FINACT2015A-6-ROC.pdf

2015A-6-ROC · Registrar of Contractors · 2015-04-16

BEFORE THE REGISTRAR OF CONTRACTORS

OF THE STATE OF ARIZONA IN THE MATTER OF THE ) ) CASE NO: 2015-6 APPLICATION OF: ) ) Capital Landscapes LLC ) DOCKET NO. 2015A-6-ROC Pending License No.CR21.294615-D ) RESPONDENT ) ) ORDER ) Whenever the Registrar rejects or modifies an administrative law judge’s written decision, the Registrar must provide “a written justification setting forth the reasons for the rejection or modification.” A.R.S. § 41-1092.08(B). In this case, the Administrative Law Judge recommended affirming the “Registrar’s denial of Applicant’s application for a contractor’s license.” Administrative Law Judge Decision 14:1–4. Because the Registrar is rejecting that affirmation of the license denial and modifying the conclusions of law that suggested the propriety of that affirmation, the Registrar provides the following written justification. WRITTEN JUSTIFICATION REQUIRED BY A.R.S. § 41-1092.08(B) The Administrative Law Judge Decision is based on the record that was developed by the

parties at the hearing. 13:19–22 (“On this record . . .”). The Applicant, which was unrepresented

by counsel at the hearing, ALJ Decision 1:10–14, apparently failed to introduce certain salient

facts regarding the original application documents into the hearing record, even though those

facts were established by the documents themselves. And the Registrar’s witnesses (including its

at-that-time Chief of Licensing) apparently did not acknowledge or address those facts.

The Registrar, instead, appears to have made its case against the Applicant by relying on the

former licensing chief’s inaccurate sense of the Registrar’s duty to inquire into the accuracy of

work-experience forms and project-information forms. See, e.g., ALJ Decision 5:13–20 (“Mr.

Mathews explained that the Registrar also must determine whether the work that the qualifying

of 5 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 party claims for the required experience was performed in a professional and workmanlike

manner.”).1

1. Genereux accounted for his experience in the manner required by the Registrar, and other persons verified his experience in the manner required by the Registrar. Using forms provided and required by the Registrar, Brent Genereux accounted for his work

experience from August 2008 through November 2013. See ALJ Decision at Findings of Fact

¶¶ 1–5.5. He claimed work experience in “irrigation” and doing “full landscape installs.” 2 In

“Verification Statement” forms provided by the Registrar, two men—Shawn Ross and Kenyon

Chiles—verified under penalty of perjury that the work-experience information provided by

Genereux was true. They also verified that their knowledge was “direct.” Each man’s

verification statement was notarized.

In a document separate from the work-experience forms, Genereux characterized the work he

had done for Ross’s and Chiles’s companies as “interning,” which he had undertaken for “getting

the experience [he] was going to need to get [his] own license one day.” The separate document

also accounted for his work experience from November 2013 to the present: doing “weekly

maintenance” and “complete backyard installs.” (With this separate document, Genereux

apparently intended to explain to the Registrar’s licensing department why he had no W-2s to

submit with his license application.) Genereux affixed his name—“Brent Genereux”—to the

bottom of the separate document, and Genereux’s work-experience forms contained his signature

Mr. Mathews does not appear to have cited any statute, rule, or written policy adopted by the Registrar which would compel the personnel of the Registrar’s licensing department to inquire into the workmanship of work or projects referenced by an applicant’s qualifying party in a work-experience form or project-information form verified by a third party. He also does not appear to have explained how “be[ing] able to contact the persons who verified the information” would be a reasonably effective means of making an inquiry into whether “the work was performed in a professional and workmanlike manner.” ALJ Decision 10:20–28. The exaggerated requirements alleged by Mr. Mathews therefore appear both fictitious and impractical. The quotations in this sentence are drawn from, and the statements that follow in subsequent sentences receive support from, the licensing documents attached as exhibits to the Administrative Law Judge Decision. under the penalty-of-perjury verification statements required by the Registrar.

Therefore, from the face of the documents, it is clear that three separate persons verified

under penalty of perjury that Genereux had more than five years’ worth of work experience in

irrigation and landscaping (i.e., the verified work experience from August 2008 through November 2013). And if one reads Genereux’s signature on the separate document as verifying his statement that he has been self-employed in handyman landscaping since November 2013, one has an additional eight months of work experience (i.e., from November 2013 to the application’s filing in August 2014) to credit to Genereux. 2. In light of the verified forms provided by Genereux and others regarding Genereux’s experience, the denial letter lacked merit. In light of all those verified statements, the December 11, 2014 denial letter (signed by the former Chief of Licensing and constituting the appealable agency action in this case) has at least two senseless assertions regarding Genereux’s work experience. First, the letter states: “A member of the Registrar’s Licensing Department tried to contact Mr. Chiles on several occasions, but he never returned the Registrar’s call. The Registrar was unable to authenticate the Work Experience Record verified by Kinyon Chiles.” Authentication was unnecessary; Chiles had already verified—in a notarized statement he made under penalty of

perjury on a Registrar-provided form—Genereux’s work-experience record. The denial letter

failed to explain why Mr. Chiles’s verified statement was invalidated simply because a licensing-

department employee had failed to reach him on the telephone.

Second, the denial letter notes that Genereux had claimed “approximately 40 hours a week”

of work for Ross’s company. The denial letter then claims that “[a] member of the Registrar’s

Licensing Department spoke with Christopher Shawn Ross” and that “Ross stated that the

applicant was an intern and worked approximately 10–15 hours per week.” (At the hearing, Ross

denied he had said any such thing to the licensing-department employee, and he affirmed that

Genereux had worked 40 hours a week. ALJ Decision 10:6–15.) From those statements, the

of 5 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 denial letter somehow concluded: “Therefore, the Registrar finds that this Work Experience

Record is insufficient because the applicant only provided six (6) months of work experience to

the Registrar.” The denial letter failed to explain how Mr. Ross’s alleged statement regarding the

10–15 hours justified a conclusion that Genereux’s work experience amounted to only six

months. (In the original work-experience form signed by Ross, he had verified that Genereux had

two years and one month’s worth of experience as a superintendent.)

Given those two senseless assertions, the denial letter’s fundamental “finding”—i.e., “that

the work experience submitted by Genereux [was] insufficient to support the four (4) years of

experience required pursuant to statute”—lacked merit and appears to have been arrived at

arbitrarily.

CONCLUSION AND ORDER

The Registrar therefore removes Paragraphs 3 and 4 from the Administrative Law Judge’s

Conclusions of Law and replaces them with the following:

3. Through the verified documentation provided to the Registrar, Mr. Genereux established that he possesses the experience required for the license in the application. In light of that replacement, the Registrar must reject the Administrative Law Judge’s

Recommended Order, namely “that on the effective date of the final order, the Registrar’s

denial of the Applicant’s application for a contractor’s license be affirmed.” ALJ Decision

14:1–4.

Instead, the Registrar orders that License No. CR21.294615-D be issued to Capital

Landscapes LLC with Mr. Brent Genereux as the qualifying party. Done on this 14th day of April, 2015. REGISTRAR OF CONTRACTORS

/s/ James N. Hanson ________________________________________ James N. Hanson Chief Counsel

Copy mailed via USPS First Class mail this 14th day of April, 2015 to: Respondent Capital Landscapes LLC 1881 S. Colt Dr. Gilbert, AZ 85295-3443

AND copy electronically mailed this same date to: Registrar’s Counsel Seth T. Hargraves, Esq., Assistant Attorney General Office of Administrative Hearings Diane Mihalsky, Administrative Law Judge Registrar’s Licensing Department Case No. 2015-6/mkc

of 5 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – PHOENIX, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762