ALJDEC decisions subject to certification as final

2016A-2631-ROC · Registrar of Contractors · 2016-12-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors,

-v-

Elias Construction and Skylight Specialists LLC

Pending Application Number305008

RESPONDENT

Number 2016A-2631-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: December 23, 2016

APPEARANCES: Thomas Raine, Esq., Assistant Attorney General ,Counsel for ROC; Bonnie Allen, Esq., ROC Staff Attorney; Brian Kirby, ROC License Manager; Jeff Zimmerman, ROC Asst. License Manager appeared on behalf of the Registrar of Contractors. William Elias, Respondent/Applicant and Marlene Elias, Respondent’s spouse appeared on behalf of the Respondent.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

On or about March 15, 2016, Elias Construction and Skylight Specialists, LLC, filed an Application with the Arizona Registrar of Contractors [ROC]. William H. Elias is named as the Qualifying Party named on Respondent’s license application.

The Respondent was the signatory for the license application

On June 23, 2016, the ROC issued its written denial of the Application of Elias Construction and Skylight Specialists, LLC citing as its basis for denial that the Respondent

Is named on revoked and/or suspended licenses.

Failed to provide a proper showing that all harm caused by the suspended and/or revoked licenses has been remedied.

Has been contracting without a license.

Has failed to establish the requisite documentation of experience in order to be the qualifying party on the license.

At hearing in this matter, the Respondent offered and admitted proof of his conviction on November 28, 2016 before the Pima County Consolidated Court for Contracting Without a Contractor’s License as a first offense and Advertising without a Contractor’s License in CR16-603648-MI.

The ROC provided detailed records of its encounters over the years with the Respondent in support of the ROC action denying the Respondent’s Contractor License Application currently under consideration in this matter. This is not the Respondent’s “first trip to the rodeo.” The evidence presented demonstrates:

On or about December 12, 1995, the Registrar of Contractors revoked license Number 087928 for a Residential Contractor's Recovery Fund (Recovery Fund) payout in the Registrar's complaint Number 1996-797215. The Respondent was the Qualifying Party on license Number 087928.

Mr. Elias disclosed that he had been named on the revoked license Number 232859. On or about November 2, 2009, the Registrar suspended license Number 232859. in accordance with the terms of the Registrar's September 23, 2009 Order entered in the matter of case Number 2009-1960696.

On or about February 10, 2011, the Registrar suspended license Number 232859. in accordance with the terms of the Registrar's October 18, 20 Order entered in the matter of case Number 2010-4363431.On or about August 30, 2010, the Registrar suspended license Number 232859 in accordance with the terms of the Registrar's February 9, 2010 Order entered in the mailer of case Number 2009-1 1133842.

On or about December 2, 2011, a Cease and Desist Order was served on the Respondent from ROC for contracting without a license in the matter of 2011-6700.

On or about May 30, 2013, Complaint Number 2013-2404 against license Number32859 was filed with the Registrar by Norma Nunez of Norm's Crane Service for non-payment of crane services.

In case number 2013-2404, the Registrar issued a warning letter to Mr. Elias and license Number 232859 for contracting without a license.

On or about December 6, 2014, the Registrar had Mr. Elias personally served with a Cease and Desist Order in case Number 2014-2418.

In case number 2013-2404, the Registrar issued a warning letter to Mr. Elias and license Number 232859 for contracting without a license.

Mr. Elias has failed to provide a proper showing that all damages caused by license No 232859 in 2013-2404 have been remedied pursuant to A.R.S. § 32-l 16l(C).

Mr. Elias has outstanding civil penalties in the amount of $1500.00 which were assessed and cited by the Registrar for unlicensed advertising in case Number 2014-2418 on June 14, 2014.

Mr. Elias has outstanding civil penalties in the amount of $2500.00 which were assessed and cited by the Registrar for unlicensed advertising in case Number 2014-2418 on November 6, 2014.

Mr. Elias has outstanding civil penalties in the amount of $2500.00 which were assessed and cited by the Registrar for unlicensed advertising in case Number 2014-2418 on November 26, 2014.

Mr. Elias has outstanding civil penalties in the amount of $2500.00 which were assessed and cited by the Registrar for unlicensed advertising in case Number 2014-2418 on December 5, 2014.

Mr. Elias has failed or refused to pay the outstanding civil penalties assessed in case Number 2014-2418 in the amount of $9,000.00.

On or about January 15, 2016 complaint Number 2016-200 against license Number 232859 was filed with the Registrar by Bobbie Austin.

On or about January 28, 2016 a Criminal Order was served against Mr. Elias for contracting without a license in the matter of 2016-200.

On or about March 30, 2016, the Registrar had Mr. Elias personally served with a Cease and Desist Order in case Number 2016-361.

Mr. Elias has outstanding civil penalties in the amount of $2500.00 which were assessed and cited by the Registrar for unlicensed contracting and unlicensed advertising in case Number 2016-361 on May 22, 2016.

Mr. Elias has failed or refused to pay the outstanding civil penalties assessed in case Number 2016-361 in the amount of $2,500.00.

Initially stated by the ROC as a basis for denial of the Application in this case was that Applicant failed to provide the requisite documentation of experience for its

Qualifying partner to the Registrar. Specifically, it was alleged that Mr. Elias failed to establish that he has a minimum of four years of practical and management trade experience. At hearing, the ROC stipulated on the record that it had decided to abandon the “requisite experience” prong of its basis for denial and accepted that the Responded has demonstrated that he met the requisite minimum of four years practical and management trade experience required.

CONCLUSIONS OF LAW

The party asserting a claim, right, or entitlement has the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. Ariz. Admin. Code § R2-19-119(B). In this case, the Applicant [the Respondent] has the burden of going forward and the burden of proof.

The standard of proof on all issues in this matter is that of a preponderance of the evidence. [Ariz. Admin. Code § R2-19-119(A)[.

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].

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.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B).

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).

The Respondent was convicted on November 28, 2016 before the Pima County Consolidated Court for Contracting Without a Contractor’s License as a first offense and Advertising without a Contractor’s License in CR16-603648-MI.

From the evidence submitted at hearing, it is true that the ROC has the lawful basis to deny the Respondent’s Application for a number of reasons. Moreover, the frequency and similarity of the Respondent’s conduct history reflects an apparent and flagrant disregard for both the authority of law and the intended purpose of the law to “to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.” [Ibid]. A history of such conduct by a “licensed contractor” in a disciplinary setting would surely be weighed as an aggravating circumstance against a wrong-doing licensed contractor. This proceeding – although similar in evidence – is not a proceeding against a licensed contractor. Rather, it is a proceeding that provides whatever process is due to a license applicant whose application has been denied. Notwithstanding, the picture painted by the evidence for this Respondent by his repeated and ongoing violations of ROC Rules and Arizona Contractor’s Statutes should not be tolerated by the ROC in Applicants who timely file an Application for a Contractor’s license.

However, the Respondent’s Application is not timely filed.

it is clear that The Administrative Law Judge need not decide this case on any other basis than pursuant to the clear and mandatory directive of A.R.S. §32-1122(E), to wit:

A person who has been convicted of contracting without a license is not eligible to obtain a license under this chapter for one year after the date of the last conviction.

Directly stated, the Respondent’s Application is not ripe.

Denial of the Respondent’s Application is proper because it is not timely filed.

The Respondent is not eligible for consideration as an applicant for licensure by Arizona as a contractor unless and until one year after the date of his last conviction for contracting without a license.

The Respondent’s last conviction [of record in this case] for contracting without a license was November 28, 2016.

The Respondent is eligible to apply for an Arizona Contractor’s License from ROC on November 30, 2017, and not before.

RECOMMENDED ORDER

Based on the foregoing, it is the Administrative Law Judge’s recommendation that the June 23, 2016 written denial of the Application of Elias Construction and Skylight Specialists, LLC should 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 is forty days after the date of that certification.

Done this day, December 28, 2016.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors