ALJDEC - Licensing

2024A-11203-OMC-LS-ROC · Registrar of Contractors · 2025-01-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Arizona Registrar of Contractors,

COMPLAINANT,

v.

Pinnacle Builders LLC

ROC License No. 312965,

RESPONDENT.

No. 2024A-11203-OMC-LS-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: January 14, 2025 at 9:00 AM.

APPEARANCES: Mona Baskin, Esq., Assistant Attorney General appeared on behalf of the Arizona Registrar of Contractors (“Complainant” and “Registrar”) with Margaret Lindsey, Esq. as a witness. No appearance(s) by or on behalf of Pinnacle Builders LLC (“Respondent”).

ADMINISTRATIVE LAW JUDGE: Jenna Clark.

EXHIBITS ADMITTED INTO EVIDENCE: Complainant Exhibits 1-11, including Exhibits 1-9 attached to the Complaint and Notice of Hearing for Termination of Qualifying Party Exemption (“Complaint”), were admitted into the evidentiary record.

_____________________________________________________________________

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 Arizona Administrative Code (“Ariz. Admin. Code”) R4-9-117, Administrative Notice is taken of Respondent’s license files as shown on the Registrar’s public website. On April 17, 2017, Respondent was issued ROC License No. 312965 for General Residential B contracting. Although renewed through April 30, 2025, the license was suspended by the Registrar on December 16, 2024, for lack of bond. Ben Warner is listed on the license as its Manager. Respondent’s address of record for the license is 12950 E. Shire Way Prescott Valley, AZ 86315. The license has been disciplined on four (4) prior occasions, and there have been six (6) complaints settled or otherwise resolved against the license. Currently, there are six (6) open complaints against the license, which are presumed to be related to this matter.

Since receiving its Qualifying Party exemption, ROC License No. 312965 has been disciplined by the Registrar for violating Ariz. Rev. Stat. § 32-1154 in the following cases:

Case No. 2023-12495 Jose Villafana v. Pinnacle Builders LLC

On June 06, 2024, the Office of Administrative Hearings (“OAH”) issued a Certification of Decision of Administrative Law Judge, finding Respondent in violation of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22), and suspended ROC License No. 312965 for five (5) days.

Case No. 2023-11572 Steve Ruttenberg v. Pinnacle Builders LLC

On June 06, 2024, the Office of Administrative Hearings issued a Certification of Decision of Administrative Law Judge, finding Respondent in violation of Ariz. Rev. Stat. §§ 32-1154(A)(3); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22), and suspended ROC License No. 312965 for two (2) days.

Case No. 2023-13964 Janie James- High v. Pinnacle Builders LLC

On September 20, 2024, the Registrar issued a Final Administrative Decision and Order, finding Respondent in violation of Ariz. Rev. Stat. § 32-11543); Ariz. Admin. Code R4-9-108(a), and 32-1154(A)(22), and suspended ROC License No. 312965 for four (4) days.

Case No. 2024-04973 Western Truss and Components C/O Reich Tevis v. Pinnacle Builders LLC

On October 03, 2024, the Registrar issued a Final Administrative Decision and Order, finding Respondent in violation of Ariz. Rev. Stat. § 32-1154(A)(10) and ordered that ROC License No. 312965 be suspended for ninety (90) days from the effective date of the final order until Respondent provided the Registrar with sufficient proof that it tendered $123,113.00 to Complaint as restitution.

Case No. 2024-06387 B & W Fire Security Systems LLC v. Pinnacle Builders LLC

On October 16, 2024, the Registrar issued a Final Administrative Decision and Order, finding Respondent in violation of Ariz. Rev. Stat. § 32-1154(A)(10) and ordered that ROC License No. 312965 be suspended until Respondent provided the Registrar with sufficient proof that it tendered $3,393.00 to Complaint as restitution.

On November 20, 2024, the matter was referred to OAH, an independent state agency, to hold an administrative hearing to determine whether Respondent’s foregoing violations of Ariz. Rev. Stat. § 32-1154 warrant termination of Respondent’s Qualifying Party Exemption based on an alleged violation(s) of the following:

Charge 1: Ariz. Rev. Stat. § 32-1125(E) –

a licensee that is exempt from the requirement for a qualifying party pursuant to subsection C of this section may be required by the registrar after a hearing to obtain a qualifying party within sixty days on a finding that:

(2) a violation of section 32-1154 has occurred.

On December 02, 2024, the Registrar issued a Citation and Notice of Hearing for Termination of Qualifying Party Exemption (“Citation and Notice of Hearing”) regarding OAH’s scheduled adjudication of the aforementioned charge. Correspondence was not returned as undeliverable to Respondent.

On December 16, 2024, OAH issued a Hearing Order to the parties that provided remote participation information, including a Google Meet videoconferencing web link and teleconference number with PIN code. Correspondence was not returned as undeliverable to Respondent.

Although afforded a ten minute grace period, Respondent did not appear on his own behalf, through an authorized officer, employee, or attorney, and did not contact OAH to request that the start of the hearing be further delayed or continued, or request permission to appear via alternative means. Consequently, Respondent did not present any evidence to defend the allegation(s) against ROC License No. 312965.

Hearing Evidence

The Registrar called Margaret Lindsey, Esq. as a witness. The substantive evidence of record is as follows:

Ms. Lindsey serves as the Registrar’s Assistant General Counsel.

Ms. Lindsey testified that Respondent did not appeal or request rehearing for decisions issued in Case Nos. 2023-12495, 2023-11572, 2023-13964, 2024-04973, and/or 2024-06387.

Regarding Case No. 2024-04973, Ms. Lindsey testified that Respondent never provided evidence to the Registrar that it had paid the $123,113.00 in restitution ordered.

Regarding Case No. 2024-06387, Ms. Lindsey testified that Respondent never provided evidence to the Registrar that it had paid the $3,393.00 in restitution ordered.

Ms. Lindsey testified that if held in violation of Ariz. Rev. Stat. § 32-1125(E)(2), Respondent would be required by the Registrar to obtain a Qualifying Party within sixty (60) days of a finding that a one or more violations of Ariz. Rev. Stat. § 32-1154 were committed by Respondent.

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction, and was properly brought before OAH.

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

The Citation and Notice of Hearing the Registrar mailed to Respondent’s address of record is sufficient, and Respondent is deemed to have received notice of the hearing in this matter. Because the Registrar mailed all correspondence to Respondent in the same manner and failed to receive any mail returned as undeliverable, Respondent is deemed to have received all correspondence regarding this matter from the Registrar as well.

The Registrar bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence. Respondent bears the burden to establish factors in mitigation of the penalty and affirmative defenses by the same evidentiary standard.

“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.”

Statutes shall be liberally construed to affect their objects and to promote justice. Statutes should be interpreted to provide a fair and sensible result.

Ariz. Rev. Stat. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.”

Ariz. Admin. Code R4-9-108(a) requires that “[a] contractor shall perform all work in a professional and workmanlike manner.”

Ariz. Rev. Stat. § 32-1125(E)(2) provides, in pertinent part, that a licensee exempt from the requirement for a Qualifying Party may be required by the Registrar to obtain one within sixty days, after a hearing on a finding that a violation of section 32-1154 has occurred.

Here, the Registrar takes the position that Respondent should be made to obtain a Qualifying Party pursuant to Ariz. Rev. Stat. § 32-1125(E)(2), due to its multiple violations of Ariz. Rev. Stat. § 32-1154(A)(3). The Tribunal is in complete agreement.

The substantive evidence in this matter is clear and undisputed.

The record reflects that the Registrar imposed disciplinary action against Respondent’s contracting license no less than five (5) times between June 06, 2024, and October 16, 2024, for violating Ariz. Rev. Stat. § 32-1154(A)(3). The record also reflects that Respondent never appealed any of the decisions or impositions of disciplinary action. The record further reflects that although ordered to pay $126,506.00 in restitution, Respondent has failed to provide the Registrar with an indicia of evidence to support a conclusion that either Complainant owed received their payment.

The only remaining issues are whether Respondent raised a sufficient justification or excuse for its conduct or offered any evidence in mitigation of the Registrar’s proposed action. These are affirmative defenses that Respondent bears the burden to establish. In failing to appear for the duly noticed hearing, Respondent failed to provide evidence in mitigation, refute the Registrar’s evidence, or justify its actions in this matter. Thus, Respondent’s burden has not been sustained. Notably, Respondent’s absence from this administrative proceeding is also a factor in aggravation, as it evinces the licensee’s unwillingness to be regulated by the Registrar.

Because the Registrar has unquestionably established Respondent’s violations of Ariz. Rev. Stat. § 32-1154(A)(3), it has also established grounds to compel Respondent to obtain a Qualifying Party for ROC License No. 312965 pursuant to authority outlined in Ariz. Rev. Stat. § 32-1125(E)(2).

RECOMMENDED ORDER

In light of the foregoing,

IT IS RECOMMENDED that five days after the effective date of the Final Order in this matter Respondent Pinnacle Builders LLC, ROC License No. 312965, be required to obtain a Qualifying Party within sixty (60) days, in accordance with Ariz. Rev. Stat. § 32-1125(E)(2).

NOTICE

Pursuant to Ariz. Rev. Stat. § 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, January 30, 2025.

Office of Administrative Hearings

/s/ Jenna Clark

Administrative Law Judge

Transmitted by either mail, e-mail, or facsimile to:

Tom Cole, Director

c/o Legal Department

Registrar of Contractors, Complainant

1700 W. Washington St., Ste. 105

Phoenix, AZ 85007

[email redacted]

Charles Hover III, Esq., Assistant Attorney General

Office of the Attorney General, Counsel for Complainant

2005 N. Central Ave.

Phoenix, AZ 85004

[email redacted]

Pinnacle Builders LLC, Respondent

12950 E. Shire Way

Prescott Valley, AZ 86315

[email redacted]

By: OAH Staff