ALJDEC decisions subject to certification as final
2022A-00338-LDA-ROC · Registrar of Contractors · 2022-04-04
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Arizona Registrar of Contractors,
COMPLAINANT,
v.
Yuma Pool Service, LLC
RESPONDENT.
No. 2022A-00338-LDA-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: March 15, 2022
APPEARANCES: Assistant Attorney John Tellier appeared on behalf of the Arizona Registrar of Contractors. Shane Darnell appeared on behalf of Respondent Yuma Pool Service, LLC.
ADMINISTRATIVE LAW JUDGE: Velva Moses-Thompson
_____________________________________________________________________
FINDINGS OF FACT
1. On July 23, 2020, the Arizona Registrar of Contractors (ROC) received a complaint alleging unlicensed contracting on the part of Shane Michael Darnell.
2. The July 23, 2020 compliant included an invoice from Yuma Pool Service, LLC showing a total contract price of $65,952.23. The complainant alleged that Mr. Darnell gave the complainant “his license number as ROC 248137. License No. ROC 248137 is a KB-1 license, issued to Nathaniel David Darnell Jr. DBA: DWD Construction, a sole proprietorship with which Shane Darnell is not associated.
3. On January 2, 2021, the ROC issued a Cease and Desist Order and Civil Citation wherein the ROC ordered Mr. Darnell to cease contracting without a license. See Exhibit 3.
4. On November 16, 2021, the Arizona Registrar of Contractors (ROC) received license application number [number redacted]. Mr. Darnell was a signatory on the application as the sole owner and qualifying party for Yuma Pool Service, LLC.
5. The application included a disclosure form, which form was marked “No” for whether any individual listed on the application had ever received a citation for, or been convicted of, contracting without a license.
6. The Prior License Information form states: “Failure to accurately answer this question may be a material misrepresentation of fact and a violation of A.R.S. § 32-1154(A)(5).
7. On November 17, 2021, Shane Michael Darnell was charged with contracting without a license in Yuma Municipal Court, Case No. CM20-1181. See Exhibit 4.
8. On December 7, 2021, the ROC issued a notice to Mr. Darnell denying his application for licensure. The reason for the denial provided in the notice was:
1. Mr. Darnell failed to establish good character and reputation under A.R.S. § 32-1122(C) by engaging in unlicensed contracting, and by making a material misrepresentation upon the license application in violation of § 32-1154(A)(5).
9. Mr. Darnell requested an appeal regarding the denial.
10. The matter was referred to the Office of Administrative Hearings for an evidentiary hearing.
11. A hearing was held on March 15, 2022.
12. The ROC presented the testimony of Assistant Chief Counsel, Chance Peterson. Mr. Darnell testified on behalf of himself.
13. At hearing, Mr. Peterson explained that he reviews applications for licensure and prepares denials. Mr. Peterson issued the denial of Mr. Darnell’s application. Mr. Peterson provided testimony regarding the basis of the denial.
14. Mr. Darnell testified to the effect that he aided and abetted another contractor when he received a check made out to Yuma Pool Service that should have been written out to DWD Mr. Darnell stated that he worked for DWD. Mr. Darnell described his action as a mistake. Mr. Darnell explained that after the customer wrote the check, the customer disappeared. Mr. Darnell stated that his boss told him to cash the check and give him the money and Mr. Darnell did so. Mr. Darnell stated that he was advised to file for a contractor’s application but he missed that the part of the application that asked whether he had ever been charged with “something.” Mr. Darnell denied that he was found guilty of contracting without a license. Mr. Darnell stated that he pled guilty to attempting to contract without a license. Mr. Darnell stated that the complaint was dismissed on March 14, 2022.
15. The ROC’s counsel requested that the Administrative Law Judge (AlJ) take judicial notice that Mr. Darnell entered a guilty plea in case M-1441-CM-[number redacted] in Yuma. However, there was no written evidence of the guilty plea and the ALJ does not have access to Yuma’s court documents.
CONCLUSIONS OF LAW
This matter lies within the Registrar’s jurisdiction.
Applicant bears the burden of proof to establish that it meets statutory qualifications for a contractor’s license by a preponderance of the evidence. See Ariz. Rev. Stat. section 41-1092.07(G)(1); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952).
“A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”
Ariz. Rev. Stat. section 32-1122(C) provides, in relevant part, as follows:
To obtain or renew a license under this chapter, each person shall be of good character and reputation. Lack of good character and reputation may be established by showing that a person has engaged in contracting without a license or committed any act that, if committed or done by any licensed contractor, would be grounds for suspension or revocation of a contractor's license or by showing that the person was named on a contractor's license that was suspended or revoked in another state.
5. Ariz. Rev. Stat. section 32-1154(A)(5) provides, in relevant part,
as follows:
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:
. . . .
Misrepresentation of a material fact by the applicant in obtaining a license.
6. The preponderance of the evidence shows that Mr. Darnell misrepresented a material fact when he replied “no” to the question of whether he had ever been cited for unlicensed contracting on an ROC licensure application.
7. Therefore, the ROC has established that Mr. Darnell lacks good character and reputation as required under Ariz. Rev. Stat. section 32-1122(C).
8. The evidence of record supports the ROC’s denial of Yuma Pool Service, LLC’s application for a contractor’s license.
RECOMMENDED ORDER
Based on the foregoing, it is recommended that the December 7, 2021 denial of Yuma Pool Service, LLC’s application for a contractor’s license be affirmed.
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 days from the date of that certification.
Done this day, April 4, 2022.
/s/ Velva Moses-Thompson
Administrative Law Judge
Transmitted electronically to:
Jeffrey Fleetham, Director
Registrar of Contractors
By: Miranda Alvarez
Legal Secretary