ALJDEC decisions subject to certification as final

2021A-03057-CHC-ROC · Registrar of Contractors · 2021-09-21

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Retro Plumbing, Inc.,

COMPLAINANT,

v.

Future Foresight, Inc.

License No. ROC 169075,

RESPONDENT.

No. 2021A-03057-CHC-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 1, 2021

APPEARANCES: Dean Allen Stacks appeared on behalf of Complainant Retro Plumbing, Inc. Jeff Holdsworth appeared on behalf of Respondent Future Foresight, Inc.

ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson

_____________________________________________________________________

FINDINGS OF FACT

Complainant Retro Plumbing, Inc. (Retro Plumbing) holds license number

222363 issued by the Arizona Registrar of Contractors (Registrar).

Dean Allen Stacks is the qualifying party for Retro Plumbing.

Respondent Future Foresight, Inc. (Future Foresight) holds B-1 General

Commercial Contractor license number 169075 issued by the Registrar.

Jeffrey Allan Holdsworth is the qualifying party for Future Foresight.

Holdsworth nor Future Foresight holds a plumbing license in the State of

Arizona.

6. On April 2, 2021, Holdsworth sent a text message to Stacks at approximately 10:00 a.m. that provided the following:

I am putting a bathroom in my shop. Attached is the plan. Can you please give me a price for doing the plumbing? I was also wondering if you would be willing to let me do all the work myself, but if the city questioned me and could say you were superviseing [sic] it. Was wondering if you would be willing to do that and how much you would charge me to use your name?

7. Holdsworth with the following text:

.....I will work on that and your shop bid next week.

I unfortunately will not let anyone use my license.

8. On or about June 24, 2021, Stacks observed Holdsworth performing

plumbing work at a commercial construction project located at 3837 Andy Devine (Andy Devine Project) with the City of Kingman. However, Holdsworth nor Retro Plumbing performed plumbing work at the Andy Devine Project. Holdsworth nor Retro Plumbing performed plumbing work at the Andy Devine Project. Stacks listed Retro Pluming was listed as a contractor at the site.

9. On June 29, 2021, Stacks notified the Registrar by e-mail that Holdsworth

requested to use his plumbing license. The Registrar notified Stacks that he would need to file a complaint to pursue the matter.

On June 29, 2021, the City of Kingman issued a Stop Work notice to

Holdsworth for the address located at 3837 Andy Devine. The Stop Work notice stated that unlicensed plumbing work was being performed by Holdsworth. The City of Kingman found that the base plumbing and the foundation had been completed.

On July 1, 2021, Registrar Investigator Robert McQuien conducted an

investigation into Stack’s allegation. Investigator McQuien visited the City of Kingman found that Holdsworth listed Retro Plumbing with its license number as the plumbing subcontractor. Investigator McQuien found that Holdsworth first changed the contractor from Retro Plumbing to Route 66. Investigator McQuien also found that Holdsworth changed the subcontractor to True Love Plumbing. See id.

On July 4, 2021, Holdsworth requested that Retro Plumbing be removed

as the plumbing contractor and requested that True Love be listed as the contractor.

On or about July 7, 2021, Investigator McQuien recommended that the

Registrar issue a Citation against Future Foresight’s license.

On or about July 13, 2021, the Registrar issued a Citation against the

license of Future Foresight. Through the Citation, the Registrar alleged that Future Foresight may have violated Ariz. Rev. Stat. section 32-1154(A)(6) and Ariz. Rev. Stat. section 32-1154(A)(16).

The Citation shows that if the Administrative Law Judge finds that the

alleged charges are valid, the Registrar may suspend or revoke the license of Future Foresight.

Future Foresight filed a timely answer to the Citation.

The matter was referred to the Office of Administrative Hearings for an

evidentiary hearing.

On or about July 30, 2021, the Registrar issued a Notice of Hearing

setting the matter for hearing on September 1, 2021. The Notice of Hearing shows that the hearing was set to consider the charges made in the Citation and Complaint.

On September 1, 2021, a hearing was conducted.

At hearing, Stacks testified on behalf of Retro Plumbing. Investigator

McQuien testified regarding his investigation of the complaint and Citation recommendation. Holdsworth testified on behalf of Future Foresight.

Stacks explained that Holdsworth asked to use his contractor’s license.

Stacks explained that he told Holdsworth that he would not allow anyone to use his license.

Holdsworth stated that he did not ask Stacks if he could use Stack’s

License. Holdsworth asked Stacks if he would supervise Holdsworth’s plumbing work. Holdsworth planned to do the plumbing work himself as an “owner/builder”.

I do not find Holdsworth’s testimony to be credible given its inconsistency

with the written evidence submitted from the Registrar’s file that shows that Holdsworth asked Stacks how much Stacks would charge to use his name.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory section cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

The Administrative Law Judge may consider Registrar’s administrative record. See A.A.C. section R4-9-118.

The preponderance of the evidence shows that Future Foresight made a

material misrepresentation when he listed Retro Plumbing as a subcontractor with the City of Kingman. While Retro Plumbing could have been harmed by Future Foresight’s fraudulent act, there was no evidence presented at hearing that Future Foresight’s action damaged Stacks or Retro Plumbing, or the property of Stacks or Retro Plumbing. Therefore, the Administrative Law Judge concludes that Future Foresight has not violated A.R.S. § 32-1154(A)(6).

The preponderance of the evidence shows that Future Foresight knowlingly

Contracted beyond the scope of his B-1 General Commercial Contractor license when he performed plumbing work at the Andy Devine Project, which is a violation of A.R.S. § 32-1154(A)(16).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent’s license number 169075 for three days.

Done this day, September 21, 2021.

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, September 1, 2021.

/s/ Velva Moses-Thompson

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors