ALJDEC decisions subject to certification as final

2014A-3728-ROC · Registrar of Contractors · 2015-05-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 8, 2015 APPEARANCES: Respondent S C F Installation LLC did not appear. The Registrar of Contractors was represented by Assistant Attorney General Seth T. Hargraves. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. On or about May 1, 2007, Respondent filed its Articles of Organization with the Arizona Corporation Commission. Respondent’s Articles of Organization listed Scott Borgerson (Borgerson) as the only Member. Exhibit D. 2. On or about August 22, 2007, Borgerson submitted Articles of Amendment to the Arizona Corporation Commission resigning as a Member of Respondent and adding Gene Herman Weinstein (Weinstein) as a Member. Exhibit D. 3. On or about September 12, 2007, Respondent submitted an Application for Contractors’ License to the Registrar. Exhibit C. 4. On October 3, 2007, the Registrar issued License No. CR-8.237947-D to Respondent. Weinstein was listed as a Member of Respondent with 100 percent ownership and as the Qualifying Party on the license. Exhibit C. 5. On or about January 10, 2013, Articles of Amendment were submitted to the Arizona Corporation Commission adding Borgerson as a Member of Respondent with 20 percent or more ownership. Exhibit D. 6. On or about October 31, 2013, Respondent electronically submitted its license renewal application using the Registrar’s online license renewal process. Weinstein answered “NO” to question 2: “Has the qualifying party or a person (as defined per A.R.S. § 32-1101 named on a license been convicted of a felony not previously disclosed or been convicted of a felony since the last renewal time period?” Exhibit C. 7. On July 28, 2014, the Registrar received an anonymous complaint alleging that “[t]he owner of scf installation llc 237947k8 is a convicted child molester class 3 felony search Maricopa county superior court cr1995-000088 for his conviction Thank you.” Exhibit A. 8. Upon investigation, the Registrar obtained police and court records regarding Borgerson. On or about January 4, 1995, an indictment was issued charging the following violations: that on or about December 3, 1994, Borgerson intentionally or knowingly molested a child under the age of 15 years by engaging in or causing another to engage in sexual contact with the child in violation of A.R.S. §§ 13-1401, 13- 1410, 13-3821, 31-281, 13-604.01, 13-702, and 13-801; intentionally or knowingly engaged in sexual intercourse or oral sexual contact with a child under the age of 15 years in violation of A.R.S. §§ 13-1401, 13- 1405, 13-3821, 31-281, 13-604.01, 13-702, and 13-801; and intentionally or knowing engaged in any direct or indirect fondling or manipulating of any part of the female breast of a child under the age of 15 years in violation of A.R.S. §§ 13-1404, 13-1401, 13-3821, 31- 271, 13-604.01, 13-702, and 13-801. Exhibit B. 9. According to the documentation, Borgerson was alleged to have inserted his finger into the vagina of the 12-year-old victim, placing her hand on his penis, and fondling her breasts while at his residence. Exhibit B. 10. On or about October 16, 1996, Borgerson pleaded guilty to Attempted Molestation of a Child, a Class 3 Felony and Dangerous Crime against Children in the Second Degree, committed on December 3, 1994. Exhibit B. 11. During the investigation, the Registrar also discovered Borgerson’s prior licensing history. 12. In April 1999, Borgerson submitted an Application for Contractors License seeking a dual license. The business name was identified as Scott’s Custom Flooring, and Borgerson was listed as the sole owner and Qualifying Party. In response to question 12, “Has any person listed in questions 9 or 11 been convicted of a felony,” Borgerson answered yes and listed his name. A license was not issued as a result of this application. Exhibit E. 13. In September 2000, Borgerson submitted two Applications for Contractors License seeking a residential and a commercial license. The business name was identified as Scotts Custom Flooring LLC. Borgerson was listed as a member and the manager and Justin Van Dyck was listed as an employee. In response to question 12, “Has any person listed in questions 9 or 11 been convicted of a felony,” Borgerson answered yes and listed Justin Van Dyck’s name. Licenses were issued as a result of these applications. Exhibit F. 14. In February 2001, Scotts Custom Flooring LLC submitted an Officer Change Form in which Borgerson was removed as a member, Justin Van Dyck remained as a member, and Anita Louise Christenson was added as a member and 100 percent owner. Exhibits G and H. 15. In September 2002, Scotts Custom Flooring LLC filed a renewal application in which Robert Clinton Borgerson was listed as member and Qualifying Party and Anita Louise Christenson was listed as a member. Exhibit I. 16. In October 2004, Scotts Custom Flooring LLC filed a renewal application in which Robert Clinton Borgerson was listed as member and Qualifying Party and Anita Louise Christenson was listed as a member. Exhibit J. 17. In September 2006, Scotts Custom Flooring LLC filed a renewal application in which Garen Scott Kenoyer was listed as the Qualifying Party and Anita Louise Christenson was listed as a member. Exhibit K. 18. In September 2001, Scotts Custom Flooring LLC updated its record with the Arizona Corporation Commission to add Anita Chistianson and Gene Weinstein as members. Exhibit L. 19. On October 31, 2006, a hearing was held before the Office of Administrative Hearings regarding a complaint filed by homeowners. At that hearing, Borgerson appeared on behalf of Scotts Custom Flooring LLC and asserted that he was a member and authorized representative. Exhibit M. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1122. 2. The Registrar bears the burden of proof by a preponderance of the evidence to establish that cause exists to discipline Respondent’s licenses. See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). 3. A.R.S. § 32-1154(A) provides that the holder of a license or any person listed on a license shall not commit any of the following acts or omissions: 5. Misrepresentation of a material fact by the applicant in obtaining a license. . . . . 7. Conviction of a felony. . . . . 19. Subsequent discovery of facts that if known at the time of issuance of a license or the renewal of a license would have been grounds to deny the issuance or renewal of a license.

4. The undisputed evidence established that Respondent failed to disclose on its October 31, 2013 license renewal application that its Member, Borgerson had pleaded guilty to Attempted Molestation of a Child, a Class 3 Felony, on or about October 16, 1996, which is a violation of A.R.S. § 32-1154(A)(5). 5. The undisputed evidence established that Borgerson is a Member of Respondent and pleaded guilty to Attempted Molestation of a Child, a Class 3 Felony in violation of A.R.S. § 32-1154(A)(7). 6. The undisputed evidence established that the Registrar subsequently learned of Borgerson’s felony conviction, which if known at the time of the renewal of License No. CR-8.237947-D would have been grounds to deny the renewal of the application pursuant to A.R.S. § 32- 1154(A)(19). 7. Therefore, the Registrar established that Respondent’s license should be revoked. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar of Contractors’ Order in this matter, the Registrar of Contractors’ revoke Respondent S C F Installation, LLC’s License No. CR- 8.237947-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 40 days from the date of that certification. Done this day, May 28, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

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