ALJDEC decisions subject to certification as final

2016A-98-ROMC-ROC · Registrar of Contractors · 2018-04-27

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors,

COMPLAINANT,

v.

First Class Contractors,

License No: 298362

RESPONDENT.

No. 2016A-98-ROMC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 12, 2018

APPEARANCES: Bonnie Allan, Esq., Staff Attorney, Registrar of Contractors, Thomas C. Raine, Esq., Assistant Attorney General

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDINGS OF FACT

The Registrar referred this matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing regarding a Complaint and Citation against First Class Contractors, [hereinafter “First Class”].

First Class holds an Arizona Registrar of Contractors [the “Registrar] License number 298362 issued on June 4, 2014.

The Complaint and Citation were issued on January 18, 2018 alleging violations of A.R.S. §32-1154(A)(20) and §32-1161(C).

On January 26, 2018, First Class filed a timely Answer to the Complaint and Citation.

A Notice of Hearing setting a hearing at 1:00 pm on April 12, 2018 was issued and correct copies of the Notice of hearing were mailed to the First Class at its address of record.

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.”

First Class did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, respondent did not appear through an authorized member, employee or attorney. Consequently, Respondent did not present any evidence to defend its license.

A hearing was conducted on April 12, 2018.

The presiding Administrative Law Judge requested the Registrar to lay a factual basis for its Complaint and Citation.

Registrar’s Exhibits R-1 through and including R-14 were offered and admitted into evidence.

Registrar Staff Attorney Bonny Allan testified that Mary Maes-Aguirre is named as a member on the license of First Class. Also listed as an officer on the First Class license application is Kuuli Michelle Abramson.

Kuuli Michelle Abramson is listed as member, officer and Qualifying Party of Concierge Contractors, Inc. [hereinafter “Concierge] License No. 274051. Ms. Abramson was a member on License Number 274051 from conception and remains a person named as of the date of the date of Citation and Complaint in this case issued on January 18, 2018.

On or about December 14, 2015, the Registrar suspended License Number 274051 pursuant to a Final Administrative Order in Case No. 2014-4572. In Case Number 2014-4572, on November 7, 2014, a Complaint was lodged against License Number 274051 which alleged and evidence proved that Concierge, in violation A.R.S. §32-1154(10), failed to pay Exclusive Builders LLC the sum of $9,980.00. Concierge was Ordered to pay Exclusive Builders LLC $9,980.00 and Ordered its license suspended until the Ordered amount was paid in full by certified funds. The amount ordered was not paid as Ordered resulting in a license suspension. The amount remains unpaid.

Ms. Allan testified that on or about January 8, 2015, Complaint 2015-79 was lodged against License Number 27405. The Complaint was filed January 8, 2015 by Complainant Dale Boat wherein poor workmanship was established. The Order required payment of $500.00 civil penalty. The civil penalty was not timely paid. On or about January 11, 2016, the Registrar revoked License No. 274051 pursuant to a Final Administrative Order in Case Number 2015-79 The civil penalty remains unpaid.

Ms. Abramson is listed on Concierge’s license at the time of the acts causing it to be disciplined. .

The civil penalty assessed in Case Number 2014-4572 is unpaid and the order in Case Number 2014-4572 has not been paid or a settlement noticed to ROC.

CONCLUSIONS OF LAW

The Registrar of Contractors has jurisdiction over Complaint No. 2017A-4793-CHC-ROC under the authority of A.R.S. § 32-1101, et seq., a section that enables the Registrar to impose disciplinary sanctions against licensees for the violations noted at A.R.S. § 32-1154(A). PVTS LLC dba Phoenix Valley Tree Service is a licensee.

Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense.

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 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).

By its failure to appear, Respondent has defaulted. Inasmuch as by its default Respondent has presented virtually no evidence to defend against the Citation and Complaint, then Respondent has failed to meet its burden of proof.

By a preponderance of the evidence the Administrative Law Judge finds:

Mary Maes-Aguirre is named as a member on the license of First Class along with Kuuli Michelle Abramson.

Kuuli Michelle Abramson is named on the license of Concierge, an entity whose contractor’s license has been and remains revoked.

The license No. 274051 of Concierge was first suspended and then revoked for acts and omissions which occurred while Kuuli Michelle Abramson was named on the Concierge license.

None of the loss caused by the acts or omissions for which the Concierge license was revoked have been fully satisfied and, therefore, as a matter of law, First Class is not eligible to hold an Arizona contractor’s license

Ms. Abra1nson did not disassociate herself from License No. 274051.

Ms. Abramson was a responsible person on License No. 274051 when the act or omissions occurred for which the license disciplined. [See Exhibits C-2 – C-4].

Ms. Abramson was named on the revoked license of Concierge, License Number 274051 at the time the acts and omissions occurred

Ms. Abramson may not be named on Respondent's license according to A.R.S. § 32-1161(A) and (C)...

A sufficient factual basis exists to support the ROC Citation and Complaint.

RECOMMENDED ORDER

IT IS RECOMMENDED it be ordered that as of the effective date of the Final Order in this matter, the license of First Class Contractors, LLC number 298362 shall be revoked.

Done this 26th day of April, 2018

Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors