ALJDEC decisions subject to certification as final

2019A-01000-ROC · Registrar of Contractors · 2019-05-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 25, 2019, at 1:00 p.m. APPEARANCES: Milan Peric (“Mr. Peric”) appeared on behalf of Happy Family Contracting, LLC (“Happy Family Contracting LLC” or “Applicant”); the Arizona Registrar of Contractors (“the Registrar”) was represented by Thomas Raine, Esq. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. Mr. Peric requested an evidentiary hearing on the Registrar’s February 6, 2019 Notice of Change of Ownership Denial under A.R.S. §§ 32- 1122(D) and 32-1154(A)(20).[1] The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing. 2. A hearing was held on April 25, 2019. Mr. Peric testified on Applicant’s behalf. The Registrar presented the testimony of Brian Kirby, Chief of Licensing, and submitted seven exhibits. Hearing Evidence 3. On or about February 4, 2009, Happy Family Contracting LLC filed an Application for Contractor’s License with the Registrar. The personnel listed on the application were Jelena Nmn Peric and Ivan Johny Vucichevich.[2] According to the Registrar’s public website, on February 15, 2009, the Registrar issued License No. ROC 252930 to Happy Family Contracting LLC. 4. On or about January 21, 2019, Mr. Peric on behalf of Happy Family Contracting LLC filed an Ownership/Personnel Change with the Registrar, requesting that he be added as an owner/president and that Jelena Peric be removed from Happy Family Contracting’s license.[3] 5. Mr. Peric testified that his daughter Jelena wanted to get out of the business to devote more time to her family and he wanted to help by taking over her responsibilities. 6. Mr. Kirby testified that when he checked the Registrar’s database, he found that Mr. Peric had been listed on Happy Family Excavating’s License No. ROC 242190 and that that license had been revoked.[4] 7. The Registrar submitted the Application for Contractor’s License that Mr. Peric DBA Happy Family Excavating had filed with the Registrar on or about January 29, 2008, on which Mr. Peric was identified as the owner.[5] According to the Registrar’s public website, on February 9, 2008, the Registrar issued License No. ROC 242190 to Mr. Peric DBA: Happy Family Excavating. 8. The Registrar also submitted the complaint that Patino’s Trucking had filed with the Registrar on or about August 21, 2009, against Happy Family Excavating for failure to pay $10,360.00, which was designated Case No. 10-0780.[6] 9. Mr. Peric failed to attend the hearing in Case No. 10-0780 that was held on March 15, 2010. The Registrar submitted the Administrative Law Judge’s March 15, 2010 decision finding that Patino’s Trucking had established cause to revoke Mr. Peric DBA: Happy Family Excavating’s License No. ROC 242190 under former A.R.S. § 32-1154(A)(11)[7] by failing to pay Patino’s Trucking $11,482.33. The Registrar also submitted its final order accepting the Administrative Law Judge’s decision. The Registrar’s final order revoked Mr. Peric DBA: Happy Family Excavating’s License No. ROC 242190 unless he provided written proof that he had paid Patino’s Trucking $11,482.33 before the effective date of the final order, May 25, 2010.[8] 10. Mr. Kirby testified that the Registrar never received written proof from Mr. Peric DBA: Happy Family Excavating that he had paid Patino’s Trucking $11,482.33 and that, therefore, the Registrar revoked Mr. Peric’s License No. ROC 242190. 11. Mr. Kirby explained that the Registrar also would accept evidence of a personal bankruptcy filed by Mr. Peric after 2010 discharging the debt to Patino’s Trucking or written evidence from Patino’s Trucking that Mr. Peric had satisfied the debt to comply with the final order in Case No. 10-0780. Unless and until Mr. Peric provided such evidence, however, A.R.S. § 32-1122(C) prohibited the Registrar from adding Mr. Peric to Happy Family Contracting’s license. 12. Mr. Peric testified that his oral contract with Patino’s Trucking was that he would pay Patino’s Trucking when he got paid. Mr. Peric testified that his company did not get paid $156,000.00 from Midland Builders, the general contractor on a job. Mr. Peric testified that Midland Builders subsequently lost its license due to complaints filed by subcontractors and suppliers for non-payment. 13. Mr. Peric testified that he did not attend the hearing in Case No. 10- 0780 because he was sick. Mr. Peric testified that he called the Registrar’s Legal Department to try to appeal the final order, but was told that the judgment would be on his record for the rest of his life. Mr. Peric emigrated from Bosnia and was not familiar with legal requirements for appealing a final order. Mr. Peric testified that, because the economy crashed in 2009, he did not attempt to get Happy Family Excavating’s license back. / / / / CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[9] 2. Applicant bears the burden of proof to establish that it should be allowed to add Mr. Peric’s name to its License No. ROC 252930 under applicable statutes by a preponderance of the evidence.[10] 3. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[11] 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.”[12] 4. A.R.S. 32-1122(C) provides in relevant part as follows: 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. Lack of good character and reputation may be established by showing that a person has . . . committed any act that, if committed or done by any licensed contractor, would be grounds for suspension or revocation of a contractor's license . . . .

A.R.S. § 32-1154(A)(20) includes among the grounds to suspend or revoke a contractor’s license “[h]aving a person named on the license who is named on any other license in this state or in another state which is under suspension or revocation . . . .” 5. Because Mr. Peric was a person named on his sole proprietorship, Happy Family Excavating’s License No. 242190 and because that license was revoked for a violation of former A.R.S. § 32-1154(A)(11), under A.R.S. § 32-1122(C), Mr. Peric has failed to establish good character. The Registrar therefore properly denied Mr. Peric’s request for an Ownership/Personnel Change to be added to Happy Family Contracting LLC’s License No. ROC 252930. RECOMMENDED ORDER Based on the foregoing, IT IS ORDERED that on the effective date of the final order in this matter, the Registrar’s order denying Applicant Happy Family Contracting LLC’s request to Change Ownership/Personnel by adding Milan Peric’s name as owner shall be affirmed and Applicant’s appeal shall be dismissed. 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 7, 2019.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See Exhibit 1. [2] See Exhibit 2. [3] See Exhibit 3. [4] See Exhibit 4. [5] See Exhibit 6. [6] See Exhibit 5. [7] Former A.R.S. § 32-1154(A)(11) included among the grounds to suspend or revoke a contractor’s license, “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.” The statute has been renumbered as A.R.S. § 32-1154(A)(10) without any change to its language. [8] See Exhibit 7. [9] See A.R.S. § 32-1122. [10] See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [11] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [12] Black’s Law Dictionary at page 1220 (8th ed. 1999).

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