ALJDEC

99F-D0011-ROC · Registrar of Contractors · 1999-09-10

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 10, 1999 APPEARANCES: Steven R. Palm, Owner and Qualifying Party for the corporate Applicant (Applicant) Patti Shelton, Assistant Attorney General, on behalf of the Registrar of Contractors (Registrar) ADMINISTRATIVE LAW JUDGE: Allen Reed _____________________________________________________________________ Findings Of Fact The Applicant who is not a licensed contractor has engaged in cleaning various concrete surfaces by pressure washing for the past four to five years. The Applicant has done work in the past and currently has a contract with the City of Phoenix for cleaning up graffiti. The Applicant has had no complaints against it with the Better Business Bureau. Sometime in 1998, the Applicant did some pressure washing at the home of a person identified as Willard Conger (Conger). In addition to cleaning, the Applicant also agreed to apply a concrete coating. The total cost of the project was $1,600.00. On or about August 14, 1998, Conger filed a complaint with the Registrar, against the Applicant, after a dispute arose over the cost and payment for the above cited work. On or about August 27, 1998, Inspector Rebillot of the Registrar’s Office issued a Cease and Desist Order to the Applicant. Rebillot also assessed a$600.00 civil penalty. The exact reason for the Cease and Desist Order was not a matter of evidence but the evidence suggests that Rebillot determined that the application of a coating to concrete requires a contractor’s (concrete coating) license. There is no evidence that a citation was ever issued to the Applicant on the Conger complaint. According to the Applicant, Rebillot verbally stated that the civil penalty would be reduced if the Applicant obtained a contractor’s license by March 31, 1999. Inspector Rebillot no longer works for the Registrar. On or about March 5, 1999, the civil penalty claim was sent to the Arizona Attorney General’s Office for collection. On April 8, 1999, the Attorney General’s office sent a collection letter to the Applicant for the claimed $600.00 civil penalty, plus any interest (A.G. File TAX 99-0707). On April 22, 1999, after three attempts, the Applicant passed his Contractor’s License Examination. The Applicant had been untimely with certain reports to the Arizona Corporation Commission (Commission), and the Applicant had to be reinstated by the Commission. On May 7, 1999, the Applicant was reinstated by the Commission. On May 28, 1999, the Applicant filed its application for a K-5 license (Concrete Coatings Dual) with the Registrar. On June 29, 1999, the Licensing section of the Registrar’s office denied the application asserting that the Applicant’s President and Qualifying Party, Steven Robert Palm (Palm), failed to establish good character and reputation, had engaged in contracting without a license, had committed a wrongful or fraudulent act and had failed to complete a construction project for the price stated. On July 19 ,1999, the Applicant filed its request for a hearing. . . . . . . . . . Conclusions Of Law A.R.S. §32-1122 provides in pertinent part under subsection (D), that to obtain a license a person shall be of good character and reputation and that lack of good character and reputation may be established by showing a person has committed an act which if committed by a licensed contractor would be grounds for suspension or revocation, and under subsection (E), that to obtain a license, a person shall not have engaged in contracting or submitted a bid without being licensed within one year prior to the person’s application. A.R.S. §32-1154(A)(7) and (9) provide in pertinent part that a contractors license may be suspended or revoked for under (A)(7), a licensee as a contractor doing a fraudulent or wrongful act with substantial injury to another, and under (A)(9), failure in a material respect to complete a construction project for the price stated in the contract. A.R.S. §41-1065 provides in pertinent part that in a hearing on the denial of a license or permit, the burden of proof is on the Applicant. A.R.S. §32-1166 (A) provides in pertinent part that: “…In conjunction with the cease and desist order, the registrar may issue a citation for violation. Each citation shall be in writing and shall clearly describe the violation for which the citation was issued. Each citation shall contain an order to cease and desist and an assessment of a civil penalty in the amount of at least two hundred dollars for each violation but no more than two thousand five hundred dollars for multiple violations committed on the same day.” No witnesses testified for the State and the only evidence presented regarding an alleged violation of subsection (A)(7) and (A)(9) was a computer printout showing Conger had made a complaint and Rebillot had issued a Cease and Desist Order. There is no evidence that a citation was ever issued or a hearing was ever held regarding the Conger matter. There was no evidence to show the nature of any wrongful or fraudulent conduct, nor of any substantial injury to another. There was no evidence that the Applicant had failed to complete the Conger project for the stated price. In light of the lack of any competent evidence, no lack of good character or reputation is shown under A.R.S. §32-1122(D). With respect to A.R.S. §32-1122(E), the Applicant acknowledged that it is not a licensed contractor. Based on the Attorney General’s inquiries with the Registrar’s office, the only evidence in the case is the computer printouts. There is no underlying documentation to support or sustain the allegations. Although the evidence showed there was a complaint made against the Applicant in August of 1998, there was no specific evidence of when any bid was submitted or any contract was entered so as to show it occurred within a year of the application which was filed on May 28, 1999. No citation was issued by the Registrar in conjunction with the Cease and Desist Order nor has there been a determination that the Applicant was contracting without a license within a year prior to the application, based on the Conger complaint. The issue of the $600.00 civil penalty which was assessed in the Conger matter is not directly before this Administrative Law Judge and although somewhat suspect, it merits no further discussion as to whether it was properly assessed. The Applicant bears the burden under the statute. However, the State must credibly establish the facts constituting the basis for denial of the application if said denial is to be supportable under the law. The only issues raised against the Applicant have been shown to be without a sound evidentiary basis and as a consequence, it is concluded that the denial for lack of good character and reputation is without merit and that the Applicant has made a satisfactory showing of its (his) good character and reputation. Recommended Order In view of the foregoing it is recommended that the denial of the application of Steven Robert Palm, dba All Economy Car Wash, Inc. be reversed and the application of Steven Robert Palm, dba All Economy Car Wash, Inc. for a K-5 contractor’s license be granted. Done this day, September 13, 1999.

______________________________________ ALLEN REED Administrative Law Judge

Original transmitted by mail this ____ day of September, 1999, to:

Michael P. Goldwater Registrar of Contractors ATTN: Joyce Armijo 800 West Washington, 6th Floor Phoenix, AZ 85007

By _______________________________

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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826