ALJDEC decisions subject to certification as final

2014A-3576-ROC · Registrar of Contractors · 2015-08-17

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 27, 2015 APPEARANCES: The Registrar of Contractors was represented by Assistant Attorney General Seth T. Hargraves. Respondent Robert Frederick Planty appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. On September 15, 1987, the Arizona Registrar of Contractors (“the Registrar”) issued License No. R-11.068574-R to Respondent Robert Frederick Planty doing business as Rob’s Contracting Services (“Respondent”). Robert Frederick Planty is listed as Respondent’s Qualifying Party/Owner. 2. On October 15, 1987, the Registrar issued License No. B.069096-R to Respondent. 3. On March 3, 1988, the Registrar issued License Nos. B-2.076250-C and C-11.076251-C to Respondent. 4. On December 14, 2009, the Registrar revoked Respondent’s License No. B-2.076250-C and C-11.076251-C, pursuant to the Order entered in the Registrar Cases 09-2363 and 09-2363W. 5. The Registrar, on its own motion, issued a Citation against Respondent’s License Nos. R-11.068574-R and B.069096-R, charging a violation of A.R.S. § 32-1154(A)(20) because Mr. Planty had been listed as the Qualifying Party and Owner on License Nos. B-2.076250- C and C-11.076251-C previously issued to Respondent and the Registrar had revoked those licenses after it found that Respondent had abandoned a contract, had departed from or disregarded plans, had failed to complete a project for the price in the contract, had aided and abetted an unlicensed person to evade the Registrar’s requirements, had contracted beyond the scope of its license, and had workmanship issues in violation of A.R.S. § 32-1154(A)(1), (2), (3), (9), (10), and (17). 6. An evidentiary hearing was held on July 27, 2015. The Registrar submitted six exhibits and presented the testimony of Adam Stafford, Assistant Chief Counsel. Respondent submitted one exhibit and testified on his own behalf. 7. The parties stipulated to the facts underlying this matter. The Registrar presented testimony that Respondent would need to make a proper showing that any losses to the complaining party caused by Respondent had been fully satisfied to establish that his current licenses should not be disciplined. Mr. Stafford indicated a proper showing may be a notarized statement from the complaining party, an officer of the corporation, or a successor or assignee may be sufficient. 8. Respondent argued there were no losses to the complaining party in the prior case and that it may be impossible for him to track down the owners of the business, if it still existed, to obtain a statement to that effect. Respondent asserted that a civil case had been dismissed and that no payments were made to the complaining party from him personally, his bond, his insurance, or the recovery fund. 9. The Registrar argued that a suspension of Respondent’s license until such a time he provided a proper showing that any losses to the complaining party resulting from Respondent’s acts or omissions in the earlier matter were fully satisfied was necessary to protect the public. The statutes in place are intended to prevent individuals from jumping for license to license. However, rectifying the harm to an injured party is considered a mitigating factor. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[1] 2. The Registrar bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[2] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[3] A preponderance of the evidence is “[t]he greater weight of the evidence, not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the other.”[4] 3. A.R.S. § 32-1154(A)(20) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[h]aving a person named on the license who is or was named on any other license in this state or in any other 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.” 4. A.R.S. § 32-1161(C) provides that “[a]fter revocation of a license upon any of the grounds set forth in section 32-1154, the license shall not be renewed or reissued for one year after final determination of revocation and then only on proper showing that all loss caused by the act or omission for which the license was revoked has been fully satisfied.” 5. It is uncontested that Respondent’s commercial licenses were revoked for a violation of the Registrar’s statutes and regulations. 6. Nothing in A.R.S. § 32-1154(A)(20) requires that Respondent’s license must be revoked as a result of Respondent’s commercial licenses being revoked. Rather, A.R.S. § 32-1154 is entitled “Grounds for suspension or revocation of license; continuing jurisdiction; civil penalty; recovery fund award; summary suspension.” Thus, suspension or revocation are possible disciplinary actions that may be taken as a result of Mr. Planty being named on Respondent’s commercial licenses when they were revoked and presently being named on Respondent’s residential licenses. 7. No evidence was presented to establish that the harm to the complaining party in the underlying matter had been rectified. 8. Based on the specific circumstances present in this matter, the Administrative Law Judge concludes that it is not appropriate to revoke the license previously issued to Respondent. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, License Nos. R-11.068574-R and B.069096-R of Respondent Robert Frederick Planty doing business as Rob’s Contracting Services shall be suspended until such time that he provides a proper showing that the losses to the complaining party in the underlying matter have been rectified. 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 five days from the date of that certification. Done this day, August 17, 2015.

/s/ Tammy Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1154(A). [2] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [3] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [4] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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