Vacate

2012A-4249-ROC · Registrar of Contractors · 2013-02-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

A hearing was commenced on this date on Respondent’s alleged failure to pay approximately $9,500 to Complainant in violation of A.R.S. § 32- 1154(A)(11).[1] Although the Registrar of Contractors (“the Registrar”) sent a copy of the Notice Hearing that set a hearing on this date at 1:00 p.m. to Respondent at its address of record and the hearing did not conclude until 2:15 p.m., Respondent did not appear or offer any evidence to defend its license. Complainant established the following: (1) DV Acquisition LLC DBA: Desierto Verde, License No. K-21.235834-D for landscaping and irrigations systems, which also did business under the name D V Municipal Maintenance (“Desierto Verde”), asked Complainant to provide dumpsters and trash removal from Desierto Verde’s business premises at 386 West Collumber Avenue, Gilbert, Arizona 85233; (2) Respondent’s member, Charles David Myers, is listed on the records of the Arizona Corporation Commission as D V Municipal Maintenance LLC’s statutory agent and manager and the only other member of D V Municipal Maintenance LLC is Charles Edward Emmenegger, who is listed as a member on Desierto Verde’s license, according to the Registrar’s public website; (3) Desierto Verde failed to pay Complainant $9,384.00 for dumpsters and waste disposal in connection with Desierto Verde’s operations as a landscaping contractor; (4) On or about August 8, 2012, the Maricopa County Justice Court, Maryvale Justice Court issued a judgment in that amount in Case No. CC2012- 012965RC against D V Municipal Maintenance LLC, Mr. Myers, and Mr. Emmenegger in the amount of $9,384.00; (5) Complainant filed a complaint with the Registrar against Desierto Verde for failure to pay $9,384.00, which resulted in a finding that Desierto Verde violated A.R.S. § 32-1154(A)(11) and the revocation of Desierto Verde’s license; (6) After the Registrar revoked Desierto Verde’s license, Mr. Myers and Respondent took over Desierto Verde’s business and office, but failed to pay anything to Complainant. The Administrative Law Judge noted that none of Complainant’s evidence established that Respondent, as opposed to Desierto Verde or D V Municipal Management LLC, contracted with Complainant for it to provide dumpsters and to remove landscape waste from Respondent’s business premises, which would preclude a violation of A.R.S. § 32-1154(A)(11). Complainant alleged that Mr. Myers was “license-hopping” by using Respondent’s license to continue Desierto Verde’s landscaping business. Because A.R.S. § 41-1092.05(D) does not allow the Administrative Law Judge to amend the Registrar’s Citation and Complaint,[2] the Administrative Law Judge informed Complainant’s representatives that she would remand the matter back to the Registrar to amend the Citation and Complaint to charge a violation of A.R.S. § 32- 1154(A)(21).[3] Respondent’s evidence at the hearing was the first mention of Desierto Verde, as opposed to D V Municipal Maintenance, in the record. After the hearing, the Administrative Law Judge consulted the Registrar’s public website and determined that Mr. Myers was not listed on Desierto Verde’s license and that no one who was listed on Desierto Verde’s License No. K- 21.235834-D was listed on Respondent’s License No. K-21.278454-D. Nonetheless, Complainant’s evidence makes it appear that Mr. Myers through Respondent and its associations with Desierto Verde and related business entities is carrying on the business of a contractor whose license has been revoked for a violation of A.R.S. § 32-1154(A)(11). In light of Complainant’s evidence of Mr. Myer’s association with Desierto Verde and associated business entities, IT IS ORDERED vacating the remainder of the hearing on the merits and remanding this matter to the Registrar with the recommendation that the Citation and Complaint be amended to charge possible violations of A.R.S. §§ 32-1154(A)(7),[4] 32-1154(A)(10),[5] and 32-1154(A)(20).[6] The Registrar then may refer the matter back to the Office of Administrative Hearings for a hearing on the merits at which both parties may present evidence on the statutory violations charged in the amended Citation and Complaint. Done this day, February 4, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Copy mailed/e-mailed/faxed February 5, 2013 to:

William A. Mundell, Director Registrar of Contractors c/o Legal Department 1700 W. Washington Street, Suite 105 Phoenix, AZ 85007

Chuck Myers The Artisan Group LLC 384 W Cullumber Ave Gilbert AZ 85233-4915 Fax: 480-423-0303

Glenn Weinberger Weinberger Waste Disposal 3425 S 43rd Ave Phoenix AZ 85009-6038 e-mail: [email redacted]

By: Cruz Serrano

----------------------- [1] A.R.S. § 32-1154(A)(11) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.” [2] A.R.S. § 41-1092.05(D) provides as follows: The agency shall prepare and serve a notice of hearing on all parties to the appeal or contested case at least thirty days before the hearing. The notice shall include: 1. A statement of the time, place and nature of the hearing. 2. A statement of the legal authority and jurisdiction under which the hearing is to be held. 3. A reference to the particular sections of the statutes and rules involved. 4. A short and plain statement of the matters asserted. [3] A.R.S. § 32-1154(A)(21) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[h]aving 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.” [4] A.R.S. § 32-1154(A)(7) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[t]he doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [5] A.R.S. § 32-1154(A)(10) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]iding or abetting a licensed or unlicensed person to evade this chapter, knowingly combining or conspiring with a licensed or unlicensed person, allowing one’s license to be used by a licensed or unlicensed person with intent to evade this chapter.” [6] A.R.S. § 32-1154(A)(20) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[s]ubsequent discovery of facts which if known at the time of issuance of a license or the renewal of the license would have been grounds to deny the issuance or renewal of the license.”

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