ALJDEC decisions subject to certification as final

2013A-1070-ROC · Registrar of Contractors · 2013-12-16

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 25, 2013 APPEARANCES: The Registrar of Contractors was represented by Assistant Attorney General Michael Raine. Respondent was represented by Ken Walsh. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made: FINDINGS OF FACT Boyce Landscape Management, Inc. (Respondent) holds License No. A-21.123139- C issued by the Registrar of Contractors (Registrar) on May 7, 1997. Jamin Ray Boyce is listed as the Qualifying Party and President and Melissa Joann Bennett is listed as the Secretary on License No. A-21.123139-C. Respondent holds License No. C-21.123138-R issued by the Registrar on May 7, 1997. Jamin Ray Boyce is listed as the Qualifying Party and President and Melissa Joann Bennett is listed as the Secretary on License No. C- 21.123138-R. On January 11, 2011, the Registrar revoked License No. C-21.123138-R issued to Respondent pursuant to a Decision and Order in Case No. 2010-8821633 for the failure to pay a $1,000.00 civil penalty. Respondent did not appeal the revocation. The Registrar entered a default order against Respondent in Case No. 08- 4535. Respondent appealed the default and the matter was remanded to the Office of Administrative Hearings. On March 8, 2013, the Registrar revoked License No. C-21.123138-R issued to Respondent pursuant to a Decision and Order in Case No. 08-4535 following a hearing on the matter. The matter is currently on appeal. CONCLUSIONS OF LAW This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. 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. “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). A.R.S. § 32-1154(A)(21) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license: Having a person named on the license who is or was named on any other license in this state or in another state that is under suspension or revocation for any act or omission that occurs while the person is or was named on the license unless the prior revocation was based solely on a violation of this paragraph.

There was no dispute that Jamin Ray Boyce and Melissa Joann Bennett are named on License No. A-21.123139-C and are also named on the revoked License No. C-21.123138-R. While Respondent argued the revocation of License No. C-21.123138-R was on appeal with respect to Case No. 08-4535 and should not be the basis of a disciplinary action in this matter, Respondent acknowledged the revocation of the license with respect to Case No. 2010-8821633 had not been appealed and was valid. This Tribunal concludes that Respondent is in violation of the charged provision of A.R.S. § 32-1154(A)(21). RECOMMENDed orders In view of the foregoing, it is recommended that Respondent Boyce Landscape Management Inc’s License No. A-21.123139-C be revoked on the effective date of the Order entered in this matter. In the event of certification of the 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 that certification. Done this day, December 16, 2013.

/s/ Tammy L. Eigenheer 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