ALJDEC decisions subject to certification as final

2013A-4577-ROC · Registrar of Contractors · 2014-02-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 7, 2014

APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General Michael Raine, accompanied by ROC Staff Attorney Jose Gill; Respondent was represented by its President and Qualifying Party Edward Rein.

WITNESSES: Jose Gill Edward Rein

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

This disciplinary action is brought against Respondent based on the revocation of another license that Edward Rein was associated with. The Citation and Notice of Hearing issued by the Registrar of Contractors (“Registrar” or “ROC”) alleges a violation for having a person on the license that has been on a revoked license or is on a suspended license. Respondent concedes the violation but requests that the license not be suspended or revoked. This tribunal entered the ROC’s marked Exhibits 1 through 14 into the record. Testimony was presented from the witnesses listed above. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding a violation and recommending provisional suspension. FINDINGS OF FACT 1. Respondent is the holder of License No. B.194204-R, a general residential contractor’s license issued by the ROC. The license was issued in March 2004 and is currently in good standing, having never been disciplined. It’s President and Qualifying Party is Edward Rein.[1] 2. In April 2008, Edward Rein was added as Qualifying Party to License No. KB-02.241953-D of Rip and Donahue Construction, LLC (“R&D”). 3. Complaints against R&D were filed for work done in 2008 and early 2009. The R&D license was cancelled in September 2009. On February 24, 2011, and March 10, 2011, the Registrar revoked R&D’s License No. KB- 2.241953-D pursuant to Decisions and Orders entered in Case Nos. 2010- 28433771 and 2010-[number redacted], cases that were the result of the two complaints filed for work done by R&D in 2008 and early 2009. 4. Rein testified at the hearing that he was unaware of the two complaints until the current action was filed. He had relied on the other principals of R&D to take care of problems or inform him of them, and they had not done so. 5. Rein stated that he is willing to correct the problems in the complaints, if that is still possible, or resolve the complaints another way. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, the ROC bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Notice of Hearing.[4] The ROC has met that burden. 2. The Citation and Notice of Hearing alleges violation of A.R.S. § 32-1154(A)(21) (prohibiting having a person named on the license who was also named on another license that is suspended or revoked). The evidence shows that violation. 3. Respondent’s prior record as a licensee shows that Respondent has held the license since 2004 and has never been disciplined. This is a great record. 4. The appropriate outcome for this matter is to allow Respondent an opportunity to correct or resolve the issues from the two complaints. If Respondent does not do so then its license should be suspended until it does. RECOMMENDED ORDER IT IS RECOMMENDED that License No. B.194204-R, held by Customwest, Inc. be suspended beginning the effective date of the Registrar’s Order until the Registrar receives, and accepts, written proof that Respondent has satisfied the persons who filed the complaints in ROC Case Nos. 2010- 28433771 and 2010-[number redacted]. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof on or before the effective date of the Registrar’s Order, the license revocation shall not take place and Case No. 2013-4577 shall be closed.

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, February 27, 2014.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Administrative notice is taken of the license histories of Respondent and R&D as reflected on the ROC’s public website on February 27, 2014. All findings regarding license information and history are based on the website information. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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