ALJDEC

99F-X0011-ROC · Registrar of Contractors · 1999-01-28

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 28, 1999. APPEARANCES: Daniel J. Oehler appeared representing Interstate Utility Service, Inc., Respondent. Montgomery Lee, Assistant Attorney General, appeared representing the Registrar of Contractors (“Registrar”).

ADMINISTRATIVE LAW JUDGE: Kip M. Micuda _____________________________________________________________________ The hearing in this matter was held for the purpose of determining whether the Registrar is justified in taking disciplinary action against Interstate Utility Service, Inc. Evidence and testimony were presented and, based upon the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Decision are made:

FINDINGS OF FACT 1. Interstate Utility Service, Inc. (“I.S.U.”), Respondent, is holder of a Class A-16 license, No. 081515, issued by the Registrar on or about January 1, 1989. Donald Glen McMurray is the Qualifying Party on the license. 2. On or about February 9, 1988, the Registrar issued Specialty Contractors, Inc. (“Specialty Contractors”), a Class A license, No. 075442. Robert Jackson Adams is the Qualifying Party on the license. 3. On March 17, 1998, the Registrar revoked Specialty Contractors’ Class A license, pursuant to a Decision and Order in Case Nos. H98-0067 and H98-0040. Information in the Registrar’s records at the time indicated that Mr. McMurray appeared as Specialty Contractors’ Secretary on its contractor’s license. Accordingly, the Registrar filed the instant Complaint against Mr. McMurray for violating state law prohibiting one who appears on a revoked license from appearing on any other license issued by the Registrar. 4. During the hearing in this matter, Mr. McMurray testified that Mr. Adams approached him in 1994, asking him to serve as Secretary, temporarily, for Specialty Contractors, in light of the untimely death of the company’s former Secretary. Mr. McMurray agreed to serve as Secretary temporarily. Mr. McMurray emphasized in his testimony, however, that he never signed anything on behalf of Specialty Contractors, never received any type of remuneration, never attended any meetings, and that he never actually served Specialty Contractors in any capacity. Indeed, Mr. McMurray offered compelling evidence from the Arizona Corporation Commission that he was never officially designated as Secretary of Specialty Contractors. 5. Nevertheless, the preponderance of the evidence establishes that Mr. McMurray has appeared on contractor licenses issued by the Registrar for a number of years, and realizes his responsibility for knowing and understanding state law as it relates to contracting. The preponderance of the evidence establishes also that Mr. McMurray agreed to serve as Secretary of Specialty Contractors, and that he either knew or believed that he was, in fact, the Secretary of Specialty Contractors between 1994 and September of 1998. Finally, the preponderance of the evidence reveals that the Registrar has in its records information naming Mr. McMurray as a principal of Specialty Contractors. Based on the foregoing facts, Mr. McMurray should have reasonably expected that his name would appear on Specialty Contractors’ license; by agreeing to act as Secretary for Specialty Contractors, Mr. McMurray agreed to accept the role of a principal of the company, exposing himself to the duties, responsibilities, and obligations inherent in that role. 6. Though Mr. McMurray failed, until recently, to determine the nature of his relationship with Specialty Contractors, as represented to all by Specialty Contractors, the record is void of any evidence that Mr. McMurray actually knew that he was named on Specialty Contractors’ license or that he did anything directly to authorize his name being placed on the license.

. . .

APPLICABLE LAW Arizona Revised Statutes (“A.R.S.”) §32-1154(A) provides, in relevant part, that a holder of a license or a person listed on a license shall not commit the following: 21. Having a person named on the license who is named on any other license in this state or in another state which is under suspension or revocation unless the prior revocation was based solely on a violation of this paragraph.

CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over this matter, pursuant to §32- 1104(A). 2. The Registrar has the burden of demonstrating by a preponderance of the evidence that it may take disciplinary action against Respondent. Cf. Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). Proof by “preponderance of the evidence” means that the evidence is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 3. With respect to Respondent’s alleged violation of A.R.S. §32- 1154(A)(21) for having Mr. McMurray named on its license when he is named on another license that is revoked, the Registrar narrowly sustains its burden of demonstrating a technical violation of State law. Nevertheless, the record reveals noteworthy, mitigating circumstances, in that Mr. McMurray did not actively engage himself with Specialty Contractors in any capacity, he did not specifically authorize himself being named on its license, and the record reveals no other basis for any relationship between Respondent and Specialty Contractors.

RECOMMENDED DECISION In view of the foregoing, it is recommended to the Director that he asses against Respondent’s Class A-16 license, No. 110384, a civil penalty in the amount of $100.00. As stated above, the Registrar narrowly sustains its burden of demonstrating a technical violation of state law; in other words, the case is thin. Notwithstanding the technical violation, Mr. McMurray’s conduct is, perhaps, best characterized as being less than diligent. His failure, in the context of the facts of this matter, falls far short of conduct compelling more serious discipline than a nominal civil penalty. Done this day, February 16, 1999.

_________________________________ Kip M. Micuda Administrative Law Judge

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

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

Office of Administrative Hearings 1700 West Washington, Suite 602 Phoenix, Arizona 85007 (602) 542-9826