ALJDEC decisions subject to certification as final

2016A-3380-ROC · Registrar of Contractors · 2017-02-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors

COMPLAINANT

-v-

Gutierrez Aire LLC

License No(s). CR39.226433-D

RESPONDENT

No. 2016A-3380-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: February 7, 2017

APPEARANCES: John Tellier, Attorney for Complainant; Bonny Allen and Mike Crow, witnesses

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang

_____________________________________________________________________

Having heard the evidence and testimony and having considered the record in this matter, the undersigned Administrative Law Judge hereby makes the following Findings of Fact and Conclusions of Law and issues the following Recommended Decision to the Registrar of Contractors.

FINDINGS OF FACT

Respondent has been a licensed Arizona contractor since 2006. On September 9, 2016, the Registrar of Contractors issued Respondent a Citation and Complaint alleging potential violations of Arizona contracting law.

The matter was set for hearing at the Arizona Office of Administrative Hearings, an independent agency authorized to conduct hearings in contested matters arising out of State regulation.

At the time of the hearing, Complainant was represented by an attorney, but no one appeared on Respondent’s behalf.

At the hearing, Complainant’s staff attorney, Bonny Allen testified that Respondent contracted with a customer on February 21, 2015 while his license was suspended. As a result, Respondent’s customer, who experienced problems with the project, did not have access to the Registrar of Contractors complaint process or the Recovery Fund and suffered financial losses as a result.

Respondent has not disputed that he performed contracting work while his license was suspended.

In addition to contracting while suspended, Respondent failed to give the customer a contract and did not display his license number on the invoice he provided the customer.

Complainant seeks to revoke Respondent’s license due to the harm done to Respondent’s customer.

CONCLUSIONS OF LAW

This hearing was conducted in accordance with Arizona Revised Statutes (“A.R.S.”) § 41-1092.01 et seq. Complainant has the burden of proof and the standard of proof on all issues is by a preponderance of the evidence. See Arizona Administrative Code (“A.A.C.”) R2-19-119.

A.R.S. § 32-1154(A)(17) it is a violation of Arizona contracting law to contract or offer to contract while one’s license is suspended or inactive. Respondent does not dispute that he violated this provision of the law.

A.R.S. § 32-1158 sets forth the minimum elements of a contract, which is required to be in writing. A.R.S. § 32-1154(A)(12) provides that it is a violation not to comply with the other provisions of that chapter, which would include A.R.S. § 32-1158. It is undisputed that Respondent violated this provision of the law.

A.R.S. § 32-1124(B) provides that a contractor must display his or her ROC license number on all documents, including invoices. This is also a violation of A.R.S. § 32-1154(A)(12). It is undisputed that Respondent violated this portion of the law.

Complainant requests that Respondent’s license be revoked based in part on the harm caused to Respondent’s customer. Complainant’s attorney noted that Respondent has informed the Registrar that the reason for his violation is that he has been struggling with illness and disruption in his personal life. While Respondent’s current difficulties are entitled to great compassion, they are not relevant to the purpose of protecting the public. Therefore, they are not a valid defense in a matter such as this. The purpose of the Registrar of Contractors is to protect the public. If a contractor poses a risk to potential customers or the integrity and reliability of the structures he or she is responsible for building, it is not appropriate for that contractor to have a license, regardless of the pathos involved.

RECOMMENDED DECISION

Based upon the foregoing considerations, the undersigned Administrative Law Judge hereby recommends that Respondent’s license be revoked.

In the event that the Administrative Law Judge Decision is certified by the Director of the Office of Administrative Hearings, the effective date of the Order is the date of certification.

Done this day, February 9, 2017.

/s/ Dorinda M. Lang

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors