ALJDEC decisions subject to certification as final

2015A-206-ROC · Registrar of Contractors · 2015-12-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 24, 2015 APPEARANCES: Troy DePriest for Complainant; Thomas Raine, Esq. for Respondent ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ FINDINGS OF FACT 1. On September 8, 2015, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on October 23, 2015, at the Office of Administrative Hearings in Phoenix, Arizona. 2. The matter was continued and the hearing was conducted on November 24, 2015. 3. Respondent Home Ovations, LLC, holds license number KB-2.291411- D issued by ROC.[1] Troy DePriest is Home Ovations’ qualifying party and a member of the LLC. 4. Between February 20, 2014 and June 30, 2014, Mr. DePriest was the qualifying party for Trident Construction Builders LLC (“Trident”). Mr. DePriest was listed as owning 25% of Trident on its application for licensure and, as of the hearing date in this matter, was still a member and part owner of that LLC. 5. Trident’s license number 289684 was revoked on January 16, 2015, and revoked again on February 18, 2015. See Exhibits 7 (Citation and Notice of Hearing issued to Trident) and 8 (Default Decision and Order and Order Vacating Hearing). As of the hearing date in this matter, Trident’s license was still revoked. 6. On July 10, 2015, ROC issued a Citation alleging that Home Ovations was in violation of Ariz. Rev. Stat. section 32- 1154(A)(20) because Mr. DePriest was named on Trident’s license during the time that Trident committed acts or omissions that led to its license being revoked. 7. Mr. DePriest acknowledged that he had been the qualifying party for Trident and that he was, and still is, a member of that LLC. 8. Mr. DePriest testified however that during the time he was the qualifying party, he was unaware that Trident had entered any contracts or that it had performed any of the acts that led to its revocation. Mr. DePriest also testified that he resigned as Trident’s qualifying party because Trident’s other owner, Christopher Morton, was not responding to Mr. DePriest’s attempts to contact him. 9. Mr. DePriest testified that he had attempted to remove himself from the Trident LLC, but the Corporation Commission required Mr. Morton, the managing member, to sign paperwork. 10. Mr. DePriest testified that he has twenty-five years of experience as a contractor and to the effect that he now knows it was a mistake to get involved with Mr. Morton. 11. Mr. DePriest argued that Home Ovations’ license should not be revoked and that his mistake is outweighed by his twenty-five year record. 12. ROC argued that under Ariz. Rev. Stat. section 32-1154(A)(20), it is required to suspend Home Ovations’ license until the losses that led to Trident’s revocation have been fully satisfied.[2] CONCLUSIONS OF LAW 1. ROC bears the burden of persuasion. Ariz. Rev. Stat. § 41- 1092.07(G)(2). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 3. A preponderance of the evidence is: The 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.

Black’s Law Dictionary 1373 (10th ed. 2014). 4. Statutes should be interpreted to provide a fair and sensible result. Gutierrez v. Industrial Commission of Arizona, 226 Ariz. 395, 249 P.3d 1095 (2011)(citation omitted); State v. McFall, 103 Ariz. 234, 238, 439 P.2d 805, 809 (1968) ("Courts will not place an absurd and unreasonable construction on statutes."). 5. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 6. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors. See Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995). 7. Ariz. Rev. Stat section 32-1155(A)(20) provides that: The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: …. Having a person named on the license who is or was named on any other license in this state or in another 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.

8. Ariz. Rev. Stat section 32-1161(A) provides that: After suspension of the license upon any of the grounds set forth in section 32-1154, the registrar shall renew it upon proof of compliance by the contractor with provisions of the judgment relating to renewal of the license, or in the absence of a judgment or provisions therein as to renewal, upon proper showing that all loss caused by the act or omission for which the license was suspended has been fully satisfied.

9. The preponderance of the evidence shows that Mr. DePriest was named on Trident’s license when acts or omissions occurred that led to Trident’s license being revoked. Ariz. Rev. Stat section 32-1155(A)(20) has no exceptions for circumstances such as those Mr. DePriest testified to. Consequently, ROC has met the burden of persuasion to show that Home Ovations’ license should be suspended until such time as the losses that led to Trident’s revocation have been fully satisfied. ORDER IT IS ORDERED that on the effective date of the final Order in this matter Home Ovations LLC’s license number KB-2.291411-D is suspended until the losses that led to the revocation of Trident Construction Builders LLC’s license 289684 have been fully satisfied. 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 is forty days after the date of that certification.

Done this day, December 9, 2015.

/s/ Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] ROC’s website shows Home Ovations’ license number as 291411. Consistent with existing policy, in this Decision the number set out in the Notice of Hearing’s caption is used. [2] Neither party presented evidence or legal argument regarding whether Home Ovations’ license would be subject to discipline if Mr. DePriest is removed as a person named on that license.

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