ALJDEC decisions subject to certification as final
2017A-110-RFA-ROC · Registrar of Contractors · 2017-03-30
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Registrar of Contractors,
COMPLAINANT,
v.
DeMille Global LLC,
License No: 297375
RESPONDENT.
No. 2017A-110-RFA-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 15, 2017
APPEARANCES: The Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine. Respondent DeMille Global LLC was represented by Kindra Deneau.
ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer
_____________________________________________________________________
FINDINGS OF FACT
On December 8, 2014, VIA International, Inc. (VIA) applied to the Registrar of Contractors (Registrar) for a CR-67 Contractor’s License. On the application, Jeffrey Allen McGehee was identified as the Qualifying Party. That application was approved and VIA was issued License Number 296018.
On October 5, 2015, Mr. McGehee filed a Notice of Qualifying Party Disassociation from License Number 296018 with the Registrar.
On March 5, 2016, DeMille Global, LLC (Respondent) applied to the Registrar for a CR-67 Contractor’s License. On the application, Daniel James Steigler was identified as the Qualifying Party. That application was approved and Respondent was issued License Number 297375.
On April 4, 2016, Respondent filed a New Qualifying Party Application indicating Mr. Steigler was resigning as the Qualifying Party and adding Mr. McGehee as the Qualifying Party. On May 23, 2016, that application was approved.
On June 20, 2016, the Registrar received a complaint against VIA alleging abandonment of a project. The Complaint alleged that the work was not completed and that the last work performed on the project was on Monday, September 28, 2015. The Registrar designated the complaint as Case No. 2016-2115
On July 21, 2016, the Registrar issued a Citation to VIA in Case No. 2016-2115. This Citation alleged a violation of A.R.S. § 32-1154(A)(1) with respect to a project at the complainant’s home.
On August 16, 2016, the Registrar issued a Final Administrative Decision and Order in Case No. 2016-2115 in which the Registrar found that, because VIA failed to file an answer to the Citation as required by A.R.S. § 32-1155(A), VIA was deemed to have admitted the allegations contained in the Citation. As a result of the violation, VIA’s license was suspended for a period of seven days.
On December 30, 2016, the Registrar issued a Default Decision, Order, and Award in Case No. 2016-2115 indicating that the complainant in that case should be issued a payment from the Residential Contractors’ Recovery Fund (Fund) in the amount of $10,579.36 based on the damages sustained as a result of VIA’s acts or omissions.
On January 10, 2017, the Registrar issued a Notice and Order Imposing § 32-1139(B) Suspension(s) to Respondent indicating that the date of the act or omission that led to the Fund award against VIA was on September 28, 2015, and that Mr. McGehee appeared on the license of VIA on the date of the acts or omissions that led to the Fund payout. As a result, the Registrar indicated it was required to suspend Respondent’s license pursuant to A.R.S. § 32-1139(B) until the amount paid from the Fund in Case No. 2016-2115 was repaid to the Registrar.
Mr. McGehee testified that his last day of work at VIA was Friday, September 25, 2015, and that he submitted the Notice of Qualifying Party Disassociation within 15 days of his disassociation as required by A.R.S. § 32-1167(A).
Respondent submitted payroll records and presented the testimony of Joshua Thompson, a former VIA employee, evidencing that Mr. McGehee’s last day of work at VIA was Friday, September 25, 2015.
Respondent argued that VIA did not abandon the project on Monday, September 28, 2015, because it had met with the complainant on that day to discuss what work needed to be done and because the complainant kept trying to contact VIA regarding the work to be done through the end of October 2015. Respondent asserted that the actual abandonment occurred when the complainant learned that VIA was closing its doors and determined no further work would be done.
The Registrar asserted that the date of the abandonment was September 28, 2015, and because Mr. McGehee did not file the Notice of Qualifying Party Disassociation until October 5, 2015, Mr. McGehee was still on VIA’s license at the time of the abandonment that led to the payout from the Fund.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1122.
The Registrar bears the burden of proof by a preponderance of the evidence to establish that cause exists to discipline Respondent’s licenses. See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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.R.S. § 32-1139(B) provides as follows:
If any amount is paid from the fund in settlement of a claim arising from the act, representation, transaction or conduct of a residential contractor, the license of the contractor shall be automatically suspended by operation of law until the amount paid from the fund is repaid in full, plus interest at the rate of ten per cent a year. Any person who is or was, at the time of the act or omission, named on a license that has been suspended because of a payment from the recovery fund is not eligible to receive a new license or retain another existing license that also shall be suspended by operation of law, nor shall any suspended license be reactivated, until the amount paid from the fund is repaid as provided in this subsection.
A.R.S. § 32-1167(A) provides as follows:
If a person who qualified for a license ceases for any reason whatsoever to be connected with the licensee, both the licensee and the qualifying party shall notify the registrar in writing within fifteen days after such disassociation.
The undisputed evidence established that Mr. McGehee’s last day of employment with VIA was September 25, 2015. Mr. McGehee then filed the required Notice of Qualifying Party Disassociation with the Registrar on October 5, 2015, within 15 days of the date of his disassociation from VIA as required by A.R.S. § 32-1167(A).
Nothing in A.R.S. § 32-1167(A) necessitates a finding that a qualifying party’s disassociation is not effective until the Notice of Qualifying Party Disassociation is received by the Registrar. In fact, the plain language of the statute allows that the notice to the Registrar may be filed up to 15 days after the qualifying party’s actual date of the disassociation.
Thus, Mr. McGehee’s date of disassociation was September 28, 2015, even though the Notice of Qualifying Party Disassociation was not received by the Registrar until October 5, 2015.
The undisputed evidence established that a representative of VIA met with the complainant in Case No. 2016-2115 on September 28, 2015. No one argued that VIA abandoned the contract prior to September 28, 2015. Because the abandonment occurred after Mr. McGehee had disassociated from VIA on September 25, 2015, he cannot be considered to have been on the license on September 28, 2015, the earliest date the abandonment may have occurred.
Therefore, the Registrar failed to establish that Respondent’s license should be suspended.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that on the effective date of the Registrar of Contractors’ Order in this matter, the Registrar of Contractors’ Notice and Order Imposing § 32-1139(B) Suspension(s) in Case No. 2017-110 be quashed and Respondent’s license be reinstated.
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 40 days from the date of that certification.
Done this day, March 30, 2017.
/s/ Tammy L. Eigenheer
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors