FINACT2018A-3716-CHC-ROC-FinalAgencyAction-6841.pdf

2018A-3716-ROC · Registrar of Contractors · 2020-03-10

REGISTRAR OF CONTRACTORS OF THE STATE OF ARIZONA

Emil and Elizabeth Brinza, Case No. 2018-3716

COMPLAINANTS, Docket No. 2018A-3716-CHC-ROC v. Paul Wells FINAL ADMINISTRATIVE DECISION DBA: Wells Asphalt Paving, AND ORDER License No. ROC 291078, 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 of each finding of fact or conclusion of law. MODIFICATION AND WRITTEN JUSTIFICATION 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 modifies it as set forth below. The Registrar cited Respondent with violations of A.R.S. § 32-1154(A)(3), namely A.A.C. R4-9-108, and A.R.S. § 32-1154(A)(22). ALJ Dec. pg. 1, ¶ 3. However, in addition to these violations, the administrative law judge found that Respondent violated A.R.S. § 32- 1154(A)(12), namely A.R.S. § 32-1158(B). ALJ Dec. pg. 8, ¶ 8. Because the Registrar did not allege a violation of A.R.S. § 32-1154(A)(12), and the Notice of Hearing did not list such a violation, Respondent cannot be disciplined for this violation.

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Additionally, the Administrative Law Judge incorrectly notes that Respondent “has never been disciplined,” and finds that the “lack of prior discipline taken is considered a mitigating factor in imposing discipline.” ALJ Dec. Pg. 6, ¶ 32. The Registrar’s public contractor search tool shows that Respondent’s license has two prior cases that resulted in discipline. The Registrar’s records indicate Respondent was suspended for one day on January 30, 2018, Case No. 2017-4686, and for three days from August 7, 2018, to August 9, 2018. Therefore, the Administrative Law Judge’s finding that Respondent did not have any prior discipline against its license is incorrect, and cannot stand as a mitigating factor. Rather, under A.A.C. R4-9-117, the Registrar may consider Respondent’s two prior suspensions as an aggravating factor. CONCLUSION AND ORDER The Registrar modifies the Administrative Law Judge Decision as follows: • On page 6 ¶ 32, delete “Mr. Well’s license has never been disciplined. The lack of prior discipline taken is considered a mitigating factor in imposing discipline”, and replace with “Mr. Wells’ license has been disciplined in two prior cases. The prior license discipline is considered an aggravating factor.” • Delete page 8 ¶ 8. • On page 8 under Recommended Order, replace the first paragraph with: “Based on the foregoing, Paul Wells DBA: Wells Asphalt Paving, License No. ROC 291078, is suspended for ten days.” The Registrar accepts the remainder of the Administrative Law Judge Decision, which becomes effective on April 15, 2020. IT IS FURTHER ORDERED that Respondent pay a civil penalty in the amount of $250.00, payable to the Registrar on or before 30 days from the effective date of this Order. Payment may be hand-delivered to the Registrar’s physical address or mailed to:

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19 Registrar of Contractors P.O. Box 6748 Phoenix, Arizona 85505-6748 FINAL NOTE

On page 2, line 11 replace “September 24, 2018” with “September 7, 2018”. On page 2,

line 12 replace “September 24, 2018” with “September 7, 2018”.

Dated March 6, 2020.

By: /s/ Joseph Citelli Joseph Citelli Chief Counsel Chief of Legal Department and Recovery Fund Copy mailed via USPS First Class mail March 6, 2020 to: Respondent Paul Wells DBA: Wells Asphalt Paving 8340 N Thornydale Rd Ste 110-182 Tucson, AZ 85741 Respondent’s Attorney Michael J. Vingelli 2 E. Congress St. Tucson, AZ 85701 Complainants Emil and Elizabeth Brinza 357 W Latigo Ln Star Valley, AZ 85541 Complainants’ Attorney Hunter T Lewis Esq. 970 South Main Street Snowflake, AZ 85937 Copy sent electronically this same date to: Office of Administrative Hearings Velva Moses-Thompson, Administrative Law Judge Respondent at email address on record with the Registrar Respondent’s Attorney at email address of record with Registrar Complainant at email address on record with the Registrar Complainants’ Attorney at email address of record with Registrar Case No. 2018-3716 / SA

of 3 REGISTRAR OF CONTRACTORS 1700 W. Washington St.– Ste. 105 – Phoenix, AZ 85007-2812 Telephone (602)542-1525 Toll Free (877)692-9762 Lg131 8/19