FINACT2018A-1948-ROMC-ROC.pdf

2018A-1948-ROMC-ROC · Registrar of Contractors · 2018-09-20

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Arizona Registrar of Contractors, Case No. 2018-1948

COMPLAINANT, Docket No. 2018A-1948-ROMC-ROC

v. FINAL ADMINISTRATIVE DECISION AND Henry Beckman Enterprises, ORDER DBA: Cowboy Cooling and Heating, License No. 304063,

RESPONDENT.

Under A.R.S. § 41-1092.08(B), the Registrar may review and accept, modify, or reject an administrative law judge’s written decision. If the Registrar modifies or rejects that decision, then the Registrar must provide written justification setting forth the reasons for the modification or rejection. REGISTRAR’S MODIFICATION In this case, a hearing was held, and the administrative law judge issued a written decision. See Administrative Law Judge Decision, attached. The Registrar reviewed that decision and hereby modifies it. The administrative law judge determined that “It has been proven, by a preponderance of the evidence, that in case number 2017-1762, an Arizona Residential Contractors Recovery Fund [the “Fund”] payout was made to the victim/claimant Ms. Kay Woods as a direct result of the act or omissions AC in AZ the amount of $10,391.00.” See ALJ Dec. 4:22-25. However, the Recovery Fund did not approve a payout to Ms. Woods. Rather, in Case No. 2017-1762, Ms. Woods applied for a payout amount of $10,391.00, the Fund rejected Ms. Woods’ request, and the Office of Administrative Hearings upheld the Registrar’s rejection. Therefore, the Registrar modifies the Administrative Law Judge Decision to correct the record and note that Ms. Woods did not receive a payout from the Recovery Fund in Case No. 2017-1762.

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 CONCLUSION

The Registrar modifies the Administrative Law Judge Decision by:

• Striking lines 21-26 on page 4, and lines 1-2 on page 5 of the Decision; and

• Striking the Administrative Law Judge Decision’s Recommended Order on page 5 of the

Decision and replacing it with “IT IS RECOMMENDED that Henry Beckman Enterprises,

License No. 304063 be suspended until the Registrar of Contractors receives sufficient proof

that David Johnson Henry is removed as a person listed on License No. 304063. IN THE

ALTERNATIVE, pursuant to A.R.S. § 32-1161, if the Registrar receives sufficient proof that

all loss caused by the acts or omissions in Case Nos. 2017-1762 and 2017-1549 has been fully

satisfied, the Registrar may lift the suspension on License No. 304063.”

The Registrar accepts the remainder of the Administrative Law Judge Decision which becomes

effective on October 28, 2018.

Dated this 18th day of September 2018.

Registrar of Contractors /s/ Nicole Sornsin ----------------------------------------------------------- Nicole Sornsin Assistant Director, Legal and Recovery Fund Copy mailed via USPS First Class mail and via electronic mail this 18th day of September 2018 to: Respondent Henry Beckman Enterprises DBA: Cowboy Cooling and Heating PO Box 5394 Peoria, AZ 85385-5394 And copy electronically mailed this same date to: Registrar’s Counsel John Tellier, Assistant Attorney General Office of Administrative Hearings Randolph D. Wolfson, Administrative Law Judge Case No. 2018-1948/an

of 2 REGISTRAR OF CONTRACTORS 1700 W. Washington St. Suite 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 1-877-692-9762 RECEIVED 8.21.2018 ROC LEGAL IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors, No. 2018A-1948-ROMC-ROC

COMPLAINANT, ADMINISTRATIVE LAW JUDGE DECISION v.

HENRY BECKMAN ENTERPRISES, License No: 304063 RESPONDENTS.

HEARING: August 6, 2018 APPEARANCES: Bonny Allan, Esq., Staff Atty., ROC, John Tellier, Esq., Asst. Atty.General, Counsel for the ROC, David Henry, Respondent, Aimee Hauf, Respondent Witness. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson _____________________________________________________________________ FINDINGS OF FACT

1. On June 29, 2016, the Registrar1 issued License Number R39R.304063 to HBE. 2 HBE’s filing with the Registrar identified itself as a general partnership.3 2. David Jonathan Henry (“Henry”) is named as a partner and Qualifying Party on Respondent Henry Beckman Enterprises’ License No.: R39R.304063. (Hereinafter, “HBE”).4 On March 27, 2015, the Registrar issued License Number CR39.296644 to AC in AZ, LLC, and an Arizona Limited Liability Company d/b/a: Ballard Home Services (“AC in AZ”).5

Administrative Judicial Notice is taken of the entirety of the Registrar’s Agency file in this matter. See, Exhibit 1 and 3 in the Registrar’s Disclosure Statement. The Registrar’s Exhibit 1 through and including Exhibit 14 were offered into evidence at hearing and were admitted without objection. Ibid. Ibid. See, Exhibit 4 and 5 to the Registrar’s Disclosure Statement.

Office of Administrative Hearings 1740 West Adams Street, Lower Level Phoenix, Arizona 85007 (602) 542-9826 RECEIVED 8.21.2018 ROC LEGAL

3. Mr. Henry is listed as a manager, owner, and qualifying party on AC in AZ license.6 Thus, Mr. Henry is a person named on AC in AZ license as contemplated by A.R.S. § 32-1101(A)(6). 4. Mr. Henry was a Member and the Qualifying Party on AC in AZ’s license from its inception through March 31, 2016. On March 31, 2018, Mr. Henry disassociated as the Qualifying Party.7 Mr. Henry remains listed as manager and owner on the AZ in AZ license.8 5. On June 6, 2018, The Arizona Registrar of Contractors (Registrar), issued a Citation and Complaint against Henry Beckman Enterprises (“HBE”). An Answer to the Citation and Complaint were timely filed and this matter was referred to the Office of Administrative Hearings, an independent agency, for hearing to determine the merits of the allegations contained in the Citation and Complaint. Hearing was conducted on August 6, 2018 at the Office of Administrative Hearings. 6. On or about June 22, 2017, the Registrar revoked AC in AZ’s license pursuant to a Final Administrative Order in Case No.: 2017-1762.9 The sum and substance of Case No.: 2017-1762 was that on or about March 31, 2017, Kay Woods, under a contract with AC in AZ dated June 15, 2015, filed a Complaint that resulted in a Citation versus AC n AZ for poor workmanship and failure to comply with a Registrar’s Directive. The Complaint and Citation in case number 2017-1762 resulted in the revocation of AC in AZ’s contractors license by a Final Administrative Order dated June 22, 2017. Moreover, the revocation order also ordered AC in AZ to pay a $500.00 civil penalty, which penalty AC in AZ paid on June 22, 2017. Thereafter, on August 17, 2017, Ms. Woods filed a claim with the Arizona Recovery Fund seeking damages in the amount of $10,391.00.10 7. On or about July 9, 2017, the Registrar revoked AZ in AZ’s licenses pursuant to a Final Administrative Order in Case No.: 2017-1549.11 The sum and

Ibid. 7 Registrar’s Disclosure Statement, Exhibit 6. Ibid. See Registrar’s Disclosure Statement Exhibit 9, 10 and 11. Registrar’s Disclosure Statement Exhibit 11, supra. Registrar’s Disclosure Statement Exhibits 13 and 14. RECEIVED 8.21.2018 ROC LEGAL

substance of Case No. 2017-1549 was that on or about March 20, 2017, Complainant Michael Heinle, under a contract with AC in AZ dated August 20, 2017, filed a Complaint against AC in AZ for poor workmanship and failure to comply with a Registrar’s Directive. The Complaint resulted in the revocation of AC in AZ’s contractors license by a Final Administrative Order dated June 8, 2017.12 Moreover, the revocation order also ordered AC in AZ to pay a $250.00 civil penalty,13 which penalty AC in AZ paid on June 8, 2017. 8. Bonny Allen, Esq., Staff Attorney for the Registrar, testified at hearing that as of the date of hearing in this matter, Mr. Henry remained of record with the Registrar as a manager and owner of AC in AZ.14 9. The June 6, 2018 Citation alleges two possible violations: a. 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: .... (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. b. A.R.S. § 32-1161(C) After revocation of a license upon any of the grounds set forth in section 32-1154, the license shall not be renewed or reissued for one year after final determination of revocation and then only on proper showing that all loss caused by the act or omission for which the license was revoked has been fully satisfied.

10. Testifying for the Respondent was David Henry. Mr. Henry stated that he severed his relationship with AC in AZ long ago and filed notice of that fact with the Registrar with his Notice of Disassociation filed with the Registrar on March 31, 2018. Mr. Henry testified that he believed that his Notice of Disassociation took him completely off of the records of the Registrar for AC in AZ’s license. He admitted at the hearing that now understands that his disassociation notice only notified the Registrar that he was disassociating only as

12 Ibid. Id. See footnote 5, supra. RECEIVED 8.21.2018 ROC LEGAL

the Qualifying Party for AC in AZ and indicated he misunderstood that he was still formally listed with the Registrar as manager and owner of AC in AZ.

CONCLUSIONS OF LAW

1. The Registrar has jurisdiction regarding the Citation and Complaint pursuant to A.R.S. § 32-1101 et seq.15 2. By a preponderance of the evidence Mr. Henry is named both on the license AC in AZ and on the license of HBE. 3. By a preponderance of the evidence, on or about June 22, 2017, the Registrar revoked AC in AZ’s license pursuant to a Final Administrative Order in Case No.: 2017-1762. AC and on or about July 9, 2017, the Registrar revoked AZ in AZ’s licenses pursuant to a Final Administrative Order in Case No.: 2017-1549. 4. Mr. Henry was named on the AC in AZ license at the time of the contracts in the cases 2017-1762 and 2017-1549. 5. AC in AZ contractors license, by a preponderance of the evidence, was under suspension or revocation for act and omission that occurred while Mr. Henry was named on the license. 6. Therefore, The Registrar has met its burden and has shown, by a preponderance of the evidence, that HBE has violated A.R.S. § 32-1154(A). 7. There has been no showing by HBE or otherwise that all loss caused by the act or omission for which the AC in AZ license was revoked has been fully satisfied. To the contrary it has been proven, by a preponderance of the evidence, that in case number 2017-1762, an Arizona Residential Contractors Recovery Fund [the “Fund”] payout was made to the victim/claimant Ms. Kay Woods as a direct result of the act or omissions AC in AZ the amount of $10,391.00.16 No evidence was provided that the Fund has been repaid the $10,391.00 payout occasioned by AC in AZ conduct. Thus, in accordance with

15 § 32-1101 et seq authorizes the Registrar to impose disciplinary sanctions against licensees for violations of Title 32 Chapter 10 of the Arizona Revised Statutes See, Registrar’s Disclosure Statement Exhibit 11, supra. RECEIVED 8.21.2018 ROC LEGAL

A.R.S. § 32-1161(C), HBE is not eligible to apply for or hold an Arizona contractors license.17 RECOMMENDED ORDER

Based upon the foregoing, IT IS RECOMMENDED that Henry Beckman Enterprises, License No: 304063 be revoked.

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, August 16, 2018.

/s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to: Jeffrey Fleetham, Director Registrar of Contractors

17 A.R.S. § 32-1161(C): After revocation of a license upon any of the grounds set forth in section 32-1154, the license shall not be renewed or reissued for one year after final determination of revocation and then only on proper showing that all loss caused by the act or omission for which the license was revoked has been fully satisfied. [Note: If and when Respondent is able to make a proper showing of its compliance with A.R.S. § 32-1161(C), it may be eligible to apply for a contractors license.]