ALJDEC decisions subject to certification as final

2017A-5468-LDA-ROC · Registrar of Contractors · 2018-05-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors,

IN THE MATTER OF THE

APPLICATION OF:

Sun Valley Nursery LLC,

PENDING LICENSE NO: 315383

No. 2017A-5468-LDA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 16, 2018.

APPEARANCES: Brian Kirby, Chief of Licensing, Registrar of Contractors, Michael Raine, Esq., Attorney for the Registrar, Flores Ivan, Esq. Attorney for the Respondent Sun Valley Nursery, LLC, Ashely Prenovost, Applicant and named Qualifying Party.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

______________________________________________________________________

The parties presented evidence on whether license applicant Sun Valley Nursery, LLC has demonstrated the good character and reputation required to be licensed by the Registrar as a contractor in Arizona and whether a member of the Applicant engaged in contracting business without first having been licensed, within one year of the application is eligible for licensure. Based on the entire record and applicable law, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order to the Registrar of Contractors.

FINDINGS OF FACT

On or about August 14, 2017, the Registrar of Contractors [hereinafter, ”ROC”] received Application No. 315383 [hereinafter, the “Application”] for a Landscaping and Irrigation Systems license [CR-21] from Sun Valley Nursery LLC [hereinafter “Sun Valley”]. Member Ashely Prenovost is listed in the Application as The Qualifying Party and a Member of Sun Valley [hereinafter “Prenovost”]. Rodrigo Plascencia [hereinafter, “Plascencia”] is named as a member on the pending Application for the Applicant. Mr. Plascencia was the signatory on part four of the pending Application form of the Applicant.

Contained in the Application on page 2, question 20, is the question “[h]ave you ever received a citation or been convicted for contracting without a license?'' For the Applicant, the response to question 20 provided is “No.”

On September 27, 2017, Bonny Allan, Staff Attorney, Legal Department, Arizona Registrar of Contractors, issued a Notice of License Denial for .License Application No. 315383 [hereinafter the “Denial”]..

The grounds for the ROC Denial of Application No. 315383 [hereinafter the “Application”]. were stated in the Denial as follows:

Mr. Plascencia failed to establish good character and reputation due to engaging in contracting without a license in violation of A.R.S. § 32 ... 1122(D);

Mr.Plascencia failed to establish good character and reputation because he made material misrepresentations upon the license application in violation of A.R.S. § 32-1122(D) and § 32-1154(A)(5).

Mr.Plascencia engaged in contracting business without first having been licensed, within one year of the application in violation of A..R.S. § 32-1122(E).

A timely appeal of the Denial decision was filed and this matter set for hearing on April 16, 2018 before the Office of Administrative Hearings, an agency independent from the ROC. On April 16, 2018, a hearing was conducted to consider the merits of the Applicant’s appeal.

Mr. Plascencia was not called to testify, did not appear and provided no testimony at the April 16, 2018 hearing.

At the April 16, 2018 hearing [the “OAH Hearing”], Mr. Brian Kirby, Chief of Licensing for the ROC testified that he is the official of the agency who made the final decision to deny the Application. He testified that Mr. Plascencia stated in his Application that he was a 50% owner and member of Sun Valley Nursery LLC. He testified that contrary to the representation in the Application’s question 20, Mr. Plascencia has a long negative history at the ROC for prior unlicensed activity. Reviewing Exhibits C-5 through and including Exhibit C-16, Chief Kirby testified Mr. Plascencia has been cited for unlicensed contracting violations in 9 cases:

ROC Case 2013-485: Cease & ·Desist Order and Civil Citation for Advertising without a contractors license resulting in an order assessing a Civil penalty of $1,500.00; [See, Exhibit C7]

Desert Ridge Justice Court Case 2014-1922: Complaint for poor work by Dreaming by Design Landscaping filed by John Eickelmann [Exhibit C-8] resulted in the Maricopa County Attorney’s Office filing three counts of advertising without a contractors license and one count of contracting without a license against Mr. Plascencia in the Desert Ridge Justice Court. By plea agreement, Mr. Plascencia plead guilty to contracting without a license, a Class One Misdemeanor. The three counts of advertising without a license were dismissed as a part of Mr. Plascencia plea agreement. A civil penalty assessed for $2,500.00. [See, Exhibit C8].

ROC Case 2014-2173 - Cease & Desist Order and Civil Citation arising from a Complaint filed by Paul Johnson - Poor workmanship violation. Civil Penalty assessed for $2,500.00. [Exhibit C9].

ROC Case 2015-4574 - Cease & Desist Order and Civil Citation – Advertising without a contractors license violation. Civil Penalty assessed for $1,000.00. [See, Exhibit C10].

ROC Case 2016-1077 - Cease & Desist Order and Civil Citation - Advertising without a contractors license violation. Civil Penalty assessed for $1,500.00 [See, Exhibit C11].

Desert Ridge Justice Court Case JC2017 34284001,ROC Case 2016-3288 - Complaint for poor workmanship filed with the ROC by Amelia Regan against Dreaming by Design and Rod Placensia resulting in Maricopa County Attorney’s Office filing Class 1 misdemeanor charges for Contracting without a License against Mr. Placensia. Criminal charges are pending. [Exhibit C12].

ROC Case 2016-3777 - Cease & Desist Order and Civil Citation for Advertising without a contractors license violation. Civil Penalty assessed for $1,500.00. [See, Exhibit C13].

ROC Case 2016-4942- Cease & Desist Order and Civil Citation -Advertising without a license violation - Civil Penalty assessed for $2,500.00. [See, Exhibit C14].

ROC Case 2017-1009 - Cease & Desist Order and Civil Citation: Advertising without a license violation. Civil Penalty assessed for $1,500.00. [See, Exhibit C15].

ROC Case 2014-4421 - Cease & Desist Order and Civil Citation: Advertising without a license violation, contracting without a license... Civil Penalty assessed for $2,500.00 [See, Exhibit C16].

Chief Kirby indicated that the ROC issued nine Cease & .Desist Orders from 2013 through 2017 to Mr. Placensia requiring him to immediately cease and desist all unlicensed contracting in the State of Arizona. Chief Kirby testified that Mr. Plascencia's unlicensed violations in the years 2016 and 2017 were within one year of the current Application for Sun Valley Nursery LLC.

Chief Kirby testified regarding the Applicant’s response to question 20 of the Application, that at the time of his review of the Application, the ROC was aware of Mr. Plascencia’s prior unlicensed activity and was aware of the conviction records of Mr. Plascencia. He discussed the exhibits offered to prove Mr. Plascencia violations show that there are 5 cases of contracting without a license within one year prior to the August 14, 2017, Application. He testified that all applicants on the license application are required to establish good character and reputation. He testified that contracting without a license is the very definition of bad character in our Arizona Statutes.

It is Chief Kirby’s opinion and in this case he determined, that although the ROC may establish a lack of good character and reputation based on an applicant’s prior illegal contracting conduct, he concedes that the ROC does have discretion under facts stated in the statue to grant a license if ROC finds the actions or circumstances involved in the prior illegal contracting conduct “...to be excusable if there was reasonable doubt as to the need for licensure or the actions of the applicant did not result in an unremedied hardship or danger or loss to the public.” In this case, he said, there is no reasonable doubt that Mr. Plascencia’s prior unlicensed conduct was an activity that required licensure and “that actions of the applicant ...result[d] in an unremedied hardship or danger or loss to the public since the victims of Complaints filed by members of the public have not been made whole nor has Mr. Plascencia paid anything on his civil citation penalties. Chief Kirby indicated that the statute’s “excuse” clause is inapplicable since Mr. Plascencia’s prior conduct leaves no doubt that licensure is required and since Mr. Plascencia’s conduct has caused unremediated hardship or loss to the public. In light of the repeated violations for conducting and advertising without a license that Mr. Plascencia brings to this Application, it is Chief Kirby’s positon that the lack of Mr. Plascencia’s good character and reputation was established and is one basis for the denial of license.

He testified under cross-examination that his decision to deny the Application involved no discretion on his part because Mr. Plascencia is ineligible for licensure, regardless of character and reputation. He is ineligible – first - because his Application was filed within a year of his unlicensed contracting violations and – secondly - none of the penalties or assessment against him have ever been paid. Neither of these two reasons for ineligibility for licensure allow the exercise of discretion, he said.

Testifying for the Applicant was Ashley Prenovost. She testified that she has known Mr. Plascencia for a number of years. She said that Mr. Plascencia employed her for at least three years when he was operating an unlicensed contractors’ business called Dreaming by Design. She confirms that she is the 50% owner of Sun Valley Nursery LLC. as is represented on the Application. She admits that Mr. Plascencia is a listed member and owner of the other 50% of the LLC on the Application of Sun Valley Nursery LLC. However, she contends that Mr. Placencia is being taken off of the membership records of the Corporation Commission’s LLC records. She denies that she has agreed to or has paid Mr. Placencia any money or thing of value for his share of the LLC. She confirms that the address of Dreaming by Design appearing in advertisements made without a contractors license is the same as the address for Sun Valley Nursery, LLC. and is the same address that Ms. Prenovost provides in the Application as her residence address. Mr. Plascencia also lists his residence address in the Application as the same address of the qualifying party, Ms. Prenovost, which is the same address of the Sun Valley Nursery, LLC listed in the Application. Ms. Prenovost was unable to testify about the day to day operations of Sun Valley Nursery, LLC, its debts, assets or its financial systems since she claims no knowledge about those things. She states that he does have an income, but cannot remember who signs her checks. She said she did not do any investigation or background check on Mr. Placencia before becoming a member of Sun Valley Nursery, LLC and was not aware of his prior contracting with a license and advertising without a license Citations, Cease and Desist Orders or criminal charges for contracting with a license and advertising without a license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq and. A.R.S. § 41-1092.03 et seq.

At a hearing on an agency's denial of a license or permit or a denial of an application or request for modification of a license or permit, the applicant has the burden of persuasion.

Thus, in this administrative proceeding, the Applicant bears the burden of proof by a preponderance of the evidence.

“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:

“evidence which is of greater weight or more convincing than evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.”

black’s law dictionary at page 1064 (6th ed. 1990).

A.R.S. § 32-1122(C) and A.R.S. §32-1122(D) states the Arizona Legislature’s requirements to qualify for a contractor’s license:

[E]ach person shall be of good character and reputation. Lack of good character and reputation may be established by showing that a person has engaged in contracting without a license or committed any act that, if committed or done by any licensed contractor, would be grounds for suspension or revocation of a contractor’s license....

To obtain a license under this chapter, a person shall not have had a license refused or revoked, within one year before the person's application, or shall not have engaged in the contracting business, nor shall the person have submitted a bid without first having been licensed within one year before the person's application, nor shall a person act as a contractor between the filing of the application and actual issuance of the license. The registrar may find any of those actions or circumstances to be excusable if there was reasonable doubt as to the need for licensure or the actions of the applicant did not result in an unremedied hardship or danger or loss to the public. A person who has been convicted of contracting without a license is not eligible to obtain a license under this chapter for one year after the date of the last conviction.”

“In applying a statute . . . words are to be given their ordinary meaning, unless the legislature has offered its own definition of the words or it appears from the context that a special meaning was intended.” Mid Kansas Federal Sav. and Loan Ass’n v. Dynamic Dev. Corp., 167 Ariz. 122, 128, 804 P.2d 1310, 1316 (1991). “A cardinal rule of statutory interpretation is to give full effect to each statutory word or phrase so that no part is rendered void, superfluous, contradictory or insignificant.” Westburne Supply, Inc. v. Diversified Design and Construction, Inc., 170 Ariz. 598, 600, 826 P.2d 1224, 1226 (Ct. App. 1992).

By a preponderance of the evidence, it is established that Mr. Placencia was a 50% owner and member of Sun Valley Nursery LLC at the time and date of the Application. By a preponderance of the evidence, it is established that Mr. Plascencia has had a long negative history at the ROC for prior unlawful conduct as an unlicensed contractor in that Mr. Plascencia has been issued Citations for unlicensed contracting violations in 9 cases.

By a preponderance of the evidence, it is established that the ROC correctly determined Mr. Placencia’s prior unlicensed contracting conduct was not “...to be excusable...” because “...there was no reasonable doubt shown as to the need for licensure. Moreover, the actions of the Mr. Placencia resulted, by a preponderance of the evidence, in unremedied hardship ... or loss to the public...” since no payment for the numerous civil penalties arising from Citations for Mr. Placencia’s contracting and/or advertising without a license have been made. Further, there is no evidence of record to suggest that Mr. Placencia repaired injury or damage caused by the poor workmanship shown in the Complaints filed by victims of Mr. Placencia’s poor workmanship with the ROC. Therefore, the Applicant has failed to carry its burden of proof, by a preponderance of the evidence, to establish that Mr. Placencia is a person of good reputation and character.

By a preponderance of the evidence, it is established that Mr. Placencia engaged in unlicensed contracting activities as evidenced by the nine Unlicensed Cease and Desist Orders issued by the ROC. Mr. Plascencia is not eligible for a contractors license because Mr. Plascencia failed to establish good character and reputation due to engaging in contracting without a license in violation of A.R.S. § 32 -1122(D);

It is established, by a preponderance of the evidence, that Mr. Placencia failed to disclose on the Application, question 20, that Mr. Plascencia has been issued Citations for unlicensed contracting violations in 9 cases or that he was convicted of contracting without a license in the Desert Ridge Justice Court Case 2014-1922:, a Class 1 misdemeanor. It is established by a preponderance of the evidence that Mr. Placencia signed the Application. If Mr. Placencia had been called to testify in this case, perhaps he could have provided a reasonable explanation for Mr. Placencia to have falsely answered question 20 of the Application. But, he was not called to testify. The only credible evidence of record demonstrates by a preponderance of the evidence, that the Applicant failed to establish good character and reputation because Mr. Placencia made material misrepresentations upon the license application in violation of A.R.S. § 32-1122(D) and § 32-1154(A)(5).

By a preponderance of the evidence, Mr. Placencia engaged in contracting business without first having been licensed, within one year of the application in violation of A..R.S. § 32-1122(E).

By a preponderance of the evidence, the Applicant failed to meet its burden to prove it is qualified or that it is entitled to an Arizona contractors license.

By a preponderance of the evidence, the ROC did not abuse the discretion that the legislature granted in A.R.S. §31-1122 et seq. in denying a contractor’s license to Sun Valley Nursery LLC, Pending License Number 315383.

RECOMMENDED ORDER

IT IS RECOMMENDED that the denial of the application contractor’s license from Sun Valley Nursery, LLC be confirmed as a proper exercise of the Registrar’s statutory duty and discretion.

FURTHER IT IS RECOMMENDED dismissing the Respondent’s appeal.

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, May 5, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors