ALJDEC

99F-X0021-ROC · Registrar of Contractors · 1999-01-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 22, 1999; 1:45 P.M.; Phoenix, Arizona APPEARANCES: Complainant: Patti J. Shelton, Esq., Assistant Attorney General Respondent: No Appearance ADMINISTRATIVE LAW JUDGE: George A. Schade, Jr.

Based upon the evidence presented at the hearing, Administrative Law Judge George A. Schade, Jr. submits this Recommended Decision and Order to the Arizona Registrar of Contractors (“Registrar”). FINDINGS OF FACT PROCEDURAL HISTORY AND FACTS 1. On October 21, 1998, the Registrar issued a Citation and Complaint to J. Doyle Electrical Contracting (“Doyle”) alleging violations of Arizona Revised Statutes (“A.R.S.”) §§ 32-1154(A)(3), namely, Rule R4-9-108, Ariz. Admin. Code; 32-1154 (A)(10); 32-1154(A)(13); 32-1154(A)(14); 32- 1154(A)(15); and, 32-1154(A)(20). 2. On November 4, 1998, Doyle filed an answer to the citation and complaint. 3. On December 18, 1998, the Registrar issued a Notice of Hearing. Under the authority of A.R.S. § 41-1092.02, the hearing was assigned to the Office of Administrative Hearings. 4. The Registrar sent Doyle a copy of the Notice of Hearing by certified mail, return receipt requested, at Doyle’s last known address. There is no evidence showing that Doyle did not receive this copy. 5. On January 22, 1998, a hearing was held. Doyle did not attend the hearing. The start of the hearing was delayed fifteen minutes to give Doyle or its representatives additional time to travel, but no appearance was made. The Registrar presented the testimony of investigator Irl Young and nine documentary exhibits. 6. On January 22, 1999, after the conclusion of the hearing, the Office of Administrative Hearings received a letter from Mr. John R. Doyle, the qualifying party of all three licenses and the owner of Doyle. A copy of this letter was sent to Ms. Shelton. Mr. Doyle stated his family had moved to Missouri, and he was financially unable to travel to Arizona for the hearing. The letter included a copy of Doyle’s answer to the citation and complaint and four letters of reference testifying to Doyle’s prior work. The Administrative Law Judge considered only Doyle’s answer, as the hearing had concluded, and Mrs. Shelton did not have the opportunity to cross-examine the writers. THE ALLEGATIONS 6. Paragraphs No. 1 through 18 of the Registrar’s Citation and Complaint are adopted and are incorporated by reference. 7. In Doyle’s answer to the citation and complaint, Mr. John R. Doyle stated in pertinent part: “We have received your letter dated 10-19-98. As per our phone conversation on Sept. 30, 1998, we have admitted to the counts as described in your complaint.” Official notice was taken of this letter.

8. Doyle’s only reason for having engaged in the actions or omissions described in the citation and complaint was ignorance of the licensing requisites for contractors. 9. The Registrar provides a copy of its statutes and rules to all licensed contractors. 10. There is no evidence showing that Doyle has ceased doing business as an Arizona limited liability corporation. 11. Doyle’s three licenses are currently active. License No. 055047, Class C-11, was issued on August 4, 1981. This license was renewed in July, 1998. License No. 088215, Class L-11, was issued on November 8, 1990. This license was renewed in October, 1998. License No. 095005, Class A-17, was issued on October 5, 1992. This license was renewed in September, 1998. CONCLUSIONS OF LAW A.R.S. § 32-1154 AND REGISTRAR’S RULE R4-9-108 The issues are did Doyle violate the statutory provisions of A.R.S. § 32-1154 for which it was cited? A.R.S. § 32-1154(A) provides in the pertinent subsections: “A. 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: *** 3. Violation of any rule adopted by the registrar. *** 10. Aiding or abetting an unlicensed person to evade the provisions of this chapter, knowingly combining or conspiring with an unlicensed person, allowing one's license to be used by an unlicensed person or acting as agent, partner, associate or otherwise of an unlicensed person with intent to evade provisions of this chapter. *** 13. Failure in any material respect to comply with the provisions of this chapter.

14. Knowingly entering into a contract with a contractor for work to be performed for which a license is required with a person not duly licensed in the required classification.

15. Acting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license. *** 20. Subsequent discovery of facts which if known at the time of issuance of a license or the renewal of a license would have been grounds to deny the issuance or renewal of a license.“

CONCLUSIONS OF LAW 1. The evidence establishes Doyle violated A.R.S. § 32-1154(A)(3), namely, Rules R4-9-109(A) and (D) and R4-9-110(A), Ariz. Admin. Code. 2. The evidence establishes Doyle violated A.R.S. §§ 32-1154(A)(10); 32-1154(A)(13); 32-1154(A)(14); and, 32-1154(A)(15). 3. Two of Doyle’s licenses were renewed in September and October, 1998, at a time when the Registrar had knowledge of the facts which led to the issuance of the citation and complaint on October 21, 1998. It strikes as unfair and shows marginal attention to administrative due process to renew two licenses and immediately cite to revoke the licenses for disciplinary reasons. It cannot be concluded that Doyle violated A.R.S. § 32-1154(A)(20). 4. The Registrar seeks to revoke Doyle’s licenses. Revocation is a severe licensing sanction as it affects the pursuit of a professional livelihood, and therefore, must be carefully considered before it is imposed. Doyle has held these licenses for several years, one since 1981. On the other hand, Doyle should be expected to have known that its hiring of an unlicensed contractor to do the work in this case was unlawful. Considering all the equities, the Administrative Law Judge concludes that a lengthy suspension is more appropriate than revocation. RECOMMENDED ORDER It is recommended that the Registrar suspend Doyle’s Licenses No. 055047, Class C-11; License No. 088215, Class L-11; and, License No. 095005, Class A-17, for a period of one year each. SUBMITTED this 25th day of January, 1999.

George A. Schade, Jr. Administrative Law Judge

The original Recommended Decision and Order was mailed on January 25, 1999, for distribution to the parties, to:

Michael P. Goldwater, Director Arizona Registrar of Contractors 800 West Washington, 6th Floor Phoenix, Arizona 85007-2940

George A. Schade, Jr. -----------------------

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