ALJDEC decisions subject to certification as final

2014A-1930-ROC · Registrar of Contractors · 2014-07-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 10, 2014 APPEARANCES: Rosewood Homes Construction, L.L.C. (“Applicant”) was represented by Nick Eugene McKee. The Registrar of Contractors (“Registrar”) was represented by Assistant Attorney General John Tellier. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ FINDINGS OF FACT 1. Pursuant to the Notice of Hearing issued by the Registrar, this matter came of for hearing before the Office of Administrative Hearings to hear Applicant’s appeal of the denial of its application for a Class B- General Small Commercial Contractor license by the Registrar. 2. At the hearing, Applicant was represented by its proposed qualifying party, Nick Eugene McKee. Mr. McKee did not present any evidence in support of Applicant’s appeal. 3. The Registrar presented its case through the testimony of Dave Gustason, a licensing specialist for the Registrar, and six exhibits consisting of the following: (i) A letter dated April 17, 2014, from the Registrar informing Applicant that its license application had been denied; (ii) Applicant’s Application for Contractor’s License; (iii) Work Experience Record for Nick Eugene McKee, Applicant’s proposed qualifying party; (iv) Applicant’s Notice of Appeal; (v) Resume for Nick E. McKee; and (vi) Registrar’s residential licensing records for T W Lewis Construction, Inc., R M H Residential Construction, L.L.C., and Rosewood Homes Construction, L.L.C. 4. On January 13, 2013, Applicant filed its Application for Contractor’s License with the Registrar. Applicant applied for the issuance of a Class B-2 General Small Commercial Contractor license. Applicant’s application listed Mr. McKee as Applicant’s proposed qualifying party. 5. On or about January 18, 2013, Applicant submitted a Work Experience Record for Mr. McKee with the Registrar. 6. By letter dated April 17, 2014, the Registrar informed Applicant that its application for the issuance of a Class B-2 General Small Commercial Contractor license was denied for the following reasons:

1. Nick Eugene McKee has failed to establish relevant experience necessary to obtain Pending License No. 289920 in his application in contravention of A.R.S. § 32- 1122.F.1.

2. Nick Eugene McKee has failed to establish good character and reputation in violation of A.R.S. § 32-1122.D as he was and is a person named on R M H Residential Construction, License No. 203662, which had seven (7) complaints that resulted in the revocation of the license while Mr. McKee was Qualifying Party.

3. The Registrar would violate the provisions of A.R.S. §§ 32- 1154.A.21 and 32-1161.C, were it to allow Nick Eugene McKee to be named as Qualifying Party on Rosewood Homes Construction, LLC’s, License No. 289920[,] because Nick Eugene McKee is a person named on the license of R M H Residential Construction, License No. 203662, which had seven (7) complaints that resulted in the revocation of the license while Mr. McKee was Qualifying Party.

7. At the commencement of the hearing, the Registrar’s counsel announced that reasons 2 and 3 for the denial of Applicant’s application contained in the April 17, 2014 denial letter were withdrawn. The Registrar still intended to deny Applicant’s application because of denial reason 1 concerning Mr. McKee’s lack of relevant commercial contracting experience necessary for the Class B-2 license. 8. Applicant failed to establish that Mr. McKee had a minimum of four years of experience with at least two years in the previous ten years of commercial contracting experience. On the contrary, Applicant’s experience has been with residential contracting working for licensed residential contractors for the past ten years. 9. At the hearing, Applicant failed to present any evidence that Mr. McKee has the required commercial contracting experience. CONCLUSIONS OF LAW 1. Pursuant to A.R.S. § 41-1092.07(G)(1), Applicant has the burden of proof in this matter. The standard of proof on all issues is by a preponderance of the evidence. See A.A.C. R2-19-119(A). 2. The Registrar withdrew the allegations that Applicant violated the provisions of A.R.S. § 32-1122(D), 32-1154(A)(21), and 32-1161(C). 3. A.R.S. § 32-1122(F)(1) sets forth the following trade experience required of an applicant’s qualifying party necessary for licensure: Before a license is issued, the qualifying party shall: 1. Have had a minimum of four years' practical or management trade experience, at least two of which must have been within the last ten years, dealing specifically with the type of construction, or its equivalent, for which the applicant is applying for a license. Technical training in an accredited college or university or in a manufacturer's accredited training program may be substituted for a portion of such experience, but in no case may credited technical training exceed two years of the required four years' experience. The registrar of contractors may reduce the four years' practical or management experience requirement if in the registrar's opinion it has been conclusively shown by custom and usage in the particular industry or craft involved that the four year requirement is excessive. The registrar may waive the work experience documentation and verification or the examination requirement if the records reflect that the qualifying party is currently or has previously been a qualifying party for a licensee in this state in the same classification within the preceding five years.

4. The evidence of record established that Mr. McKee does not possess the relevant commercial trade experience needed to approve Applicant’s application for a Class B-2 license with Mr. McKee as the qualifying party. Therefore, the Registrar’s denial of Applicant’s application for the lack of commercial trade experience is justified by the record. RECOMMENDED ORDER Based on the foregoing, it is recommended that Applicant’s appeal in this matter be denied and that the Registrar’s denial of Pending License No. B-2.289920-C because Mr. McKee, as the proposed qualifying party, lacks the required trade experience pursuant to A.R.S. § 32-1122(F)(1) be upheld.

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 forty (40) days from the date of the certification. Done this day, July 21, 2014.

/s/ Brian Brendan Tully 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