ALJDEC decisions subject to certification as final

2012A-3074-ROC · Registrar of Contractors · 2013-01-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 3, 2013, at 8:15 a.m. APPEARANCES: Charles Mark Ciangura II dba Longhorn Builders (hereinafter “Complainant”) appeared on his own behalf. Ginger Jeanette Hickle (hereinafter “Ms. Hickle”) dba J and J Plumbing Co. (hereinafter “J and J”) appeared on her own behalf. 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. J and J is the holder of License No. C37R.097823-R issued by the Registrar of Contractors. 2. Complainant is the holder of License No. B-2.138770-C issued by the Registrar of Contractors. 3. Complainant filed a formal complaint against J and J alleging that J and J improperly utilized Complainant’s license number, without Complainant’s authorization or knowledge, to obtain a grading permit for a commercial grading job at College Park Southern Baptist Church (hereinafter “the Church”). Complainant alleged that after the grading permit was obtained, J and J hired an unlicensed person to perform grading work at the construction project. 4. J and J denied the allegations and the matter was set for an administrative hearing. 5. Complainant’s friend, Michael Collins (hereinafter “Mr. Collins”), testified that he is a general contractor for Long Mountain Development (License No. KA.198069-D). Mr. Collins stated that he observed the construction project that was taking place at the Church. Mr. Collins opined that the construction project at the Church appeared to be a very substantial construction project. Mr. Collins testified that he would never hire an unlicensed person to be a subcontractor for any construction project.[1] 6. Complainant’s friend, Michael Finnegan (hereinafter “Mr. Finnegan”), testified the he took the photographs of the construction work that he observed being performed at the Church. Mr. Finnegan testified that the Church is close to where he lives. Mr. Finnegan stated that he took the photographs because he knew that Complainant was supposed to be performing the construction work at the Church and that Complainant’s license was on the line. Mr. Finnegan stated that he personally observed that Douglas Poole (hereinafter “Mr. Poole”) was performing grading work at the construction project.[2] 7. Complainant’s wife, Deborah Marie Elder (hereinafter “Ms. Elder”), testified that she observed Mr. Poole actually performing construction work at the Church. Ms. Elder stated that she saw no other contractor performing work at the construction site.[3] 8. Complainant testified that he had no knowledge that a permit application had been filed with the county listing Complainant as the contractor for the construction work at the Church. Complainant stated that J and J had applied for the construction permit utilizing Complainant’s license number and information without his knowledge or consent.[4] 9. Complainant’s testimony is found to be credible. 10. Complainant testified that he had prepared an informal bid for the construction project at the Church. Complainant stated that he did not submit any type of contract to perform the construction project because he had been informed that the project had been delayed. Complainant testified that no permit was posted at the construction project.[5] 11. Dennis Crinkright (hereinafter “Mr. Crinkright”) testified that he is the Senior Pastor at the Church. Mr. Crinkright stated that Ms. Hinkle was a member of the church committee for the construction project. Mr. Crinkright testified that Ms. Hinkle was not authorized to enter into construction agreements for the Church. Mr. Crinkright testified that the Church was performing the construction project as an “owner-builder.” Mr. Crinkright testified that Mr. Poole had donated his time at the construction project. Mr. Crinkright testified that at some point, he became aware that the county was requiring a permit for the grading at the construction project. Mr. Crinkright stated that he had no personal information regarding the permit application that had been filed with the county.[6] 12. Clifford Joseph Hickle (hereinafter “Mr. Hickle”) testified that he was an employee of J and J and that he had donated some of his personal time to the Church. Mr. Hinkle stated that he remembered being present during a conversation with the parties regarding the construction project. Mr. Hickle testified that he did not remember any statement that the construction project was being delayed. Mr. Hickle stated that the permit for the construction project was posted on the north side of the construction project on a power pole. Mr. Hickle testified that J and J had a long history of working with Complainant and that he did not remember ever having a written construction agreement with Complainant.[7] 13. Ms. Hickle testified she was not working as a licensed contractor at the construction project. Ms. Hickle stated that she was performing volunteer work as member of the Church. Ms. Hickle testified that she had turned down work at the Church because she knew that it was beyond the scope of her license. Ms. Hickle testified that she had more than one conversation with Complainant regarding the use of Complainant’s license number for the grading application. Ms. Hickle acknowledged that she told the county to put Complainant’s name on the permit application. Ms. Hickle stated that “everyone knows” that Mr. Poole is unlicensed. Ms. Hickle testified that Mr. Poole donated the use of his equipment and his time for the construction project. The Church paid for the fuel used by Mr. Poole. Ms. Hickle testified that all the work she performed at the construction project was as a member of the Church rather than as a licensed contractor.[8] 14. Ms. Hickle testified that the Church reimbursed J and J for construction materials and for the grading permit application fee. Ms. Hickle denied that J and J performed any work as a contractor for the Church. Ms. Hickle stated that the use of Complainant’s name in the permit application was an oversight.[9] 15. On or about December 9, 2011, J and J applied for a construction permit for the Church from the county. J and J knowingly provided Complainant’s license information to the county in support of the application for the construction permit. The county contacted the local office of the Registrar of Contractors and verified that the grading project could be performed under the scope of Complainant’s license and issued the construction permit. J and J paid the county for the construction permit.[10] 16. An assigned Agency Investigator has previously performed an investigation of Complainant’s complaint that Mr. Poole had performed unlicensed construction work at the Church. The Agency Investigator closed the complaint for the alleged violation of A.R.S. § 32-1151 (Prohibiting engaging in contracting without a license) due to lack of evidence.[11] 17. Administrative notice is taken of J and J’s prior license record as reflected on the Registrar of Contractors’ public website on January 16, 2013. Such prior license record reflects that License No. C37R.097823-R of J and J is current. License No. C37R.097823-R of J and J was suspended from August 18, 2007, through August 30, 2007, for lack of bond. 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. J and J performed contracting work at the construction project. J and J was paid for its material usage and was reimbursed for the cost of the construction permit that it obtained from the county building department. J and J knowingly represented to the county building department that it was obtaining a construction permit for Complainant. J and J knew that Complainant was not involved in the construction project and that the representation to the county was false. J and J knew that it could not have obtained the construction permit from the county without the false representation. The county issued a construction permit for the construction project based upon J and J’s false representation. Complainant suffered material damage to his business activities as a result of Complainant’s false representations to the county. This Tribunal concludes that J and J violated the charged provision of A.R.S. § 32-1154(A)(7).[12] 4. J and J knowingly allowed an unlicensed person to perform volunteer work at the construction project. There was no credible evidence that the unlicensed person was paid for his volunteer work. This Tribunal concludes that Complainant failed to meet his burden of proving a violation of the charged provision of A.R.S. § 32-1154(A)(10).[13] 5. J and J knowingly utilized Complainant’s license number and license information without Complainant’s knowledge or consent to obtain a construction permit from the county for the construction project at issue. J and J then proceeded to perform and oversee construction work performed pursuant to the fraudulently obtained construction permit. This Tribunal concludes that J and J violated the charged provision of A.R.S. § 32-1154(A)(17).[14] RECOMMENDed order In view of the foregoing, it is recommended that commencing on the effective date of the Registrar’s Order, License No. C37R.097823-R of J and J shall be suspended for a period of ten (10) days and that at the conclusion of the active suspension, License No. C37R.097823-R of J and J shall be placed on disciplinary probation for a period of one hundred and eighty (180) days. 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, January 17, 2013.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 1/3/13 Hearing Record (Hereinafter “H.R.”) at 8:00-12:25. [2] H.R. at 12:30-17:11. [3] H.R. at 17:30-19:50. [4] H.R. at 20:12-33:12. [5] H.R. at 33:13-42:43. [6] H.R. at 42:44-1:01:33. [7] H.R. at 1:01:34-1:16:58. [8] H.R. at 1:16:59-1:26:36. [9] H.R. at 1:26:37-1:31:44. [10] See Exhibit No. C-7 (Building permit and Permit Application Worksheet). [11] See Exhibit No. C-17 (Registrar of Contractors Investigation Unit Continuation Sheet and Checklist). [12] A.R.S. § 32-1154(A)(7) includes among the grounds for disciplinary action against a contractor’s license, the doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured. [13] A.R.S. § 32-1154(A)(10) includes among the grounds for disciplinary action against a contractor’s license, aiding or abetting a licensed or unlicensed person to evade this chapter, knowingly or recklessly combining or conspiring with a licensed or unlicensed person, allowing one's license to be used by a licensed or unlicensed person or acting as agent, partner, associate or otherwise of a licensed or unlicensed person with intent to evade this chapter. [14] A.R.S. § 32-1154(A)(17) includes among the grounds for disciplinary action against a contractor’s license, knowingly contracting beyond the scope of the license or licenses of the licensee.

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