ALJDEC decisions subject to certification as final

2019A-00982-ROC · Registrar of Contractors · 2019-03-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: March 11, 2019 APPEARANCES: Assistant Attorney General Thomas Raine appeared on behalf of the Arizona Registrar of Contractors. David A. Rubin, Esq. appeared on behalf of Respondent Handy Dan’s, Inc. ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson _____________________________________________________________________ FINDINGS OF FACT 1. On March 1, 2019, the Registrar of Contractors (“Registrar”) issued an Order of Summary Suspension & Case Consolidation Notice of Promptly Instituted Proceedings (“Order”) setting the above-captioned matter for hearing at 1:00 p.m. on March 11, 2019, at the Office of Administrative Hearings. 2. In the Order, the Registrar presented its determination that the public welfare imperatively required emergency action and it summarily suspended Respondent Handy Dan’s (“Handy Dan”) license. Citing Ariz. Rev. Stat. § 41- 1092.11(B). The Order provided, in relevant part, as follows: The Registrar was provided notice and a police report that, while in the course of contracting, Mr. Huntington is alleged to have committed several crimes. According to the Police Report, M29884 with the City of Scottsdale, Arizona, Mr. Huntington [sic] is charged with the following crimes:

• Violation of ARS 13-l 304A3, Kidnap-Death/Injury/Sex/ Aid felony • Violation of ARS 13-1204A2, Aggravated Assault w/deadly weapon • Violation of ARS 13-1201Al, Threat-Intimidate witness with injury-damage to prope1iy • Violation of ARS 13-1201A, Endangerment • Violation of ARS 13-1802Al, Theft • Violation of ARS 13-241 lA, Impersonating a Police Officer • See copy of Police Report, attached and incorporated as Exhibit 1 to Order of Summary Suspension and Notice of Promptly Instituted P.

3. On March 4, 2019, the Registrar also issued a Supplemental Notice to clarify and detail the specific charges against Handy Dan. 4. The Supplemental Notice provided a Statement of Facts and a Formal Statement of Alleged Violations in which Registrar alleged that Handy Dan had violated Ariz. Rev. Stat. sections 32-1154(A)(3), specifically A.A.C. R4-9-108; Ariz. Rev. Stat. sections 32-1154(A)(12); and Ariz. Rev. Stat. sections 32-1122(C). 5. The Registrar is requesting that Handy Dan’s license be revoked, or, in the alternative, that the summary suspension be upheld until the conclusion of criminal proceedings pending against Mr. Huntington. 6. A hearing was held on March 11, 2019. 7. At hearing, the Registrar presented the testimony of Mike Crow, Steve Fultz, and Bonny Allan, and submitted exhibits through 5. Handy Dan presented the testimony of Daniel James Huntington, Justin Boring, Jolene Boring, Terry Huntington, Tom Schmidt, Robert McCoi, and Bob Nelson, and submitted exhibit A. 8. Handy Dan holds license number 277852 issued by Registrar. 9. Daniel James Huntington is the owner and qualifying party of Handy Dan. 10. Mr. Huntington hired Guillermo Gutierrez, for the second time, to perform construction work. Mr. Huntington hired Mr. Gutierrez to build a wall on his property located in Scottsdale, Arizona (“home”). Mr. Gutierrez charged Mr. Huntington $4,700 for the work. 11. Justin and Jolene Boring were renting the home. Justin is an employee of Handy Dan. 12. Mr. Huntington paid Mr. Gutierrez a $1,350 deposit to start the work. 13. Mr. Gutierrez built the wall. However, the wall did not pass inspection with the City of Scottsdale. 14. On February 13, 2019, Mr. Huntington called Mr. Gutierrez and asked him to come to the home. 15. When Mr. Gutierrez arrived, Mr. Huntington explained to Mr. Gutierrez that the wall did not pass the City of Scottsdale’s inspection. 16. Mr. Gutierrez told Mr. Huntington that he would need additional money to tear down and rebuild the wall. 17. Mr. Huntington demanded that Mr. Gutierrez return his $1,350 deposit. 18. Mr. Huntington showed Mr. Gutierrez his Sheriff’s posse badge, and told Mr. Gutierrez that he was a sheriff deputy. Mr. Gutierrez threatened to have Mr. Gutierrez deported. 19. Mr. Huntington asked Mr. Gutierrez whether he was in the United States illegally. 20. Mr. Huntington took the keys to Mr. Gutierrez’s Dodge truck, because he believed that Mr. Gutierrez had $500 worth of tools in the truck. 21. Mr. Huntington planned to keep the keys until Mr. Gutierrez paid him back his deposit. 22. On February 13, 2019, Officer S. Dyer, Officer D. Kalmeiter, and Officer M. Miller were dispatched to Mr. Huntington’s home regarding a disturbance. See Exhibit 1. Mr. Gutierrez told Officer Dyer that Mr. Huntington pulled a black handgun out of his front pocket and demanded his $1,350 deposit back because the wall did not pass inspection. See id at pg. 7. 23. Mr. Gutierrez explained to Officer Dyer that the incident occurred in front of the home and Mr. Gutierrez was standing next to Mr. Huntington with his shoulder next to Mr. Gutierrez’s chest. See Exhibit 1, pg. 7. Mr. Gutierrez explained that Mr. Huntington “pulled the slide of the gun back chambering a round. He then pulled the slide back slightly and walked over to sow Mr. Gutierrez that it was loaded.” Mr. Gutierrez explained to Officer Dyer that Mr. Huntington threatened to shoot him if he left without paying Mr. Huntington. Mr. Gutierrez told Officer Dyer that he called his wife and told her what occurred. See id. 24. Officer Dyer interviewed Mary Gutierrez when he arrived to the home in response to the report of a disturbance. See Exhibit 1, pg. 7. The notes from Officer Dyer’s interview provided, in relevant part, as follows:[1] Mary said she got on the phone with Mr. Huntington and she said "Good afternoon, what's going on?" Mr. Huntington responded to her by saying "I want my 1350 and your husband's life depends on it.” said "Good afternoon, what's going on?" Mr. Huntington responded to her by saying "I want my 1350 and your husband's life depends on it.” Mary said she told him she was in Chandler and it was a 30 minute drive but she was driving there immediately.

25. Mr. Gutierrez explained to Officer Dyer that he told Mr. Huntington that he had $400, and that when his wife arrived, he would give him the remainder of the money. See Exhibit 1, pg. 7. 26. On February 13, 2019, Officer Kamleiter interviewed Mr. Huntington at his home regarding the dispute. See Exhibit 1, pg. 13. Officer Kamleiter’s notes regarding his interview of Mr. Huntington provided, “While speaking with Huntington he began to sweat profusely and asked for a drink of water.” See Exhibit 1, pg. 14. I asked Huntington if he needed medical attention and he said that he was nervous. I was able to obtain a bottle of water for Huntington and when he was able, we continued speaking.” See id. 27. Mr. Huntington told Officer Kamleiter that he became angry with Mr. Gutierrez and asked him about his immigration status. See Exhibit 1, pg. 20. Officer Kamleiter asked Mr. Huntington why he would ask Mr. Gutierrez about his immigration status. Mr. Huntington replied that that he wanted to know if Mr. Gutierrez was here legally. See id. 28. Officer Kamleiter asked Mr. Huntington how he retrieved Mr. Gutierrez’s keys. See Exhibit 1, pg. 20. Mr. Huntington explained that he saw Mr. Gutierrez’s keys on the bed of his truck and took them so that Mr. Gutierrez would not leave. See id. 29. Mr. Huntington denied displaying a firearm to Mr. Gutierrez. See Exhibit 1, pg. 20. Mr. Huntington denied that he threatened Mr. Gutierrez. Mr. Huntington denied that he had identified himself as a Sheriff’s Deputy. See id. 30. When Officer M. Miller arrived at the home in response to the report of a disturbance, he walked to Officer Kamleiter and heard his conversation with Mr. Huntington regarding how Mr. Huntington obtained Mr. Gutierrez’s truck keys. See Exhibit 1, pgs 12-14. Officer Miller’s report provided, in relevant part, as follows:[2] Officer Kamleiter was asking Mr. Huntington how he got the keys to Mr. Gutierrez’s truck. Mr. Huntington had long pauses before answering Officer Kamleiter’s questions. He change his story as to where the keys were. He denied every displaying a gun and denied telling Mary that her husband’s life depended on her bringing the money. Page 6 of miller’s report.

31. Officer Miller interviewed Justin Boring when he arrived at Mr. Huntington’s home. See Exhibit 1, pg. 13. Justin reported that Mr. Huntington became upset when Mr. Gutierrez demanded more money to rebuild the wall. Justin explained that the discussion was heated. Justin told Officer Miller that Mr. Huntington demanded his money back and took Mr. Gutierrez’s truck keys. Justin told Officer Miller that Mr. Huntington told Mr. Gutierrez that he was not getting the keys back until he got his money. Justin explained that afterwards, Mr. Gutierrez called “somebody.” See id. 32. Officer Miller asked Justin for the location of the keys. See Exhibit 1, pg. 13. Justin walked Officer Miller to one of the trucks parked in the yard and retrieved a set of keys. Justin reported that he did not know how the keys got there. When Officer Miller asked Justin about Mr. Huntington pulling out a gun, Justin stated that he never saw Mr. Huntington pull out a gun. See id. 33. On February 20, 2019, Officer S. Hawkinson of the SPPD contacted Mr. Gutierrez to ask follow up questions. See Exhibit 1, pg. 21. Officer Hawkins asked Mr. Gutierrez how Mr. Huntington obtained his keys. Mr. Gutierrez responded that he already had his keys out in his right hand during the argument, and that Mr. Huntington reached over and grabbed them with his own right hand. Mr. Gutierrez explained that Mr. Huntington grabbed his keys before he pulled out his gun. See id. 34. Mr. Huntington was arrested and transported to Scottsdale City Jail. See Exhibit 1. Mr. Huntington was booked and held in custody on one count each of Kidnapping, Aggravated Assault, Threatening and Intimidating, Impersonating a Police Officer, Endangerment, and Theft. See id. 35. At hearing, Mr. Huntington denied that he pulled a gun on Mr. Gutierrez. Mr. Huntington explained that on the day of the incident he had a black glock, module 27, semi- automatic. Mr. Huntington stated that he told law enforcement that gun had magazine rounds in it. 36. Mr. Huntington denied that he told Mr. Gutierrez that he was a Sheriff Deputy, or otherwise represented himself to be a police officer. Mr. Huntington denied that he threatened to have Mr. Gutierrez deported. 37. Mr. Huntington admitted that he did not know whether Mr. Gutierrez was a licensed contractor. Mr. Huntington asked Mr. Gutierrez whether he was a licensed contractor during the February 13, 2019 incident. Mr. Huntington explained that he has been a licensed contractor “on and off” since 2003. 38. Mr. Huntington admitted that he took Mr. Gutierrez’s keys. Mr. Huntington explained that he took Mr. Gutierrez’s within Mr. Gutierrez’s view. 39. Mr. Huntington asserted that Mr. Gutierrez never asked for his keys. 40. Mr. Huntington asserted that he never told Mr. Gutierrez that he could not leave. Mr. Huntington asserted that Mr. Gutierrez never attempted to walk away. 41. Mr. Huntington testified to the effect that he did not know Mr. Gutierrez’s thoughts about why he took the keys. Mr. Huntington explained that he took Mr. Gutierrez’s keys because he knew that Mr. Gutierrez had about $500 worth of tools in his truck. Mr. Huntington stated that he was holding Mr. Gutierrez’s keys as collateral. 42. Mr. Huntington testified that after he asked Mr. Gutierrez for his deposit back, Mr. Gutierrez showed him his wallet and stated, “I have no money.” 43. Mr. Huntington alleged that he removed his wallet and stated, “I have no money.” Mr. Huntington asserted that Mr. Gutierrez could observe his Sheriff’s posse card when he opened his wallet. 44. Mr. Huntington admitted that he asked Mr. Gutierrez whether he was in the country legally. Mr. Huntington explained that Mr. Gutierrez called someone and began speaking in what he believed to be the Spanish language. Mr. Huntington admitted that he spoke to Mr. Gutierrez’s wife. However, Mr. Huntington denied telling her that she needed to bring his money because her husband’s life depend on it.

Mr. Huntington stated that he asked Mrs. Gutierrez if she was coming to bring the money and she responded, “Yes.” 45. Mr. Huntington explained that he was sitting in his van when the police arrived. 46. Mr. Huntington asserted that Mr. Gutierrez knew that he had a gun because he had a gun on his previous job in the center console of his van where he keeps his business cards. Mr. Huntington stated that he is a licensed federal firearms dealer and that on a previous job with Mr. Gutierrez, he opened the center console of his van and gave the business card to Mr. Gutierrez. 47. Mr. Huntington explained that he was dehydrated at the time of the incident and suffers from dizzy spells. Mr. Huntington explained that he has been in chronic pain since February and underwent a procedure where plates were inserted in his neck. He explained that his pain subsided significantly after the procedure but it is not completely gone. 48. At hearing, Justin Boring explained that when he arrived at the home, he observed Mr. Huntington sitting in his van and there were keys for a Dodge truck on the center console. Mr. Boring noticed Mr. Gutierrez standing by his truck. Mr. Boring heard Mr. Gutierrez talking to someone on the phone. Mr. Gutierrez appeared to Mr. Boring be about 20 feet away from Mr. Huntington. 49. Mr. Boring asserted that he did not have a discussion with Mr. Huntington regarding the reason that he had Mr. Gutierrez’s keys. Mr. Boring’s understanding was that Mr. Gutierrez told Mr. Huntington that he would have to pay him an additional $1,500 to rebuild the wall. 50. On cross examination, Mr. Boring agreed that it would be inappropriate for Mr. Huntington to take Mr. Gutierrez’s keys until Mr. Gutierrez paid Mr. Huntington back his deposit. Mr. Boring asserted that he did not see Mr. Huntington threaten anyone and did not see him pull a gun on Mr. Gutierrez. Mr. Boring told law enforcement that he never saw Mr. Huntington pull out a gun. 51. Mr. Boring testified that he has never heard Mr. Huntington swear at or threaten a customer. Mr. Boring stated that Mr. Huntington has never tried to cheat him when has made a mistake on a job. Mr. Boring stated that Mr. Huntington was not angry when he told him about Mr. Gutierrez’s mistake. Mr. Boring stated that Mr. Huntington seemed disappointed. 52. Mr. Boring stated Mr. Huntington does not have a reputation for being aggressive or threatening. Mr. Boring did not know about any violence that occurred in connection with the construction matters involving the Shields and the Millers. 53. I do not find Mr. Boring’s testimony to be credible. 54. On or about January 25, 2019, the Registrar received a complaint from Robert Miller alleging that Mr. Huntington exhibited threatening and intimidating behavior toward their realtor in connection with a residential construction project. See Exhibit 5. Mr. Miller alleged that when he did not pay Mr. Huntington full payment for the work, Mr. Huntington told Mr. Miller, “You have screwed with the wrong person”. Mr. Miller reported that Mr. Huntington told him that he would file a lien and interfere with the sale of the home. 55. Mr. Miller sent a police report regarding the incident between Mr. Huntington and Mr. Gutierrez to the Registrar. Mr. Miller relayed that he feared that such an incident would occur based upon his association with Mr. Huntington. 56. On or about January 18, 2019. the Registrar received a complaint from James Lee Shields. The complaint contained an allegation that Mr. Huntington belittled Mrs. Shields in connection with a residential remodel project. Although the Mr. Shields originally reported that they close the complaint because of an inability to schedule contractors, Mr. Shield later reported to the Registrar that they closed the complaint because they were afraid of Mr. Huntington. 57. Mr. Shields reported to the Registrar he and his wife did not want to testify because they feared the consequences. Mr. Shields also alleged that Mr. Huntington belittled his wife during the construction project. Mr. Huntington told Mr. Shield that he could nor pour concrete due to the low temperature. At hearing, Mr. Fultz explained at hearing that 40 degrees is not too cold to pour concrete. Mr. Miller continued to report to the Registrar that he wanted to get away from Mr. Huntington. Mr. Miller reported to the Registrar that Mr. Huntington was vulgar but provided no specific examples. 58. Mr. Huntington asserted that he did not threaten the Shields nor act in any intimidating manner with the Shields. Mr. Huntington explained that Mrs. Shields did not like the height of the shower head that he installed. Mr. Huntington explained that while discussing the matter with Ms. Shields, she became agitated, irritable, called him an “asshole”, and hung up the phone. 59. Mr. Huntington denied that he threatened the Millers or acted in any intimidating manner with regard to a construction contract. Instead, Mr. Huntington asserted that Mr. Miller through an envelope at him with a payment when he met him at a bank. Mr. Huntington alleged that Mr. Miller told him, “I am going to destroy you and your little company.” Mr. Huntington explained that he was ready and willing to pour concrete for the Millers. Mr. Huntington explained that his worker was not willing to wait all day to watch the concrete dry. Instead, he explained that his worker would come the next day when the temperature was warmer so that he would only have to spend a few hours to make sure that the concrete dried appropriately. 60. I do not find Mr. Huntington’s testimony to be credible. 61. Bonny Allan is an Assistant Chief Counsel at the Registrar. Ms. Allan reviewed the investigation of Handy Dan. Ms. Allan drafted the summary suspension order and the supplemental notice. Ms. Allan was involved in the Registrar’s internal discussions regarding the summary suspension of Handy Dan’s license. 62. Ms. Allan explained that the Registrar determined that it was necessary to summarily suspended Handy Dan’s license because of the escalation of Mr. Huntington’s inappropriate responses to financial matters in connection with his business. Ms. Allan explained that the Registrar has a duty to protect the public. Ms. Allan believed that all of the charges were disturbing and established a lack of good character. Ms. Allan believed because of the three instances occurring in the previous 4 to 6 months, something may occurred in Mr. Huntington’s life that triggered a propensity to deal with financial matters in an unprofessional manner. 63. Terry Huntington is Mr. Huntington’s wife. Mrs. Huntington stated that she has never seen Mr. Huntington display a weapon outside of the home. Mr. Huntington testified that Mr. Huntington only uses foul language when he hurts himself or if he is making a “point” with his friends. Mrs. Huntington testified that Mr. Huntington has never intimidated anyone and that she has never heard Mr. Huntington threaten a customer. Mrs. Huntington asserted that when things do not go Mr. Huntington’s way, he tries to keep calm. 64. Mr. Huntington testified that she cannot imagine Mr. Huntington pulling a gun on anyone. Mrs. Huntington has never seen Mr. Huntington display his posse badge. 65. Tom Schmidt has known Mr. Huntington for almost 20 years. Mr. Schmidt testified that he has been in business for years and has never known anyone more professional than Mr. Huntington. Mr. Schmidt testified that he has never imagined Mr. Huntington pulling a gun on anyone. Mr. Schmidt testified that Mr. Huntington is calm and cool. Mr. Schmidt testified that he has never seen Mr. Huntington get angry with anyone. 66. Robert McCoi has known Mr. Huntington for 13 years. Robert dated Mr. Huntington’s mother in law. Mr. McCoi testified that Mr. Huntington is nice and cordial and never loses his cool. Mr. Huntington invited him to Christmas dinner with his family. 67. Bob Nelson has known Mr. Huntington since 2015. Mr. Nelson explained that he hired Mr. Huntington to perform an extensive remodeling of his home. Mr. Nelson explained that Mr. Huntington met his expectations and there was no not screaming and yelling in their relationship. Mr. Nelson explained that he interviewed several people before hiring Mr. Huntington. Mr. Nelson testified that he never met anyone who did not like Mr. Huntington and that all of Mr. Huntington’s subcontractors liked Mr. Huntington. Mr. Nelson explained that $1,300 is pocket change to Mr. Huntington. Mr. Nelson believed that Mr. Huntington would only file a lien on someone’s home for the principle. Mr. Nelson’s home remodel was in excess of $80,000. 68. Jolene Boring is Justin Boring’s wife and Mr. Huntington’s tenant. Mrs. Boring has known Mr. Huntington for four years. Mrs. Boring rents Mr. Huntington’s home at 76th Place. Mrs. Boring testified that she has never heard Mr. Huntington threaten anyone or use foul language. Mrs. Huntington testified that she could not imagine Mr. Huntington pointing a gun at anyone. Mrs. Huntington stated that her dogs never barked during the alleged incident nor when Mr. Gutierrez constructed the wall. CONCLUSIONS OF LAW 1. “At a hearing on an agency action to suspend, revoke, terminate or modify on its own initiative material conditions of a license or permit, the agency has the burden of persuasion.” Ariz. Rev. Stat. § 41-1092.07(G)(2). 2. Unless otherwise provided by law, a party asserting a claim, right, or entitlement bears the burden of proof; a party asserting an affirmative defense has the burden of establishing the affirmative defense. 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. Ariz. Rev. Stat. section 32-1122(C) provides that: To obtain, renew, or maintain a license under this chapter, each person who is named on a license shall be of good character and reputation.

5. 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: ***** (3) Violation of any rule adopted by the registrar. Specifically, Rule 4-9-108, titled "Workmanship Standards," in the Arizona Administrative Code. ***** (12) A violation of A.R.S. § 32-1154(A)(12) Failure in any material respect to comply with this chapter.

6. 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."). 6. “Statutes shall be liberally construed to effect their objects and to promote justice.” Ariz. Rev. Stat. § 1-211(B). 7. 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). The preponderance of the evidence shows that Mr. Huntington exhibited an inability to appropriately handle the financial affairs of his construction business in the last six months. The evidence shows that Mr. Huntington became aggressive and even dangerous when he did not receive payment as expected. Mr. Huntington admitted to taking Mr. Gutierrez’s property. Mr. Huntington admitted that he hired Mr. Gutierrez for two construction contracts, even though he did not know whether Mr. Gutierrez was a licensed contractor. 8. The preponderance of the evidence shows that Mr. Huntington has behaved in a dangerous behavior in the last six months with regard to the receipt of monetary payment in connection with his construction business. 69. The preponderance of the evidence shows that Handy Dan violated Ariz. Rev. Stat. sections 32-1154(A)(3), specifically A.A.C. R4-9-108; Ariz. Rev. Stat. sections 32- 1154(A)(12); and Ariz. Rev. Stat. sections 32-1122(C). 9. The Registrar thereby established under A.R.S. § 41-1092.11(B) that the public health, safety or welfare imperatively required that Respondent’s license be summarily suspended. RECOMMENDED ORDER In light of the foregoing, it is ordered affirming the March 1, 2019 order summarily suspending Respondent Handy Dan, Inc.’s License No. ROC 277582. It is further ordered that, on the effective date of the final order in this matter, Respondent’s License No. ROC 277582 shall remain suspended until the conclusion of the pending criminal proceedings against Daniel James Huntington. 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. 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, March 25, 2019.

/s/ Velva Moses-Thompson Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] See id at pg. 5. [2] See id at pg. 14.

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