ALJDEC decisions subject to certification as final

2018A-1335-ROMC-ROC · Registrar of Contractors · 2018-07-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors

COMPLAINANT

-v-

Iverson Homes Inc.

License No. B.294811

RESPONDENT

No. 2018A-1335-ROMC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: July 7, 2018

APPEARANCES: Jim Dimond, Sr. Construction Investigator,

Randy Carson, Investigator, Bonny Alan, John Tellier, Esq., Attorney for the Registrar.

ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson

_____________________________________________________________________

FINDING OF FACT

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing regarding the Registrar’s issuance of a Citation on April 24, 2018.

Through attorney Mark Hanson, Esq., Respondent filed its Answer to the Citation, a general denial, on or about May 8, 2018.

On May 29, 2018, the Registrar issued a Notice of Hearing setting a hearing at 1:00 pm FORMTEXT on FORMTEXT July 7, 2018. The Registrar mailed copies of the Notice of Hearing to Respondent 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.”

A hearing was held on FORMTEXT July 7, 2018. By 1:15 pm, no one for the Respondent had appeared. As a courtesy, a telephone call was made to Mark Hanson, Esq. informing him that hearing in this matter is commencing at 1:20 pm and that witnesses and the court were waiting for the Respondent and/or counsel to appear. Mr. Hanson stated that since the Respondent is out of business there is no reason for him to appear and that, in fact, he was not going to appear.

Respondent 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.

The Citation in this matter alleges the following charges:

Charge 1: A.R.S. § 32-1154(A) – 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:

A.R.S. § 32-1154(A)(14) Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth on the license.

The conduct and circumstances set forth in Paragraphs 1-4 above constitute a violation of this section. Respondent was contracting under the name of Iverson Custom Homes.

Charge 2: Two violations of A.R.S. § 32-1154(A) – 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:

(17) Contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.

On October 3, 2014, the Registrar issued License No.: B.294811 to Respondent.

The Registrar’s investigator, Jim Dimond, investigated Respondent for acting in the capacity of a contractor under any license issued other than as set forth upon its license and for contracting while license is suspended.

On or about April 19, 2018, Jim Dimond was advised by the Yavapai permitting agency that a final inspection had been called in for the Talking Rock project upon which the warning letters had been sent on March 27, 2018.

Respondent was suspended on December 4, 2017 for lack of bond, which suspension has not been cured. Respondent was also suspended on March 23, 2018 as a discipline, which suspension has not been cured.

CONCLUSIONS OF LAW:

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

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

The burden of persuasion generally at an administrative hearing falls to the party asserting a claim, right or entitlement, or an Agency seeking to impose a penalty. Further, the standard of proof is that of the “preponderance of the evidence”. Proof by a preponderance means that the evidence is sufficient to persuade the finder of fact that the proposition is “. . . more likely true than not.” The evidence taken as a whole must convince the decision maker that the party who bears the overall burden of persuasion, in this case, the Registrar. J B Stucco, L.L.C., is more probably correct on the issue(s) in dispute.

“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).

Neither the Respondent nor the Respondent’s attorney appeared at hearing on this matter. The Respondent presented no evidence to defend its license or to respond to the Citation.

The evidence established, by a preponderance, that the Respondent violated A.R.S. § 32-1154(A) by “Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth on the license” in that Respondent was contracting under the name of Iverson Custom Homes, a name other than the name and license number of the licensed contractor Iverson Homes Inc., License No. B.294811

The evidence established, by a preponderance, that the Respondent on two separate occasions, violated A.R.S. § 32-1154(A)(17) by “Contracting or offering to contract or submitting a bid while the Respondent’s license was under suspension.

That the Respondent continued to act in violation of A.R.S. § 32-1154(A) and A.R.S. § 32-1154(A)(17) after having received warning letters from the Registrar to cease its unlawful conduct is an aggravating factor. Respondent’s failure to appear at the hearing without cause or notice, a hearing which it by right demanded, is an aggravating factor. Respondent’s prior history of discipline with the Registrar is an aggravating factor.

In light of the aggravating factors hereinabove stated and the nature of the conduct demonstrated by the evidence in this case, the Respondent’s License B.294811 should be revoked.

RECOMMENDED ORDER

Based upon the foregoing findings and conclusions,

IT IS HEREBY RECOMMENDED that on the effective date of the Registrar’s Final Order that Respondent Iverson Homes Inc. License No. B.294811 be REVOKED.

Done this day, July 5, 2018.

/s/ Randolph D. Wolfson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors