ALJDEC decisions subject to certification as final

2015A-3625-ROC · Registrar of Contractors · 2015-10-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 8, 2015 APPEARANCES: Steven Craig McGee appeared on behalf of Applicant. The Registrar of Contractors (Registrar) was represented by Assistant Attorney General John Tellier. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT 1. On or about April 22, 2015, Mr. McGee submitted to the Registrar a License Application listing himself as a sole proprietor doing business as Natural Electric. 2. Mr. McGee answered “Yes” in response to the question, “Have you been on a contractor’s license in any state as a qualifying party, owner, partner, manager, member, officer, director or shareholder?” Mr. McGee disclosed that he had been on License No. 199970, a Class CR-11 License issued to S Mac Electrical Corp. (hereinafter S Mac). 3. Mr. McGee answered “No” in response to the question, “Have any of the licenses listed in [the previous question] ever been suspended, revoked or otherwise disciplined?” 4. Mr. McGee was listed as the Qualifying Party and officer of S Mac. 5. On or about July 13, 2015, the Registrar’s Assistant Chief of the Licensing Department, Paul Terek, sent a letter to Mr. McGee to notify him that the Registrar had determined to deny his license application under A.R.S. § 32-1122(D) and A.R.S. § 32-1154(A)(20), and summarizing the facts that supported the denial under each statute. Mr. Terek’s July 13, 2015 letter concluded as follows: [T]he Registrar finds that because Mc Gee is named on a suspended license, he has failed to establish good character and reputation. As a result of Mc Gee’s being on a suspended license, the Registrar has determined that Natural does not qualify for a new contractor license.

6. Mr. McGee requested a hearing on the Registrar’s denial of his license application. 7. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 8. An evidentiary hearing was held on October 8, 2015. Mr. McGee testified on his own behalf. The Registrar submitted 13 exhibits and presented the testimony of Faith Petersen. Hearing Evidence 9. Ms. Petersen testified that she is a Customer Service Representative for the Registrar and was familiar with Mr. McGee’s application for licensing. Ms. Petersen said that Mr. McGee’s completed license application was received by the Registrar on April 22, 2015. 10. Ms. Petersen testified that Mr. McGee had previously been listed on License No. 199970, a Class CR11 License issued to S Mac. A complaint filed by Brenton Fischer on behalf of Fischer Sports Physical Therapy against S Mac alleged S Mac had installed faulty wiring and had failed to pay a subcontractor that resulted in a lien being placed on the commercial property located at 5750 South 32nd Street, Phoenix, Arizona 85040. The complaint resulted in a disciplinary action in which S Mac’s license was suspended until S Mac provided proof that it had appropriately rectified the issued involved in the complaint. At the time S Mac’s license was suspended, Mr. McGee was listed on the license. Ms. Petersen said that, as of the date of the hearing, the Registrar had not received any proof that Mr. McGee had resolved that complaint. 11. Ms. Petersen said that the Registrar was concerned that Mr. McGee’s failure to resolve Mr. Fischer’s complaint indicated that the same problem could arise again if Mr. McGee were licensed. 12. Mr. McGee attempted to resolve the underlying complaint by contacting Mr. Fischer on three different occasions and asking that he withdraw the complaint so Mr. McGee could “move on with [his] life.”[1] Mr. McGee testified that he was unable to resolve the underlying complaint because Mr. Fischer would not respond to his attempts to contact him. Mr. McGee stated that the issue with the subcontractor was the result of the subcontractor applying his payments to whichever account they wanted instead of properly attributing the payments to Mr. Fischer’s project. Mr. McGee asserted that he had done everything the Registrar had requested of him and that he had made all reasonable efforts to resolve the complaint against him. CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1122. 2. Mr. McGee bears the burden of proof to establish that it meets statutory qualifications for a contractor’s license by a preponderance of the evidence. 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. § 32-1122 provides, in relevant part, as follows: D. To obtain or renew a license under this chapter, each person shall be of good character and reputation. Lack of good character and reputation may be established by showing that a person has engaged in contracting without a license or committed any act that, if committed or done by any licensed contractor, would be grounds for suspension or revocation of a contractor's license or by showing that the person was named on a contractor's license that was suspended or revoked in another state.

4. A.R.S. § 32-1154(A) provides, in relevant part, as follows: 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: . . . . (20) 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.

5. The evidence of record supports the conclusion that Mr. McGee failed to establish his good character and reputation as required by A.R.S. § 32- 1122(D) in that he was named on the license of S Mac when that license had been suspended as a result of a violation of A.R.S. § 32-1154. This supports the Registrar’s determination that Mr. McGee lacks good character and reputation necessary for licensure as required by A.R.S. § 32-1122(D). 6. The evidence of record supports the Registrar’s denial of Mr. McGee’s Pending Application License No. 298593. RECOMMENDED ORDER Based on the foregoing, it is recommended that the denial of Mr. McGee’s pending license application be affirmed. 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, October 28, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Exhibits 6, 7, and 8.

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