ALJDEC decisions subject to certification as final

2018A-4134-LDA-ROC · Registrar of Contractors · 2018-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 26, 2018 APPEARANCES: Joanne Cobb for the Applicant; Thomas Raine, Esq. for the Registrar of Contractors ADMINISTRATIVE LAW JUDGE: Thomas Shedden FINDINGS OF FACT 1. On September 7, 2018, the Registrar of Contractors (“ROC”) issued a Notice of Hearing setting the above-captioned matter for hearing on October 26, 2018 at the Office of Administrative Hearing. 2. Respondent Poor Boys General Remodeling, Inc., holds license No. 211347 issued by ROC. 3. On July 10, 2018, Poor Boys submitted to ROC an Application for Exemption from Qualifying Party Requirements. 4. Through a Notice of Qualifying Party Exemption Denial dated August 1, 2018, ROC denied Poor Boys’ request. 5. Poor Boys requested a hearing, which led to this matter being scheduled. 6. Among the requirements for a qualifying party exemption is a showing that the contractor’s license has been “in effect” for the prior five years. Ariz. Rev. Stat. § 32-1125(C)(1). 7. ROC interprets “in effect” to mean that the contractor is able to contract. 8. Poor Boys’ license was suspended for non-renewal from October 1 through October 6, 2015. 9. Poor Boys does not dispute that its license was suspended during this time, but it takes the position that either ROC or the Postal Service lost its renewal application, which it asserts was mailed on September 11, 2015. 10. ROC investigated Poor Boys’ assertion that it (ROC) may have failed to properly process Poor Boys’ renewal application in 2015, but if found no information in its records to support a finding that this was the case. 11. ROC’s records show that Poor Boys’ license was renewed on October 6, 2015, at which time it paid the requisite fees and a Renewal Penalty of $50 for its failure to timely renew the license. 12. In 2015, Poor Boys did not raise with ROC any argument that the suspension was improper or unwarranted. CONCLUSIONS OF LAW 1. Complainant bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(1). 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. 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."). 5. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 6. “A licensee may make written application to the registrar for exemption from a qualifying party. The applicant shall show to the satisfaction of the registrar that during the past five years: 1. The license has been in effect….” Ariz. Rev. Stat. § 32-1125(C). 7. 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: …. 17. Contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.” 8. As pertinent to this matter, Ariz. Rev. Stat. section 32-1151 provides that it is unlawful for any corporation to act in the capacity of a contractor without having a contractor's license in good standing. 9. Poor Boys’ license was not in effect during the time the license was suspended because Poor Boys was not able to contract during that time. Poor Boys has not shown by a preponderance of the evidence that it meets the requirements for a qualifying party exemption under Ariz. Rev. Stat. section 32-1125(C). RECOMMENDED ORDER IT IS RECOMMENDED that Poor Boys General Remodeling, Inc.’s appeal be denied. 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, November 14, 2018. /s/ Thomas Shedden Thomas Shedden Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

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