ALJDEC decisions subject to certification as final

2017A-4031-LDA-ROC · Registrar of Contractors · 2017-10-13

Registrar of Contractors,

IN THE MATTER OF THE

APPLICATION OF:

Yavapai Water Production, LLC,

PENDING LICENSE NO:

178489

No. 2017A-4031-LDA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 4, 2017

APPEARANCES: Kimble MyClymonds appeared on behalf of Yavapai Water Production, LLC. Assistant Attorney General Thomas Raine appeared on behalf of the Arizona Registrar of Contractors.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________FINDINGS OF FACT

1. On September 20, 2002, the Registrar first issued contractor’s license No. 178489 to Yavapai Water Production, LLC (“Yavapai”). Kimble MyClymonds is a member of Yavapai.

2. In October of 2016, Mr. MyClymonds filed an application to renew Yavapai’s contractor’s license online. On October 6, 2016, Mr. MyClymonds paid the application renewal fee in the amount of $590 online.

3. Yavapai was required to renew its license by September 30, 2016.

4. The Registrar did not receive an application to renew Yavapai’s license and the required fee by September 30, 2016.

5. Yavapai’s license was suspended by operation of law from October 1, 2016 to October 6, 2016.

6. On July 19, 2017, Mr. MyClymonds filed an application for an exemption from the qualifying party rule for Yavapai.

7. On August 3, 2017, the Registrar issued a notice denying the exemption application because the Registrar determined that Yavapai’s license had not been in effect for five years because Yavapai’s license was suspended from October 1, 2016 to October 6, 2016.

8. Yavapai filed a timely appeal to the denial.

9. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

10. On August 11, 2017, the Registrar issued a Notice of Hearing (“NOH”) setting the above entitled matter for hearing on October 4, 2017. The NOH provided that the issue for hearing was the denial of Yavapai’s application for a contractor’s license.

11. At hearing, the Registrar presented the testimony of Brain Kirby, the Chief of Licensing for the Registrar and Bonny Allan, the Registrar’s attorney, and submitted exhibits 1 through 8. Mr. MyClymonds testified on his own behalf.

12. Mr. MyClymonds testified that he could not recall whether he filed the application to renew his license before October of 2016. Mr. MyClymonds testified that he filed his application to renew his license and paid the required fee online. Mr. MyClymonds testified that Yavapai’s license was not suspended until it applied for the Qualifying Party Exemption. Mr. MyClymonds contended that Yavapai did not receive notice in the mail 30 days prior to the license expiring of the renewal deadline.

Mr. MyClymonds testified that he received the electronic mail notifications that his license would expire about two weeks prior to the application date.

13. The Registrar’s position was that the Registrar did not receive Yavapai’s renewal application and fee until October 6, 2016. The Registrar contended that it notifies licensees 30 days prior to the license expiration date of the renewal deadline. The Registrar contended that because Yavapai’s license was suspended from

October 1, 2016 to October 6, 2016, Yavapai’s license was not in effect for five years prior to the July 19, 2017 Application for Qualifying Party Exemption. The Registrar contended that Yavapai’s license was not in effect because it could not engage in contracting during its suspension.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1122.

Applicant bears the burden of proof to establish that it meets statutory qualifications for a contractor’s license by a preponderance of the evidence. 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. § 32-1125 provides, in relevant part, as follows:

A. Except as provided in section 32-4301, a license issued under this chapter shall be suspended on the day following its renewal date by operation of law. An application for renewal of any current contracting license addressed to the registrar, with a valid bond or cash deposit on file with the registrar, accompanied by the required fee and received by the registrar or deposited in the United States mail postage prepaid on or before the renewal date shall authorize the licensee to operate as a contractor until actual issuance of the renewal license. The registrar may refuse to renew a license if a licensee or person has committed or been found guilty of any act listed in section 32-1154.

B. A license which has been suspended by operation of law for failure to renew may be reactivated and renewed within one year of its suspension by filing the required application and payment of the application fee in the amount provided for renewal in this chapter in addition to a fifty dollar fee. When a license has been suspended for one or more years for failure to renew, a new application for a license must be made and a new license issued in accordance with this chapter.

C. A licensee may make written application to the registrar for exemption from a qualifying party. The applicant shall show to the satisfaction of the registrar that during the past five years:

1. The license has been in effect.

2. A transfer of ownership of fifty per cent or more of the stock, if applicable, or beneficial interest, in the licensee has not occurred.

3. No more than five valid complaints which have not been resolved by the licensee, as determined by the registrar, have been filed against the licensee.

4. The evidence of record supports the conclusion that Applicant did not file an application to renew his license and pay the required fee until October 6, 2016. The evidence of record supports the conclusion that Applicant‘s contractor’s license was suspended by operation of law from October 1, 2016 to October 6, 2016.

5. Yavapai failed to establish by a preponderance of the evidence that its license had been in effect during the five years prior to the July 19, 2017 Qualifying Party Exemption Application.

6. The evidence of record supports the Registrar’s denial of Yavapai’s Application for a Qualifying Party Exemption.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that the denial of Yavapai Water Production, LLC License Application for a Qualifying Party Exemption 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 will be forty days from the date of that certification.

Done this day, October 24, 2017