ALJDEC decisions subject to certification as final

2019A-06377-OMC-ROC · Registrar of Contractors · 2020-09-09

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Mendoza Framing LLC,

License No. ROC 325717,

RESPONDENT

No. 2019A-06377-OMC-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: August 28, 2020 at 9:00 a.m.

APPEARANCES: Assistant Attorney General John Tellier appeared on behalf of the Arizona Registrar of Contractors (“Registrar”) with Robert Stirling, Assistant Chief Counsel for the Registrar. Respondent Mendoza Framing, LLC did not appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

_____________________________________________________________________

FINDINGS OF FACT

On August 6, 2019, the Registrar issued a CR-7 Carpentry License Number 325717 to Respondent Mendoza Framing, LLC (“Respondent”). Respondent’s license application filed with the Registrar on August 5, 2019, names Jose Mendoza Aguilar on the license as Qualifying Party/Member and 100% owner. The business address for Respondent is listed as 30266 N. Emily Dr., Queen Creek, Arizona 85142.

Respondent’s license application contains a section entitled, “Prior License Information.” In that section, Respondent indicated that Jose Mendoza Aguilar was also named on Nieto’s Framing, Inc.’s (“Nieto’s”) CR-36 License Number 310347, and that license is active for the dates December 2, 2016 through December 31, 2020. It also indicated that Jose Mendoza Aguilar was listed on Nieto’s CR-07 License Number 275097 from September 30, 2011 until September 30, 2019.

On November 28, 2012, Nieto’s filed a license application with the Registrar on which Jose Mendoza Aguilar was named as Qualifying Party/President and 100% owner of Nieto’s. The business address for Nieto’s is listed as 30266 N. Emily Dr., Queen Creek, Arizona 85142.

The Registrar issued License Number 282566 to Nieto’s on December 19, 2012.

In February 2018, Nieto’s cancelled its workers’ compensation insurance policy.

Ten months after cancelling its workers’ compensation insurance policy, on December 21, 2018, the Registrar received a license renewal application for Nieto’s. The renewal application contains the following advisement in pertinent part:

When you submit a renewal application, you are representing to the Registrar that the following is true:

. . . .

4. Workers’ Compensation: You are complying with all applicable statutes and rules governing workers’ compensation and you have a valid workers’ compensation policy, if required.

. . . .

Warning: Misrepresentation of any material fact in a license renewal application may be grounds for the rejection of the license application, or the subsequent revocation of a license under A.R.S. § 32-1154(A)(19).

(Emphasis in original.)

On September 6, 2019, the Industrial Commission of Arizona filed a Civil Complaint against Nieto’s in Maricopa County Superior Court for injunctive relief to cause Nieto’s to cease operating its business for failing to comply with the law requiring workers’ compensation insurance.

On January 9, 2020, a Form of Judgment was issued by Maricopa County Superior Court Commissioner David Garbarino in which a default judgment was entered against Nieto’s enjoining Nieto’s from operating its business unless and until Nieto’s obtains workers’ compensation coverage in effect at all times.

On April 29, 2020, the Registrar issued a Citation and Complaint to Nieto’s alleging violations by Nieto’s of A.R.S. §§ 32-1154(A)(4), (A)(5), and (A)(19).

On May 20, 2020, the Registrar issued a Final Administrative Decision and Order (Default) in which the Registrar concluded that Nieto’s violated A.R.S. §§ 32-1154(A)(4), (A)(5), and (A)(19) as charged in the Citation and Complaint, and revoked Nieto’s license effective May 27, 2020.

On June 30, 2020, the Registrar issued a Citation and Complaint to Respondent alleging that Jose Mendoza Aguilar was named on the now revoked license of Nieto’s, License Number 282566, at the time the acts or omissions occurred and may not be named on Respondent’s License Number 325717, pursuant to A.R.S. § 32-1154(A)(20).

Administrative Notice is taken of Respondent’s License record for License Number 325717, as reflected on the Registrar’s public website on September 3, 2020. Such prior License record reflects that Respondent’s license is currently active, has had no prior discipline, and only has the instant open Complaint.

On July 29, 2020, the Registrar issued a Notice of Hearing on Contested Case (“Notice”), setting this matter before the Office of Administrative Hearings, an independent state agency. The Notice advised Respondent of the date, time, and location of the hearing, and was sent to Respondent’s address of record with the Registrar via U.S. Mail and Respondent’s email address of record with the Registrar. On August 13, 2020, the Office of Administrative Hearings issued an Order setting the hearing via Google Meet or telephonically. That Order was also issued to Respondent’s address of record. Respondent failed to appear for hearing.

CONCLUSIONS OF LAW

The Notice of Hearing on Contested Case the Registrar mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter.

The Registrar has jurisdiction over this matter pursuant to A.R.S. §§ 32-1101 et seq. and 32-1154(A). The matter was properly brought before the Office of Administrative Hearings pursuant to A.R.S. §§ 41-1092 et seq.

The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.

“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.”

The Registrar bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. The standard of proof on all issues in this matter is that of a preponderance of the evidence. “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.” 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.”

A.R.S. § 32-1154(A)(20) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[h]aving a person named on the license who is or was named on any other license in this state or in another state that is under suspension or revocation for any act or omission that occurs while the person is or was named on the license unless the prior revocation was based solely on a violation of this paragraph.”

Because the Registrar established by a preponderance of the evidence that Jose Mendoza Aguilar is named on Respondent’s license and was named on Nieto’s license when it was revoked, the Registrar has established that Respondent is in violation of A.R.S. § 32-1154(A)(20) and has established cause for it to take disciplinary action against Respondent’s license.

Considering Respondent’s conduct, the Administrative Law Judge concludes that the Registrar shall revoke Respondent’s license.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in this matter, Mendoza Framing, LLC’s license Number 325717 shall be revoked.

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 40 days from the date of that certification.

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-137160-45720000Done this day, September 9, 2020.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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