ALJDEC decisions subject to certification as final

2013A-4806-ROC · Registrar of Contractors · 2014-03-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 11, 2014, at 1:00 p.m. APPEARANCES: The Arizona Registrar of Contractors (hereinafter “Registrar”) was represented by Assistant Attorney General, John Tellier. Hark General Contracting LLC (hereinafter “Hark,” “contractor,” or “Respondent”) was represented by its managing member, Kelly Beckner. 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 Background and Procedure The Registrar is authorized to impose disciplinary sanctions against a licensee for violations of Title 32, Chapter 10 of the Arizona Revised Statutes. On June 12, 2012, the Registrar issued License No. KB-1.277892-D to Hark. The license lists Kelly Beckner as Hark’s managing member.[1] On June 11, 2012, the Registrar issued License No. K-11.277409-D to KSB Technologies LLC, an Arizona limited liability company. The license lists Kelly Beckner as a member.[2] On June 12, 2012, the Registrar issued License No. A-17.276653-C to KSB Technologies LLC, an Arizona limited liability company. The license lists Kelly Beckner as a member and Qualifying Party.[3] On August 28, 2013, the Registrar revoked License Nos. K-11.277409-D and A- 17.276653-C of KSB Technologies LLC pursuant to a Default Decision and Order in Case No. 2013-2882.[4] Testimony of Adam Stafford, Esq. Adam Stafford, Esq. (hereinafter “Mr. Stafford”) testified that he is the Assistant Chief of the Legal Department for the Registrar. Mr. Stafford stated that he was familiar with License No. KB-1.277892-D issued to Hark.

Mr. Stafford testified that he was familiar with License Nos. K-11.277409-D and A-17.276653-C of KSB Technologies LLC. Mr. Stafford stated that on August 28, 2013, the Registrar revoked License Nos. K-11.277409-D and A- 17.276653-C of KSB Technologies LLC pursuant to a Default Decision and Order in Case No. 2013-2882. Mr. Stafford testified that Kelly Beckner is listed as a member on License No. K-11.277409-D and that Kelly Beckner is listed as a member and Qualifying Party on License No. A-17.276653. Mr. Stafford opined that Hark had violated the charged provision of A.R.S. § 32-1154(A)(21). Mr. Stafford’s testimony is found to be credible. Testimony of Kelly Beckner Kelly Beckner (hereinafter “Mr. Beckner”) testified that the Registrar revoked License Nos. K-11.277409-D and A-17.276653-C of KSB Technologies LLC because he failed to file a response to a “request to respond” within ten days. Mr. Beckner stated he never had a chance to show his side of the case on the underlying matters. Mr. Beckner testified that he is not the Qualifying Party for Hark’s License No. A-17.256091-C. Mr. Beckner acknowledged that he is a member of Hark. Mr. Beckner asserted that Hark should not be disciplined for the Default Decision and Order issued in Case No. 2013-2882. Mr. Beckner acknowledged that on August 28, 2013, the Registrar revoked License Nos. K-11.277409-D and A-17.276653-C of KSB Technologies LLC pursuant to a Default Decision and Order in Case No. 2013-2882. Mr. Beckner acknowledged that he is listed as a member on License No. K- 11.277409-D and that he is listed as member and Qualifying Party on License No. A-17.276653-C. Mr. Beckner testified that he failed to file an Answer for Case No. 2013- 2882 because the paperwork looked identical to similar papers he had seen the week before and he did not read all of the paperwork delivered to him. Mr. Beckner stated that he thought he would be able to go to a hearing and present his side of the case. Mr. Beckner acknowledged that he did not ask for a rehearing in Case No. 2013-2882. CONCLUSIONS OF LAW 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 is by a preponderance of the evidence. See A.R.S. § 41-1092(G);[5] A.A.C. R2-19-119.[6] 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) provides among the acts that licensees shall not commit the following: 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.

Hark has a person, Kelly Beckner, named on its contractor’s license, License No. KB-1.277892-D, who is also named on License Nos. K-11.277409-D and A-17.276653-C of KSB Technologies LLC that were revoked. The Registrar bears the burden of showing, by a preponderance of the evidence, that Hark has violated the charged provision of A.R.S. § 32- 1154(A)(21) and, thus, that the Registrar has grounds to discipline Hark’s contracting license.[7] The Registrar has met that burden. This Tribunal concludes that Hark has violated the charged provision of A.R.S. § 32- 1154(A)(21). RECOMMENDed order In view of the foregoing, it is recommended that License No. KB- 1.277892-D issued to Hark shall be revoked. 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, March 25, 2014.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] See Exhibit No. 2 (Hark’s application for KB-1 contractor’s license). [2] See Exhibit No. 3 (KSB Technologies LLC’s application for K-11 contractor’s license). [3] See Exhibit No. 4 (KSB Technologies LLC’s application for A-17 contractor’s license). [4] See Exhibit No. 5 (Default Decision and Order Re: KSB Technologies LLC). [5] A.R.S. § 41-1092(G) provides as follows:

G. Except as otherwise provided by law: 1. At a hearing on an agency's denial of a license or permit or a denial of an application or request for modification of a license or permit, the applicant has the burden of persuasion. 2. At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion. 3. At a hearing on an agency's imposition of fees or penalties or any agency compliance order, the agency has the burden of persuasion. 4. At a hearing held pursuant to title 41, chapter 23 or 24, the appellant or claimant has the burden of persuasion.

[6] A.A.C. R2-19-119 provides as follows:

A. Standard of proof. Unless otherwise provided by law, the standard of proof is a preponderance of the evidence. B. Burden of proof. Unless otherwise provided by law: 1. The party asserting a claim, right, or entitlement has the burden of proof; 2. A party asserting an affirmative defense has the burden of establishing the affirmative defense; and 3. The proponent of a motion shall establish the grounds to support the motion.

[7] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

-----------------------

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