ALJDEC decisions subject to certification as final

2013A-5289-ROC · Registrar of Contractors · 2014-01-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 6, 2014

APPEARANCES: Clark’s Maintenance, LLC, failed to appear; the State of Arizona, Registrar of Contractors, was represented by Assistant Attorney General Mary DeLaat Williams and ROC Chief of Licensing Lawrence Matthews.

WITNESSES: Lawrence Matthews

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Clark’s Maintenance, LLC (“Appellant”) appeals the Arizona Registrar of Contractors’ (“ROC” or “Registrar”) denial of a renewal application for License No. KB-1.273064-D. The ROC based the denial upon finding that Appellant is in violation of the statutes and that Appellant’s Qualifying Party is unfit due to a felony conviction. Appellant requested a hearing but failed to appear and contest the evidence. Therefore, the evidence against Appellant is uncontested. This tribunal entered into the record Exhibits A through G submitted by the ROC. Testimony from Lawrence Mathews was also submitted. Based on the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommend Order finding that grounds exist to deny renewal of the license. FINDINGS OF FACT 1. In May 2013, Appellant timely filed for renewal of its Class KB-1 license with the ROC.[1] On October 16, 2013, the ROC issued a letter denying the renewal application for these reasons: 1. The Qualifying Party of the applicant Heather Lee Swanson was previously convicted of a felony in contravention of A.R.S. §§ 32- 1154.(A)(8) and the good character requirements of A.R.S. § 32- 1122(D).

2. The nature of the felony, previously convicted of, makes continued licensure of the renewal applicant a threat to the health, safety and welfare of the public.[2]

These statements are fully supported by the evidence presented at hearing. 2. The evidence shows that Heather Lee Swanson, Appellant’s Qualifying Party, was convicted of felony theft in Maricopa County and was sentenced to three years probation beginning December 2012.[3] 3. Based on the evidence presented, Heather Lee Swanson is still on probation at this time. CONCLUSIONS OF LAW 1. The Registrar may refuse to renew a license if a contractor has violated A.R.S. § 32-1154(A),[4] which sets grounds for suspending, revoking, or otherwise disciplining a contractor’s license. Because a refusal to renew a license is essentially disciplinary in nature, the ROC bears the burden of proof when denying renewal.[5] Further, the standard of proof at hearing is by preponderance of the evidence.[6] Therefore, the ROC bears the burden of showing, by a preponderance of the evidence, that Appellant has violated one or more of the provisions of A.R.S. § 32-1154(A) and, thus, that the ROC has grounds to refuse renewal.[7] The ROC has met that burden. 2. Heather Lee Swanson, Appellant’s Qualifying Party, has been convicted of a felony. This is a violation of A.R.S. § 32-1154(A)(8) and is grounds for denial of renewal. 3. In addition, Heather Lee Swanson is currently on probation for a felony. This supports the ROC’s decision to deny renewal of the license. RECOMMENDED ORDER IT IS RECOMMENDED that the Registrar of Contractors deny renewal of License No. KB-1.273064-D.

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 5 days from the date of that certification.

Done this day, January 27, 2014.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Exhibit A. [2] Exhibit E. [3] Exhibits C and D. [4] A.R.S. § 32-1125(A). Grounds for denial of renewal are also stated in A.R.S. § 32-1122(D). [5] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [6] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [7] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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