ALJDEC decisions subject to certification as final

2018A-04889-ROC · Registrar of Contractors · 2019-07-12

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 25, 2019 APPEARANCES: Patrick Michael Tilton for Respondent; Thomas Raine, Esq. for Complainant ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On January 14, 2019, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on March 8, 2019 at the Office of Administrative Hearing. The matter was continued and the hearing was conducted on June 25, 2019. 2. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and complaint. 3. Respondent OTS Electric, Inc. holds license numbers 192687 and 192688 issued by ROC. Patrick Michael Tilton is Respondent’s qualifying party and president of the corporation. 4. Mr. Tilton was also the qualifying party and part owner for Sundrop Solar LLC, which was licensed by ROC. As of the hearing date, Mr. Tilton had disassociated from Sundrop’s license. 5. ROC received a number of complaints against Sundrop and as pertinent to this matter, ROC imposed discipline against Sundrop in three cases. 6. In case number 2018-3075, ROC found that Sundrop had violated Ariz. Rev. Stat. sections 32-1154(A)(1), (A)(2), (A)(3) and (A)(22). Through an Order dated October 5, 2018, ROC revoked Sundrop’s license. 7. The Complainant in case number 2018-3075 received from the Registrar’s recovery fund a payout as a result of the infractions for which Sundrop’s license was revoked. The exact amount of that payout is not in evidence, but was estimated to be about $3200. 8. In case number 2018-3152, ROC determined that Sundrop had violated Ariz. Rev. Stat. sections 32-1154(A)(1), (A)(3), and (A)(22). Through an Order dated October 12, 2018, ROC revoked Sundrop’s license. The Complainant in case number 2018-3152 had not as of the hearing date filed a claim with the recovery fund. 9. In case number 2018-2958, ROC determined that Sundrop had violated Ariz. Rev. Stat. sections 32-1154(A)(3) and (A)(22). Through an Order dated September 27, 2018, ROC imposed against Sundrop a $500 civil penalty and it suspended Sundrop’s license for forty days. 10. ROC takes the position that none of the parties who were named on Sundrop’s license at the time the statutory violations occurred can hold a license until case numbers 2018-3075, 2018- 3152 and 2018-2958 are resolved. 11. For case number 2018-3075, ROC takes the position that the matter can be resolved if someone from Sundrop repays the recovery fund. 12. For case number 2018-3152, ROC takes the position that the matter can be resolved if the Complainant in that case provides ROC with information showing that she has entered into an agreement or a settlement with Sundrop. In some circumstances, ROC will also consider a matter such as case number 2018-3152 to be resolved if the licensee can show that it made a good faith effort to locate the Complainant, but was unable to do so. 13. For case number 2018-2958, ROC takes the position that the matter can be resolved if the civil penalty assessed against Sundrop is paid. 14. Mr. Tilton acknowledged that the above information is correct and he testified to the effect that he intends to resolve the three outstanding matters. 15. ROC requests that Respondent’s licenses be suspended until case numbers 2018-3075, 2018-3152 and 2018-2958 are resolved. CONCLUSIONS OF LAW 1. ROC bears the burden of persuasion in this matter. Ariz. Rev. Stat. § 41-1092.07(G)(2). 2. The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § R2-19-119. 3. 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). 4. An Administrative Law Judge Decision’s findings of fact shall be based exclusively on the evidence and on matters officially noticed. Ariz. Rev. Stat. § 41-1092.07(F)(6). 5. 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."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. 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). 8. The Administrative Law Judge may consider ROC’s administrative record. See Ariz. Admin. Code § R4-9-118. 9. Ariz. Rev. Stat. section 32-1154(A) provides that: The holder of a license or any person listed on a license pursuant to this chapter shall not commit any of the following acts or omissions: ***** 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.

10. ROC shall renew a license that has been suspended “upon proper showing that all loss caused by the act or omission for which the license was suspended has been fully satisfied.” Ariz. Rev. Stat. § 32-1161(A). 11. The preponderance of the evidence shows that Respondent is in violation of Ariz. Rev. Stat. section 32-1154(A)(20) because Mr. Tilton was named on Sundrop’s license when the events that led to Sundrop’s license being disciplined occurred. 12. The preponderance of the evidence also shows that case numbers 2018-3075, 2018-3152 and 2018-2958 have not been resolved. 13. Consequently, ROC has authority to suspend Respondent’s licenses.

RECOMMENDED ORDER IT IS ORDERED that on the effective date of the final Order in this matter Respondent’s license numbers 192687 and 192688 are suspended until ROC receives proof that the losses caused by Sundrop Solar LLC have been fully satisfied. 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 is forty days after the date of that certification. Done this day, July 12, 2019.

/s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826