ALJDEC decisions subject to certification as final

2021A-03967-OMC-LS-ROC · Registrar of Contractors · 2022-01-26

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Serrano's Surfaces LLC

License No. ROC 329631,

RESPONDENT

No. 2021A-03967-OMC-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 6, 2022

APPEARANCES: Respondent Serrano’s Surfaces LLC did not appear at the hearing. The Arizona Registrar of Contractors was represented by Assistant Attorney General Sarah Asta.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

On or about June 25, 2020, Respondent Serrano’s Surfaces LLC submitted an application for licensure with the Arizona Registrar of Contractors (Registrar or ROC).

Keith A. Eusebio Serrano was identified as the sole owner and qualifying party on Respondent’s license application.

In the application, Respondent answered “No” to the question, “Has the Qualifying Party listed in Part 2 ever received a citation for, or been convicted of, contracting without a license in any state?”

On or about July 10, 2020, the Registrar issued to Respondent License No. 329631 under the applicable exceptions to the general licensing requirements in place due to the COVID-19 pandemic.

The exception applicable to this matter provided that, because the testing centers were not open at the time, the Registrar was issuing provisional licenses and giving licensees six months to pass the exam.

As a result of the exception, Mr. Serrano had until January 10, 2021, to pass the licensing exam or the license would expire.

At no point prior to January 10, 2021, did Mr. Serrano pass the licensing exam.

On or about January 11, 2021, the Registrar issued a letter to Respondent noting that, because the qualifying party had failed to pass the required exams, the license was suspended, effective immediately.

History of Unlicensed Contracting

Respondent’s license application, which was submitted to the Registrar on June 25, 2020, did not disclose any citations or convictions of unlicensed contracting.

On or about January 21, 2020, the Registrar received an unlicensed complaint against Mr. Serrano.

The unlicensed complaint was referred to the Maricopa County Attorney’s Office for prosecution, resulting in a Direct Complaint filed on June 10, 2020, in Case No. JC2020-123012.

On or about August 11, 2021, Mr. Serrano was found guilty of A.R.S. § 32-1164(A), and the court set a restitution hearing for October 6, 2021.

Present Citation and Complaint

On or about August 18, 2021, the Registrar issued a Citation and Complaint to Respondent charging possible violations of A.R.S. § 32-1154(A)(19) and A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1122(C).

On or about September 1, 2021, Respondent submitted a Written Answer to Citation and Complaint in which Mr. Serrano stated that he believed he “was good to work once [his] LLC was approved.”

The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing.

The Registrar issued a Notice of Hearing, setting a hearing at 9:00 a.m. on January 6, 2022, to be conducted via Google Meet. The Registrar sent copies of the Notice of Hearing to Respondent at its address and email address of record.

On or about December 27, 2021, the Office of Administrative Hearings issued an Order to the parties providing the information necessary to connect to the hearing. The Order was sent to Respondent at its email address of record.

The hearing was held on January 4, 2022. Respondent did not request to appear in person and did not request that the hearing be continued. Although the start of the hearing was delayed 15 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

At hearing, Chance Peterson, Assistant Chief Counsel, testified that, in preparing for the hearing, he discovered that Respondent had made a restitution payment the day before the hearing.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq.

The copies of the Notice of Hearing that the Registrar mailed and emailed to Respondent at its address and email of record and at the address were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

The Registrar bears the burden of persuasion. Ariz. Rev. Stat. § 41-1092.07(G)(1).

The standard of proof on all issues in this matter is that of a preponderance of the evidence. Ariz. Admin. Code § 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).

The evidence of record established that Mr. Serrano, a person named on Respondent’s license, engaged in contracting without a license prior to the issuance of Respondent’s license. Accordingly, the Registrar established that Mr. Serrano lacked good character and reputation in violation of A.R.S. § 32-1122(C) and failed to comply with the Registrar’s statute in violation of A.R.S. § 32-1154(A)(12).

Had the Registrar known of Mr. Serrano’s unlicensed contracting at the time it issued the license to Respondent, the Registrar would have had grounds to deny the application. Therefore, the Registrar established grounds to discipline Respondent’s license pursuant to A.R.S. § 32-1154(A)(19).

RECOMMENDED ORDER

IT IS RECOMMENDED that on the effective date of the final order in this matter, the Registrar revoke Respondent Serrano’s Surfaces LLC License No. 329631.

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.

-54864001

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-137160-45720000Done this day, January 26, 2022.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

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-137160-45720000