ALJDEC decisions subject to certification as final

2018A-995-LDA-ROC · Registrar of Contractors · 2018-05-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

IN THE MATTER OF THE APPLICATION OF:

Leonel's Construction LLC,

PENDING LICENSE NO: 264986

No. 2018A-995-LDA-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: May 7, 2018, 1:00 P.M.

APPEARANCES: Arizona Registrar of Contractors was represented by Assistant Attorney General Thomas Raine; no appearance was made on behalf of Applicant

ADMINISTRATIVE LAW JUDGE: Roger A. Geddes

_____________________________________________________________________

FINDINGS OF FACT

Background and Procedure

1. Applicant is the holder of license KB2.264986 issued by the Registrar.

2. On January 26, 2018, Applicant submitted an Application for Exemption from Qualifying Party Requirements. (Registrar’s Exhibit 2).

3. On February 23, 2018, the Registrar issued a Notice of Qualifying Party Exemption Denial in which the Registrar stated the ground for the denial was Applicant’s failure to show that the subject license had been in effect during the past five years as required by A.R.S. § 32-1125(C). (Registrar’s Exhibit 1).

4. The Registrar issued a Notice of Hearing, dated March 15, 2018, that set a hearing for May 7, 2018, at 1:00 P.M. The Registrar mailed a copy of the Notice of Hearing to Respondent on or about March 15, 2018, at its address of record.

5. 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.”

6. The Notice of Hearing further advised of the procedure for requesting a continuance of the hearing.

7. A hearing was held on May 7, 2018, at 1:00 P.M. The Registrar presented the testimony of Brian Kirby. The Tribunal received and admitted Registrar’s exhibit numbers 1 - 7.

8. Although the commencement of the hearing was delayed approximately 20 minutes, Applicant did not appear at any time during the hearing through an authorized officer, employee, attorney, or any other person. Consequently, Applicant did not present any evidence to defend its license. Respondent further did not request to appear telephonically and did not request that the hearing be continued.

9. The Registrar presented evidence that Applicant’s license was inactive from June 30, 2014, to March 28, 2016, and was suspended due to lack of a bond from May 14, 2014, to June 30, 2014. (Registrar’s Exhibit 3).

CONCLUSIONS OF LAW

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

2. The copy of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Applicant is deemed to have received notice of hearing. A.R.S. §§ 41-1092.4 and 41-1092.05(D).

3. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by preponderance of the evidence. See Arizona Administrative Code Rule 2-19-119.

4. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” MORRIS K. UDALL, ARIZONA LAW OF EVIDENCE § 5 (1960). A preponderance of the evidence is “[t]he 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 at p. 1220 (8th ed. 1999).

5. In order to qualify for an exemption from a qualifying party, A.R.S. § 32-1125(C) provides that:

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.

2. A transfer of ownership of fifty per cent or more of the stock, if applicable, or beneficial interest, in the licensee has not occurred.

3. No more than five valid complaints which have not been resolved by the licensee, as determined by the registrar, have been filed against the licensee.

6. During the past five years, the evidence reflects that Applicant’s license was suspended due to lack of a bond from May 14, 2014, to June 30, 2014, and inactive from June 30, 2014, to March 28, 2016. Therefore, the subject license has not been in effect during the past five years as required under A.R.S. § 32-1125(C) to qualify for an exemption from a qualifying party.

7. Accordingly, the Registrar did not err in denying Applicant’s Application for Exemption from Qualifying Party Requirements.

RECOMMENDED ORDER

In view of the foregoing, it is recommended that on the effective date of the final order in this matter, that Applicant’s Application for Exemption from Qualifying Party Requirements 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 will be five days from the date of that certification.

Done this day, May 29, 2018.

/s/ Roger Geddes

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors