ALJDEC - Licensing
2024A-02623-OMC-LS-ROC · Registrar of Contractors · 2024-08-13
IN THE OFFICE OF ADMINISTRATIVE HEARINGS
Arizona Registrar of Contractors,
COMPLAINANT
v.
Ottaway Investments LLC
DBA: DBA: Servpro of Scottsdale,
Avondale, Goodyear and Southwest Phoenix License No. ROC 320432,
RESPONDENT
No. 2024A-02623-OMC-LS-ROC
ADMINISTRATIVE LAW JUDGE DECISION
HEARING: July 25, 2024
APPEARANCES: : Assistant Attorney General Charles S. Hover III appeared on behalf of the Arizona Registrar of Contractors (“Registrar”) with Robert Sterling as a witness. No appearance(s) by or on behalf of Ottaway Investments LLC (“Respondent”) were made.
ADMINISTRATIVE LAW JUDGE: Amy M. Haley
EXHIBITS ADMITTED INTO EVIDENCE: Complainant’s exhibits 1 through 18 were admitted.
_____________________________________________________________________
After review of the hearing record in this matter, the undersigned Administrative Law Judge makes the following Findings of Fact and Conclusions of Law, and issues this Recommended Order to the Director of the Registrar.
FINDINGS OF FACT
Background and Procedure
Pursuant to Ariz. Rev. Stat. § 32-1101, on May 9, 2024, the Registrar issued a Complaint and Citation to Respondent.
Pursuant to Ariz. Rev. Stat. § 41-1092.05(D), the Registrar issued a A Notice of Hearing on Contested Case on June 10, 2024, setting the hearing for July 25, 2024, at 9:00 AM.
On June 10, 2024, the Office of Administrative Hearings issued an Order advising the parties how to connect to the hearing through Google Meet.
The hearing was held on July 25, 2024.
The Registrar submitted 18 exhibits and presented the testimony of Robert Sterling, Assistant General Counsel.
Although the start of the duly noticed hearing was delayed approximately ten minutes to allow Respondent additional time, Respondent did not appear on his own behalf, through an authorized officer, employee, or attorney, and did not contact the Office of Administrative Hearings to request that the start of the hearing be further delayed, nor did Respondent request that the hearing be continued. Consequently, Respondent did not present any evidence to defend its license.
On June 8, 2018, Respondent was issued ROC License No 320432 for General Dual KB-1 Dual Building Contractor.
Carl G. Novobilski was named on the application for the license as the qualifying party.
On March 25, 2022, Mr. Novobilski submitted to the Registrar a Notice of Qualifying Party Disassociation.
The Registrar approved the disassociation on June 17, 2022 and informed Respondent that its license would be automatically suspended if no new qualifying party was named within 60 days.
Respondent did not submit an application for a new qualifying party, and the license was suspended for lack of qualifying party on July 17, 2022, which suspension has not been cleared.
On October 13, 2022, the Registrar issued a Final Administrative Decision and Order (Default) in Case No. 2022-07761, finding Respondent in violation of Ariz. Rev. Stat. § 32-1154(A)(10), and suspended Respondent’s license until it paid Complainant $14,162.65.
Respondent’s license was suspended on October 20, 2022, which suspension has not been cleared.
Complaint No. 2024-01290
On February 2, 2024, the Registrar received Complaint No. 2024-01290 filed against Respondent, alleging a date of contract of October 4, 2023, and that work was performed between September 7, 2023 and January 31, 2024.
The parties’ contract showed that it was entered into on September 21, 2023, with an estimated completion date of September 27 2023.
On March 27, 2024, the Registrar issued a Warning Letter to Respondent for contracting with a suspended license.
The complaint was closed on April 4, 2024, per the complainant’s request.
Complaint No. 2024-3711
On March 29, 2024, the Registrar received Complaint No. 2024-03711 filed against Respondent, alleging a contract date of June 8, 2023, and that work was performed between June 9 and June 26, 2023.
The complainant did not submit a copy of the parties’ contract, but submitted a statement explaining the circumstances.
On April 10, 2024, the Registrar dismissed the complaint due to modification of the work.
Complaint No. 2024-04795
On April 26, 2024, the Registrar received Complaint No. 2024-04795 filed against Respondent, alleging a contract date of August 25, 2023, and work performed from October 12, 2023 to January 24, 2024.
The contract showed a total contracted amount of $8,263.05.
Hearing Evidence
Mr. Sterling testified consistently with the above Findings of Facts and the Registrar’s admitted exhibits.
CONCLUSIONS OF LAW
This matters 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 Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable. The Notice of Hearing sent to Respondent was not returned as undeliverable. Thus, Respondent is deemed to have received notice of the scheduled proceedings.
The Registrar bears the burden of proof to establish grounds for suspension or revocation 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.”
Ariz. Rev. Stat. § 32-1154(A)(17) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[c]ontracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status.”
The evidence in this matter is undisputed.
The record reflected that Respondent’s license was suspended on July 17, 2022 due to not having a qualifying party.
The record reflected that Respondent’s license was again suspended on October 20, 2022 for failure to tender $14,162.65 to complainant.
The record further reflected that none of the aforementioned suspensions had ever lifted.
The conduct and circumstances set forth in Paragraphs 7 through 23 above constituted three separate violations of Ariz. Rev. Stat. § 32-1154(A)(17). Respondent entered into contracts while its license was suspended on October 4, 2023 (Complaint No. 2024-01290); June 8, 2023 (Complaint No 2024-03711); and August 25, 2023 (Complaint No, 2024-04795).
The substantial length of Respondent’s suspension, Respondent’s pattern of continuing to contract without a license, its failure to establish a qualifying party, and its failure to pay complainant $14,162.65 all jeopardize public safety and welfare.
Therefore, the evidence established that the Registrar has met its burden to support revocation of Respondent’s license pursuant to Ariz. Rev. Stat. § 32-1154(B)(3) and (A)(17).
RECOMMENDED ORDER
In light of the foregoing,
IT IS RECOMMENDED that the Registrar permanently revoke Respondent’s License No. 320432 issued on June 8, 2018.
Pursuant to A.R.S. § 41-1092.08(I), the licensee may accept the Administrative Law Judge Decision by advising the Office of Administrative Hearings in writing not more than ten (10) days after receiving the decision. If the licensee accepts the Administrative Law Judge Decision, the decision shall be certified as the final decision by the Office of Administrative Hearings.
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.
Done this day, August 13, 2024.
/s/ Amy M. Haley
Administrative Law Judge
Transmitted by either mail, e-mail, or facsimile to:
Tom Cole, Director
Registrar of Contractors
By: OAH Staff