ALJDEC decisions subject to certification as final

2019A-01747-LDA-ROC · Registrar of Contractors · 2019-05-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: May 27, 2019 APPEARANCES: Thomas Raine, Esq. Asst Atty General, attorney for the Registrar. ADMINISTRATIVE LAW JUDGE: Randolph D. Wolfson, Esq.

FINDINGS OF FACT On or about January 8, 2019, Applicant K-Co Construction LLC submitted a Qualifying Party Exemption Application to the Registrar, which application for exemption for License No. 275509 is the subject of this Notice of Qualifying Party Exemption Denial.[1] License No. 275509 was suspended for lack of bond on January 18, 2017 through March 28, 2017.[2] 3. License No. 275509 was suspended for non-renewal on November 1, 215 through November 5, 2015.[3] The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for a fair evidentiary hearing. The Registrar issued a Notice of Hearing, setting a hearing at 1:00 p.m. on May 28, 2019. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record. 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.” A hearing was held on May 28, 2019. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its application denial. CONCLUSIONS OF LAW 1. The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D). 2. The Applicant bears the burden of proof to establish its entitlement to a qualifying party exemption by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19- 119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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). 3. A.R.S. § 32-1125 (C) allows an applicant to submit an application for a qualifying party exemption but it also requires that the applicant show that the license has been in effect during the last five years.

4. The Registrar has determined that a license is "in effect" if a contractor can lawfully engage in contracting under that license. A contractor cannot lawfully engage in contracting with an inactive license (the license must first be activated) or with a suspended license. Therefore, a licensee cannot qualify for a qualifying party exemption if, at any time during the past 5 years, the license was inactive or suspended.

5. In this application for an exemption, the suspensions[4] show, by a preponderance of the evidence, that the Applicant is unable to prove to that the license was in effect for the past 5 years.

CONCLUSION

Applicant failed to show that the License has been in effect for the past 5 years. 2. The Registrar’s denial of the Application for Exemption from Qualifying Party Requirements for License No. 275509 was, therefore, correctly denied because Applicant failed to show that the License has been in effect for the past 5 years.

3. Thus, the Registrar’s denial of the Application for Exemption from Qualifying Party is sustained and Applicant’s appeal denied.

RECOMMENDED ORDER

In light of the foregoing,

IT IS HEREBY RECOMMENDED that the Registrar’s denial of Qualifying Party Exemption Application of K-Co Construction LLC, ROC License 275509 should be affirmed.

IT IS FURTHER RECOMMENDED that appeal of K-Co Construction LLC, ROC License: ROC 275509 is denied.

FURTHER IT IS RECOMMENDED that that appeal of K-Co Construction LLC, ROC License: ROC 275509 is dismissed.

Done this day, May 28, 2019. /s/ Randolph D. Wolfson Administrative Law Judge

Transmitted electronically to:

K-Co Construction, LLC 4440 N. Scottsdale, Rd., #9-329 Scottsdale, AZ 85251 Appellant/Applicant

Thomas Raine, Esq. AZ Asst. Attorney General 1700 W. Washington Street, Suite I05 Phoenix AZ 85007-2812 For the Registrar

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] Administrative Judicial Notice is taken of the entirety of the Registrar’s physical and electronic records in this matter, including, but not limited to information displayed on the Registrar’s Public Access Website [2] Agency Public Access Website. [3] Ibid. [4] Id., footnotes 2 and 3.

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