ALJDEC decisions subject to certification as final

2012A-2480-ROC · Registrar of Contractors · 2012-07-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 3, 2012, at 8:00 a.m. APPEARANCES: Applicant appeared through its authorized representative, Carlos Humberto Monreal. The Registrar of Contractors was represented by Assistant Attorney General Montgomery Lee, Esq. 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. Ample Air Conditioning And Heating LLC (hereinafter “Applicant”) has filed an application for a C-39R license. 2. Carlos Humberto Monreal (hereinafter “Mr. Monreal”) is listed as the qualifying party and sole member of the Applicant. 3. Mr. Monreal is also listed as a qualifying party and employee on the license application of Acme Home Services LLC.[1] 4. On April 25, 2012, the Registrar of Contractors denied the Applicant’s license application based upon the following: 1. Carlos Humberto Monreal has had a license refused within one year before submitting a new application in violation of A.R.S. § 32-1154.A.13, namely A.R.S. § 32-1122.E.

2. Carlos Humberto Monreal has failed to establish good character and reputation as required by A.R.S. § 32-1154.A.13, namely A.R.S. § 32-1122.D.[2]

5. Applicant disagreed with the Registrar of Contractors’ decision to deny its license application and requested an administrative hearing. 6. The Registrar of Contractors then forwarded the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. Mr. Monreal testified that he was originally listed as qualifying party/employee on Acme Home Services LLC’s license application that the Registrar of Contractors denied on December 5, 2011. Mr. Monreal stated that he had disassociated himself from the license application of Acme Home Services LLC before the Registrar of Contractors denied the license application. 8. Mr. Monreal filed a Notice of Disassociation/Resignation from Acme Home Services LLC with the Registrar of Contractors on or about November 17, 2011.[3] 9. Mr. Monreal acknowledged that he knew that there was a commonality of ownership of Acme Home Services LLC and Abode Air LLC. Mr. Monreal testified that he was unaware of the fact that Abode Air LLC had its contractor’s license revoked on September 7, 2011, in Case No. 2010- 15713528 and revoked again on September 15, 2011, in Case No. 2011-3767. Mr. Monreal stated that he disassociated from Acme Home Services LLC due to its ties to Abode Air LLC. Mr. Monreal acknowledged that he knew that Abode Air LLC had “issues.”[4] 10. Lawrence Mathews (hereinafter “Mr. Mathews”) is Chief of the Licensing Department for the Registrar of Contractors. Mr. Mathews stated that he supervised the investigation of Applicant’s license application. 11. Mr. Mathews testified that Applicant’s license application was denied because qualifying party/member Mr. Monreal was also named on a previous license application that had been filed by Acme Home Services LLC that was denied within one year of the license application at issue.[5] 12. Mr. Mathews acknowledged that Mr. Monreal filed a Notice of Disassociation/ Resignation from Acme Home Services LLC with the Registrar of Contractors on or about November 17, 2011. Mr. Mathews stated that the provisions of A.R.S. § 32-1167 that allowed voluntary disassociation were not applicable to license applicants. Mr. Mathews testified that even if the provisions of A.R.S. § 32-1167 allowing voluntary disassociation were applicable to license applicants, the Registrar of Contractors did not receive a required Notice of Disassociation/Resignation of qualifying party from Acme Home Services LLC.[6] 13. Mr. Mathews testified that from the Registrar of Contractors’ perspective, Mr. Monreal remained as qualifying party on the license application for Acme Home Services LLC through the time of the December 5, 2011 Denial of License Application for Acme Home Services LLC.[7] 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. Mr. Monreal filed a Notice of Disassociation/Resignation from Acme Home Services LLC with the Registrar of Contractors on or about November 17, 2011. The Registrar of Contractors did not take any action to approve Mr. Monreal’s Notice of Disassociation/Resignation as qualifying party from Acme Home Services LLC and Mr. Monreal remained as qualifying party on the license application for Acme Home Services LLC when its license application was denied. The Registrar of Contractors’ express powers coupled with the legislative mandate to protect the public support a conclusion by this Tribunal that the Registrar of Contractors can refuse to allow a qualifying party listed on a license application to dissociate/resign from the license application. See Simms v. Napolitano, 205 Ariz. 500, 502, 73 P.3d 631, 633 (App. 2003). 4. A.R.S. § 32-1167(A) provides as follows:

If a person who qualified for a license ceases for any reason whatsoever to be connected with the licensee, both the licensee and the qualifying party shall notify the registrar in writing within fifteen days after such disassociation.

5. The Registrar of Contractors did not receive the required Notice of Disassociation/ Resignation of qualifying party from Acme Home Services LLC in this matter. This Tribunal concludes that even if the provisions of A.R.S. § 32-1167(A) were applicable, Acme Home Services LLC failed to comply with the provisions of A.R.S. § 32-1167(A). 6. A.R.S. § 32-1122 provides, in pertinent part, 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.

7. Mr. Monreal was listed as the qualifying party for the license application of Acme Home Services LLC when it was denied by the Registrar of Contractors on December 5, 2011. This Tribunal concludes that Mr. Monreal has had a license application refused within one year before he submitted Applicant’s license application in violation of A.R.S. § 32- 1154(A)(13), namely A.R.S. § 32-1122. RECOMMENDed order In view of the foregoing, it is recommended that the Registrar of Contractors’ 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, July 19, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit No. R-1 (Acme Home Services, LLC, Application for Contractor’s License). [2] Exhibit No. 2 (4/25/12 denial of license application). [3] See Exhibit No. 1A (11/17/11 Notice of Disassociation/Resignation). [4] 7/3/12 Hearing Record (hereinafter “H.R.”) at 29:00-33:37.

[5] H.R. at 37:48-38:23. [6] H.R. at 41:04-43:37. [7] H.R. at 45:49-46:30.

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