ALJDEC decisions subject to certification as final

2013A-4807-ROC · Registrar of Contractors · 2014-02-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 7, 2014 APPEARANCES: The Registrar of Contractors (“Registrar”) was represented by Assistant Attorney General Seth T. Hargraves. Rage Electric, LLC (“Respondent”) was represented by Gilbert Elam. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ FINDINGS OF FACT 1. On July 26, 2007, the Registrar issued License No. K-11.232930-D to Respondent, an Arizona limited liability company. The license lists Gilbert Elam as a member and qualifying party. 2. Mr. Elam is also listed as the qualifying party and a member of KSB Technologies, L.L.C., whose License No. K-11.277409-D was revoked by the Registrar on August 28, 2013, in Case No. 2013-2882. Mr. Elam was listed on License No. K-11.277409-D at the time of revocation. 3. The Registrar issued a Citation and Notice of Hearing in Case No. 2013- 4807 charging Respondent with having Mr. Elam listed on its license when Mr. Elam was also listed on a revoked license. The matter was forwarded to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 4. The Registrar presented its case through the testimony of Adam Stafford, Esq., the Registrar’s Assistant Chief of the Legal Department, and four exhibits consisting of the following: (i) Respondent’s Application for Contractor’s License & License; (ii) The Citation and Notice of Hearing in Case No. 2013-4807[1]; (iii) Default Decision and Order Vacating Hearing issued in Case No. 2013-2882 involving KSB Technologies, LLC, as Respondent; and (iv) Registrar license detail sheet for KSB Technologies, LLC’s revoked license. 5. Respondent presented its case through the testimony of Mr. Elam and Kelly Beckner. 6. The Administrative Law Judge took notice of the Registrar’s electronic record filed with the Office of Administrative Hearings. 7. Mr. Stafford testified that Mr. Elam was still listed on KSB Technologies, LLC’s License No. K-11.277409-D as the qualifying party and a member at the time that license was revoked. Mr. Stafford further testified that Mr. Elam is still named on the license. 8. The evidence of record established that the Registrar has not received written notice from KSB Technologies, LLC and Mr. Elam that Mr. Elam has been disassociated as qualifying party and member from License No. K-11.277409-D. 9. Mr. Beckner testified that he filed the necessary paperwork with the Arizona Corporation Commission to remove Mr. Elam as a member for KSB Technologies, LLC. He claimed that he also filed a written of notice of Mr. Elam’s disassociation from License No. K-11.277409-D as both the qualifying party and a member, but he was unable to produce a copy of such alleged filing. 10. Mr. Elam testified that he was not aware of the statutory requirement that he file a written notice of his disassociation as the qualifying party for License No. K-11.277409-D. He assumed that it was the responsibility of KSB Technologies, LLC to remove him from the license. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case pursuant to A.R.S. §§ 32-1101 to 32-1170.02. 2. Pursuant to A.R.S. § 41-1092.07(G)(2), the Registrar has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119. 3. Mr. Elam and KSB Technologies, LLC failed to comply with the requirements of A.R.S. § 32-1167 by failing to give the Registrar written notice of Mr. Elam’s disassociation as the qualifying party for License No. K-11.277409-D within 15 days of his disassociation. Mr. Elam is still listed as both the qualifying party and member on that license. 4. Respondent violated the provisions of A.R.S. § 32-1154(A)(21) by having Mr. Elam, who is listed on revoked License No. K-11.277409-D, listed on License No. K-11.232930-D. Therefore, the Registrar’s request to suspend Respondent’s License No. K-11.232930-D until the dispute in Case No. 2013-2882 has been resolved is supported by the evidence of record. RECOMMENDED ORDER It is recommended that Respondent’s License No. K-11.232930-D be suspended on the effective date of the Order entered in Case No. 2013-4807 until the Registrar receives written proof, and the Registrar accepts such proof, that the dispute in Case No. 2013-2882 has been resolved. It is further recommended that if the Registrar approves written proof that the dispute in Case No. 2013-2882 has been resolved, then the suspension of Respondent’s License No. K-11.232930-D shall be vacated.

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 shall be 40 days from the date of the certification.

Done this day, February 27, 2014.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Without referenced attached exhibits.

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