ALJDEC decisions subject to certification as final

2021A-00094-OMC-LS-ROC · Registrar of Contractors · 2021-04-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT,

v.

William Lawrence Shields,

License No. ROC 296885,

RESPONDENT.

No. 2021A-00094-OMC-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: April 5, 2021

APPEARANCES: Assistant Attorney General John Tellier appeared on behalf of the Arizona Registrar of Contractors. Respondent William Lawrence Shields appeared on behalf of himself.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

findings of fact

1. Respondent William Lawrence Shields DBA Mountain Cove Development (Respondent or Mr. Shields) holds license number 296885 issued by the Arizona Registrar of Contractors (Registrar).

2. On or about July 21, 2020, Registrar Investigator Mike Wiskow found a construction sign in Wickenburg, Arizona that listed License No. 296885 under the name “Shields Custom Homes.” See Exhibit 3.

3. On August 10, 2020, the Registrar issued a letter to Respondent that included language explaining that Respondent must act in the capacity of a contractor under the name listed on his license. See Exhibit 4. The August 10, 2020 letter provided in relevant part as follows:

It appears that you may be operating under a name other than the name on your license. The name of your license is William Lawrence Shields DBA: Mountain Cove Development, while your site advertisement listing your name as Shields Custome Homes. Under A.R.S. § 32-1154(A)(14), you must act in the capacity of a contractor under the name listed on your license.

A violation of A.R.S. § 32-1154(A)(14) would constitute grounds to suspend or revoke your license. Please review A.R.S. § 32-1154(A)(14) and make sure you are complying with its requirements. In order to resolve this matter, the Registrar suggests you:

1. Operate your construction business only under the name in which you are licensed; or

2. Request a formal name changed with our Licensing Department. (The Name Change request form can be found on our website at roc.az.gov.)

The Registrar does not presently intend to pursue disciplinary action for the alleged violations. However, this warning letter does not preclude the Registrar from electing to pursue action against your license for these violations in the future.

All errors in original.

4. On August 10, 2020, Investigator Wiskow sent an e-mail to Mr. Shields inquiring when the matter would be resolved. See Exhibit 5. Investigator Wiskow attached the August 10, 2020 warning letter to the e-mail. See id.

5. Investigator Wiskow did not receive a response to the August 10, 2020 e-mail. See Hearing Audio Record (HA) at 15:06 – 16:14.

6. On January 7, 2021, Investigator Wiskow observed an advertisement in Wickenburg, Arizona that listed License No. 296885 under the name “Shields Custom Homes.” See Exhibit 7 and HA at 17:30 – 19:14.

7. On January 16, 2021, the Registrar issued a Citation against Respondent’s

license, charging cause to suspend or revoke the license under A.R.S. § 32-1154(A)(14).

8. On February 8, 2021, Respondent filed an answer to the Citation.

See Exhibit 6. Mr. Shields notified Investigator Wiskow that the signs had been removed. See Exhibit 6. The e-mail provided in relevant part as follows:

Case No. 2021-00094

The signs have been taken down, however the signs were for a DBA, a completely different entity. Nothing to do with contracting for anyone. We are not contracting for anyone and never have since we have obtained the Arizona contractors license. Thank you for your concerns.

William Shields

Shields Custom Homes

(602) 721-8495

9. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.

10. A hearing was held on April 5, 2021.

11. The Registrar presented the testimony of Investigator Wiskow. Mr. Shields testified on behalf of himself.

12. Investigator Wiskow testified to the events that led up to the issuance of the Citaiton.

13. The Registrar is seeking a 30 day suspension of Mr. Shields’s license.

14. Mr. Shields did not dispute Investigator Wiskow’s testimony. Mr. Shields contended that he has never contracted in the name of Shields Custom Homes and that he did not intend to mislead or defraud the public. Mr. Shields explained that he has been battling cancer and undergoing medical treatment in California. Mr. Shields stated that his son responded to the warning letter. Mr. Shields did not dispute that the advertisement that Investigator Wiskow observed on January 7, 2021 was not taken down until after the answer was filed. Mr. Shields built a home in Wickenburg. Mr. Shields stated that he opened a bank account in the DBA of Shields Custom Homes to pay for the building permit for the project where Investigator Wiskow took pictures of one of the signs.

CONCLUSIONS OF LAW

“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. section 41-1092.07(G)(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 section R2-19-119.

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).

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:

*****

14. Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth on the license.

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.").

“Statutes shall be liberally construed to effect their objects and to promote justice.” A.R.S. section 1-211(B).

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 undisputed evidence in this matter established that Respondent violated Ariz. Rev. Stat. section 32-1154(A)(14).

Consequently, Respondent’s license should be suspended.

ORDER

Based on the foregoing, it is recommended that the Registrar suspend Respondent’s License No. 296885 issued by the Registrar for 30 days.

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, April 22, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors