ALJDEC decisions subject to certification as final

2016A-777-ROMC-ROC · Registrar of Contractors · 2018-04-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors,

COMPLAINANT

-v-

Red Field Services LLC

License No(s). B-2.295676-C

RESPONDENT

No. 2016A-777-ROMC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: March 13, 2018, 8:30 A.M.

APPEARANCES: Assistant Attorney General John Tellier, Esq., appeared on behalf of the Arizona Registrar of Contractors. No appearance was made on behalf of Respondent

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Red Field Services, LLC (Respondent), is the holder of License Number 295676 issued by the Registrar of Contractors (Registrar) on January 15, 2015. (Registrar’s Exhibit 2).

2. Mary R. Barnett (Ms. Barnett) was named as a member on Respondent’s License No. 295676. (Registrar’s Exhibit 2). She indicated in Respondent’s application that she had never been on a contractor’s license issued by Arizona or on a license that had been suspended, revoked, or otherwise disciplined. (Registrar’s Exhibit 2).

3. On or about January 10, 2018, the Registrar issued a Citation and Complaint to Respondent for the alleged violation of A.R.S. § 32-1154(A)(20) (having a person named on a license who was named on another license that is under suspension or revocation). (Registrar’s Exhibit 1).

4. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing setting a hearing for March 13, 2018, at 8:30 A.M. and mailed a copy of the Notice of Hearing to Respondent on or about February 5, 2018, at its address of record.

5. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing.

6. On February 22, 2018, Respondent filed a motion to change the venue of the hearing to Tucson, Arizona. The Tribunal denied the motion by Minute Entry, dated February 27, 2018, but also ordered that Respondent could attend the March 13, 2018, hearing by telephone. The Minute Entry was emailed to Respondent on February 28, 2018, at its email address of record.

7. At the March 13, 2018, hearing, the Registrar presented the testimony of Bonny Allen. The Tribunal received and admitted Respondent’s Exhibit numbers 1 - 26.

8. Although the commencement of the hearing was delayed approximately 20 minutes, Respondent did not appear at any time during the hearing through an authorized officer, employee, attorney, or any other person. A representative of the Office of Administrative Hearings attempted to contact Respondent at its telephone number of record but only reached a voicemail, on which a message was left advising Respondent to immediately call into the hearing. There was no call received from Respondent during the entire duration of the hearing. Consequently, Respondent did not present any evidence to defend its license. Respondent further did not request to appear telephonically and did not request that the hearing be continued.

9. On February 12, 2001, the Registrar issued License No. 161409 to Development Builders Management Company, Inc. (DBMC 161409), an Arizona corporation. (Registrar’s Exhibit 5).

10. Ms. Barnett was named as an officer and qualifying party on and therefore she is a responsible person on DBMC 161409 according to A.R.S. § 32-1101(A)(6). (Registrar’s Exhibit 5).

11. Ms. Barnett was an officer and qualifying party on DBMC161409 from February 12, 2001, and remained as an officer and qualifying party until disassociation from the license on February 7, 2003. (Registrar’s Exhibit 8).

12. On or about April 14, 2003, Complaint F03-0117 was filed against DBMC 161409 applicable to contract dates August 29, 2001, to July 20, 2002, by Complainant, Bellemont Hotels LLC, alleging poor work which culminated in revocation by Final Administrative Order dated May 21, 2003. (Registrar’s Exhibit 9).

13. On June 30, 2003, the Registrar revoked DBMC 161409 according to a Final Administrative Order in Case No. F03-0117. (Registrar’s Exhibit 10).

14. On or about April 18, 2003, Complaint 03-1573 was filed against DBMC 161409 applicable to contract date September 20, 2000, by Complainant, Stuart Kletke alleging wrongful acts which culminated in revocation by Final Administrative Order dated August 11, 2003. (Registrar’s Exhibit 11).

15. On September 20, 2003, the Registrar revoked DBMC 161409 according to a Final Administrative Order in case 03-1573. (Registrar’s Exhibit 12).

16. On or about March 21, 2003, Complaint F03-0063 was filed against DBMC 161409 applicable to contract date October 29, 2001, by Complainant, Banker Insulation of Northern Arizona, Inc., alleging nonpayment which culminated in revocation by Final Administrative Order dated August 26, 2003. It was ordered to pay $7,524.68. (Registrar’s Exhibit 13).

17. On October 5, 2003, the Registrar revoked DBMC 161409 according to a Final Administrative Order in case F03-0063. (Registrar’s Exhibit 14).

18. On or about December 5, 2002, complaint F03-0065 was filed against DBMC 161409 applicable to contract date March 3, 2002, by Complainant, American Marble Company, alleging nonpayment which culminated in revocation by Final Administrative Order dated January 6, 2003. It was ordered to pay $5,000.00. (Registrar’s Exhibit 15).

19. On February 15, 2003, the Registrar revoked DBMC 161409 according to a Final Administrative Order in case F03-0065. (Registrar’s Exhibit 16).

20. On or about November 4, 2002, complaint F03-0076 was filed against DBMC 161409 applicable to contract dates March 3, 2002 to July 5, 2002, by Complainant, Reliance Communications, Inc., alleging nonpayment which culminated in revocation by Final Administrative Order dated April 8, 2003. It was ordered to pay $7,261.49. (Registrar’s Exhibit 17).

21. On May 18, 2003, the Registrar revoked DBMC 161409 according to a Final Administrative Order in case F03-0076. (Registrar’s Exhibit 18).

22. On or about November 14, 2002, complaint F03-0088 was filed against DBMC 161409 applicable to contract date June 2002, by Complainant, Arrowhead Carpentry, alleging nonpayment which culminated in revocation by Final Administrative Order dated July 18, 2003. The Order found $1,552.50 owed by DBMC161409 to Complainant(s). (Registrar’s Exhibit 19).

23. On August 27, 2003, the Registrar revoked DBMC 161409 according to a Final Administrative Order in case F03-0088. (Registrar’s Exhibit 20).

24. Ms. Barnett did not disassociate herself from DBMC 161409 through the time of the above contracts. Ms. Barnett was a person named on DBMC 161409 when the act or omissions for which the license was discipline occurred.

25. Ms. Barnett was named on the revoked license of DBMC 161409 at the time the acts and omissions occurred and may not be named on Respondent’s license according to A.R.S. § 32-1161(C).

26. On August 30, 1999, the Registrar issued License No. 148215 to Cook Enterprises, Inc., dba Development Builders Management Company (DBMC 148215). (Registrar’s Exhibit 21).

27. Ms. Barnett was named as the qualifying party on DBMC 148215 and therefore she is a Person Named on DBMC 148215 according to A.R.S. § 32-1101(A)(6). (Registrar’s Exhibit 21).

28. Ms. Barnett was a qualifying party on DBMC 148215 from August 30, 1999, and remained as the qualifying party until disassociation from the license on January 17, 2001. (Registrar’s Exhibit 23).

29. On or about October 16, 2000, complaint T01-0396 was filed against DBMC 148215 applicable to contract date on or before August 4, 2000, by Complainant, Richard Vaughn, alleging poor work which culminated in revocation by Final Administrative Order dated November 1, 2001. (Registrar’s Exhibit 24).

30. On December 11, 2001, the Registrar revoked DBMC 148215 according to a Final Administrative Order in Case No. T01-0396. (Registrar’s Exhibit 25).

31. Ms. Barnett did not disassociate herself from DBMC 148215 throughout the time of the contract. Ms. Barnett was a person named on DBMC 148215 when the act or omissions for which the license was discipline occurred.

32. Ms. Barnett was named on the revoked license of DBMC 148215 at the time the acts and omissions occurred and may not be named on Respondent’s license according to A.R.S. § 32-1161(C).

33. Respondent’s License No. 295676 was suspended as of January 6, 2017, due to lack of a qualifying party. (Registrar’s Exhibit 26).

CONCLUSIONS OF LAW

1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

2. “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). A preponderance of the evidence is “[t]he 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 at p. 1220 (8th ed. 1999).

3. A.R.S. § 32-1154(A) in pertinent part includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license,

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.

4. A.R.S. § 32-1161(C) further provides that:

After revocation of a license upon any of the grounds set forth in section 32-1154, the license shall not be renewed or reissued for one year after final determination of revocation and then only on proper showing that all loss caused by the act or omission for which the license was revoked has been fully satisfied.

5. The Registrar has presented sufficient evidence to establish Respondent’s violation of A.R.S. § 32-1154(A)(20). Ms. Barnett is currently a person named on Respondent’s license. She is also named under another license in Arizona, License No. 161409 and License No. 148215, that is under suspension or revocation for any act or omission that occurred while she was named on the license. License No. 161409 has been revoked six times and License No. 148215 was revoked once, the basis for which all occurred while Ms. Barnett was named on the respective licenses.

6. Notably, Ms. Barnett indicated falsely or incorrectly in Respondent’s application for a contractor’s license that she had never been on a contractor’s license issued by Arizona or on a license that had been suspended, revoked, or otherwise disciplined. (Registrar’s Exhibit 2).

RECOMMENDED ORDER

In view of the foregoing, it is recommended that on the effective date of the final order in this matter, that Respondent Red Field Services, LLC’s, License Number 295676 is revoked.

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, April 2, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors