ALJDEC decisions subject to certification as final

2021A-04214-OMC-LS-ROC · Registrar of Contractors · 2022-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

JW Construction Group, LLC

License No. ROC 315820,

RESPONDENT

No. 2021A-04214-OMC-LS-ROC

ADMINISTRATIVE LAW JUDGE

DECISION

HEARING: January 24, 2022

APPEARANCES: Assistant Attorney General Sarah Asta represented the Arizona Registrar of Contractors. Chance Peterson, Assistant Chief Counsel, appeared as a witness. Respondent JW Construction Group, LLC failed to appear.

ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella

FINDINGS OF FACT

On September 15, 2017, the Arizona Registrar of Contractors (“Registrar”) issued License No. 315820 to JW Construction Group, LLC (“Respondent”). Don Marvin McElwain is named on the license as its Qualifying Party, member, and 25% owner.

On September 3, 2013, the Registrar issued License No. 286561 to Cityluxe Companies, LLC (“Cityluxe”). Don Marvin McElwain is named on the license as its Qualifying Party and member.

On June 15, 2021, the Registrar issued a Final Administrative Decision and Order in Case No. 2020-05972, accepting an Administrative Law Judge Decision that recommended a three day suspension of Cityluxe’s License No. 286561 and the assessment of a $500.00 civil penalty to be paid in full within thirty (30) days of the effective date of the order.

On August 25, 2021, the Registrar revoked Cityluxe’s License No. 286561 for failure to pay the $500.00 civil penalty. The civil penalty remains unpaid.

On June 16, 2021, the Registrar issued a Final Administrative Decision and Order in Case No. 2019-05347, that ordered a payout from the Recovery Fund in the amount of $15,995.00, to be assessed against Cityluxe’s License No. 286561.

Cityluxe was notified by letter dated August 9, 2021 of the following:

Your license is suspended by operation of law until the amount paid from the Fund is repaid in full, plus interest at the rate of 10 percent.

Any person who is or was named on the license at the time of the act(s) or omission(s) giving rise to this claim may not receive a new license, and any existing license listing that person is also suspended by operation of law, until the full amount is repaid as provided above.

On August 9, 2021, Cityluxe’s License No. 286561 was suspended by operation of law pursuant to A.R.S. § 32-1139(B), for failing to repay the Recovery Fund for the $15,995.00 payout.

Don Marvin McElwain was named on Cityluxe’s License No. 286561 at the time the acts and/or omissions occurred that resulted in the suspension and revocation of the license in Case Nos. 2020-05972 and 2019-05347.

On September 10, 2021, the Registrar issued a Citation and Complaint against Respondent for alleged violation(s) of A.R.S. § 32-1154(A)(20).

On September 24, 2021, Respondent’s Answer was timely received by the Registrar. In the Answer for Respondent, Jacobo Hernandez, Manager for Respondent, stated, “We were not aware of what happened with this complaint we have spoken with Don McElwain and he is trying to resolve this matter. Witness Madera and Jacobo Hernandez weren’t with Don McElwain when this complaint was done.” (All errors in original.)

On October 8, 2021, the Registrar issued a Notice of Hearing to the above-captioned parties, setting this matter for hearing on November 9, 2021, to be held via Google Meet. Also on October 8, 2021, the Office of Administrative Hearings issued to the parties an Order Setting Hearing Via Google Meet, in which the Google Meet link for hearing was provided to the parties.

On November 4, 2021, Respondent filed a Motion to Continue Hearing. On November 9, 2021, a Minute Entry Granting Continuance was issued to the parties. The Minute Entry advised the parties that the hearing was scheduled to convene on January 24, 2022, at 1:00 p.m., and provided the Google Meet link for the continued hearing setting. The Minute Entry was sent to Respondent’s email address of record.

On January 24, 2022, at the time set for hearing, Assistant Attorney General Sarah Asta represented the Registrar. Assistant Chief Counsel for the Registrar, Chance Peterson, appeared as a witness. Respondent failed to appear. Mr. Peterson testified consistently with the above-delineated Findings of Fact and referenced the Registrar’s thirteen exhibits, all of which were admitted into evidence.

In closing, the Registrar requested the imposition of an indefinite suspension of Respondent’s license.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction, and was properly brought before the Office of Administrative Hearings.

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

The Registrar bears the burden of proof to establish grounds for discipline of Respondent’s contractor’s license by 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.”

The record reflects that Don Marvin McElwain was the Qualifying Party on Cityluxe’s License No. 286561 in Case Nos. 2020-05972 and 2019-05347, and that the $500.00 civil penalty assessed in Case No. 2020-05972, has not been paid by or on behalf of the license, and that the $15,995.00 payout plus interest in Case No. 2019-05347 has not been repaid to the Recovery Fund. It is also undisputed that Don Marvin McElwain is currently the Qualifying Party on Respondent’s license.

Because Don Marvin McElwain did not disassociate from Respondent’s license prior to the act(s) and/or omission(s) that occurred in Case Nos. 2020-05972 and 2019-05347, the Registrar has established by a preponderance of the evidence that Respondent is in violation of A.R.S. § 32-1154(A)(20). As such, the Registrar has also established grounds to take disciplinary action against Respondent’s contractor’s license.

The Tribunal concludes that indefinite suspension of Respondent’s License No. 315820 is appropriate, just, and in the best interest of the public.

RECOMMENDED ORDER

Based on the foregoing,

IT IS RECOMMENDED that on the effective date of the Final Order in this matter, JW Construction Group, LLC’s License No. 315820 be suspended until $500.00 is tendered in certified funds to the Registrar in Case No. 2020-05972, and $15,995.00, plus interest, is tendered in certified funds to the Registrar in Case No. 2019-05347.

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 forty (40) days from the date of that certification.

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-137160-45720000Done this day, February 1, 2022.

/s/ Sondra J. Vanella

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors

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