ALJDEC decisions subject to certification as final

2021A-04544-LDA-LS-ROC · Registrar of Contractors · 2021-11-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT

Zackery Robert Anderson

License No. ROC 328499,

RESPONDENT

No. 2021A-04544-LDA-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: November 9, 2021

APPEARANCES: Respondent Zackery Robert Anderson appeared on his own behalf. The Arizona Registrar of Contractors was represented by Assistant Attorney General John R. Tellier.

ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer

_____________________________________________________________________

FINDINGS OF FACT

On or about April 15, 2020, the Arizona Registrar of Contractors (ROC) issued to Respondent Zackery Robert Anderson License No. 328499 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, Respondent had until October 15, 2021, to pass the licensing exam or the license would expire.

At some point prior to September 21, 2020, Respondent failed the licensing exam.

On or about September 21, 2020, the Registrar notified Respondent that the license was suspended due to Respondent failing the licensing exam.

On or about August 5, 2021, Respondent submitted an Application for Exemption from Qualifying Party Requirements (Application). In the narrative attached to the Application, Respondent stated that he had taken the exam a “few times” and had paid for a class to pass the text, but was unable to do so. Respondent indicated he had been a plumber for 16 years and did not have any complaints from the time that he was contracting in Arizona under the provisional license. Respondent asserted that he had been able to pass the test in California, but then moved to Arizona.

On or about August 19, 2021, the Registrar issued a Notice of Qualifying Party Exemption Denial (Notice). The Notice provided that an applicant for a qualifying party exemption has to show that the license has been “valid and active” during the last five years, and because Respondent’s license was issued less than five years prior to the Application, the license could not have been valid and active for five years.

Respondent requested a hearing, which led to this matter being scheduled.

Among the requirements for a qualifying party exemption is a showing that the contractor’s license has been “valid and active” for the prior five years. Ariz. Rev. Stat. § 32-1125(C)(1).

At hearing, Respondent did not dispute that his license was active for less than five years and that he failed the licensing exam. Respondent indicated that his dyslexia may be an issue in his inability to pass the licensing exam. Respondent acknowledged that the Registrar needed to protect the public from individuals who were not capable and competent, but argued that his practical experience should be taken into account. Respondent stated that in California, he was able to take a practical exam to demonstrate his abilities after he had failed the written examination.

CONCLUSIONS OF LAW

Complainant 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).

Ariz. Rev. Stat. § 32-1125(C) provides, in pertinent part, as follows:

C. A licensee may apply in writing to the registrar for exemption from a qualifying party. The licensee must show to the satisfaction of the registrar that during the past five years the licensee:

1. Held a valid and active license and could legally contract under this chapter for the entire five-year period.

Respondent’s license was not valid and active for a period of five years prior to the Application. Therefore, Respondent did not show by a preponderance of the evidence that he met the requirements for a qualifying party exemption under Ariz. Rev. Stat. § 32-1125(C).

While Respondent’s request that he be permitted to take a practical examination to demonstrate his knowledge may be a legitimate request, the Registrar’s statutory scheme does not provide for a practical examination. The creation and implementation of such an examination would require legislative enactment.

RECOMMENDED ORDER

IT IS RECOMMENDED that Respondent’s appeal be denied.

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

001

-137160-45720000Done this day, November 29, 2021.

/s/ Tammy L. Eigenheer

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors-54864001

001

-137160-45720000