., dba Graffiti Control Systems submitted a bid to perform maintenance work for the City of Tucson pursuant to a September 22, 2011 Request for Proposal from the City of Tucson. Mr. Woods stated that in the initial September 22, 2011 Request for Proposal from the City of Tucson there was no requirement for licensure. Mr. Woods acknowledged that an addendum was added by the City of Tucson on October 7, 2011, specifying that a contractor’s license was required before the award of the contract.[3] 12. Mr. Woods acknowledged that a representative of Woods Maintenance Services, Inc., dba Graffiti Control Systems attended a pre-proposal conference with the City of Tucson on October 5, 2011. Mr. Woods stated that no requirement for a contractor’s license was mentioned during the pre-proposal conference and that he did not believe at that time that a contractor’s license would be required to submit a proposal. Mr. Woods acknowledged that a contractor’s license would be required at the time the contract from the City of Tucson was awarded.[4] 13. Mr. Woods testified that Applicant submitted its license application to the Registrar of Contractors on November 15, 2011, to comply with the bid requirements of the City of Tucson.[5] 14. Mr. Woods testified that he received a Cease and Desist Order from the Registrar of Contractors in December 2011, as a result of Applicant’s bid that was submitted to the City of Tucson.[6] 15. Mr. Woods testified that the City of Tucson issued written notification on January 5, 2012, that the Request for Proposal was canceled and no award would be made.[7] 16. Mr. Woods testified that the City of Tucson had allocated $37,500.00 per month for graffiti abatement in the Request for Proposal. Mr. Woods stated that Applicant would have charged for its work on a per square foot basis with a minimum charge per occurrence. Mr. Woods stated that the monthly cost could have been less than the monthly amount allocated by the City of Tucson for graffiti removal.[8] 17. Mr. Woods acknowledged that Applicant submitted a bid for a commercial construction project to the City of Mesa during May 2010. Mr. Woods testified that he did not feel Applicant had to be licensed with the Registrar of Contractors because the City of Mesa Request for Proposal did not specify that a contractor’s license was required.[9] 18. Lawrence Mathews (hereinafter “Mr. Mathews) testified that he is the Chief of the Licensing Department for the Registrar of Contractors. Mr. Mathews testified that the Registrar of Contractors received a protest against the issuance of a license to Applicant which precipitated the investigation by the Registrar of Contractors which led to the denial of the license application.[10] 19. Mr. Mathews testified that the type of construction work specified in the City of Tucson Request for Proposal and the City of Mesa Request for Proposal would have required a contractor’s license.[11] 20. Mr. Mathews testified that Applicant’s license application was denied primarily as a result of the bid for construction work that Applicant submitted to the City of Tucson.[12] CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. 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). 3. A.R.S. § 32-1123 provides as follows: E. To obtain a license under this chapter, a person shall not have had a license refused or revoked, within one year before the person's application, or shall not have engaged in the contracting business, nor shall the person have submitted a bid without first having been licensed within one year before the person's application, nor shall a person act as a contractor between the filing of the application and actual issuance of the license. The registrar may find any of those actions or circumstances to be excusable if there was reasonable doubt as to the need for licensure or the actions of the applicant did not result in an unremedied hardship or danger or loss to the public. A person who has been convicted of contracting without a license is not eligible to obtain a license under this chapter for one year after the date of the last conviction. 4. On or about October 13, 2011, Applicant submitted a bid to the City of Tucson for graffiti abatement services. Applicant was not a licensed contractor in the State of Arizona on October 13, 2011. Applicant submitted its license application to the Registrar of Contractors on November 15, 2011. This Tribunal concludes that Applicant is not eligible to receive a contractor’s license within one year of the date of the October 13, 2011 bid submitted by Applicant to the City of Tucson.

RECOMMENDed order In view of the foregoing, it is recommended that the Registrar of Contractor’s denial of Applicant’s license application be upheld and affirmed. 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, August 2, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit No.R-1 (City of Mesa Award Recommendation). [2] See Exhibit No. R-4 (City of Tucson Request for Proposal, Letter of Transmittal). [3] 7/18/12 Hearing Record (hereinafter “H.R.”) at 12:17-13:30. [4] H.R. at 14:16-18:34.. [5] H.R. at 24:15-25:53. [6] See Exhibit No. C-2 (12/21/11 Cease and Desist letter). [7] See Exhibit No. C-1 (1/5/12 City of Tucson letter). [8] H.R. at 42:00-43:25.. [9] H.R. at 38:00-39:50. [10] H.R. at 49:00-54:21. [11] H.R. at 56:30-56:47. [12] H.R. at 1:15:40-1:15:55.

-----------------------

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