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3. This action is based upon Division records which show that Respondent,
I engaged in unlawful conduct by: hiring at least 225 unlicensed individuals and/or entities to
perform work which requires a license in violation of Utah Code § 58-55-501(3).
4. In particular, the evidence in the Division's file indicates that Respondent has
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engaged in the following conduct:
5. Respondent is, and at all times relevant to this proceeding, licensed to practice
as a contractor. Respondent initially became so licensed on or about September 16, 2016
with the following license classifications: General Drywall and Plastering Contractor (S270);
Carpentry Contractor (S220); and Steel Erection Contractor (S320). Francisco Marquez Jr is
Respondent’s qualifier.
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15. None of the 225 individuals and/or entities paid as reported on the 1099 Forms
for 2017 as noted above have a contractor license in the State of Utah.
17. On May 9,2019, the Division issued Notice of Agency Action with respect to
the above allegations.
19. In the response. Respondent admits that it hired the unlicensed workers but
alleges that Respondent’s owners are “young,” thought they hired employees and not
independent contractors, and alleges there was no intent to violate Utah law.
20. Respondent alleges that “Respondent believed in fact that the individuals that it
had hired to perform work were employees who received wages under Utah Code.
Respondent fiilly believed that he was operating correctly. Unbeknownst to Respondent, the
accountant paid the employees as independent contractors instead of employees....Based on
these facts. Respondent did not have any intent to violate the law; nor did he act recklessly.”
21. Respondent’s entire response is based on the allegation that Respondent did
hire unlicensed workers but did not have the intent to violate Utah law and acted in good
faith. Respondent alleges that “DOPL must prove that the contractor intended to engage in
unlawful conduct, knowingly engaged in unlawful conduct, or reckless engaged in unlawful
conduct” unless it involves strict liability^ and alleges “[tjhere is no basis in law for fact to
hold Respondent strictly liable” and cites to the tqcqxA Muddy Boys v. DOPL, 2019 UT App
33 case as similar.^
' Respondent’s response to the Notice of Agency Action was styled Requestfor Review ofAgency Action to
Revoke Contractor’s License and Impose Fine. However, it was unclear whether this was a response to the
Notice of Agency Action or a Request for Agency Review pursuant to the Utah Administrative Procedures Act.
On June 13,2019, Respondent communicated to the Division that this was a response to the Notice of Agency
Action and not a request for agency review.
^ Utah criminal law provides an exception to the general rule requiring proof of a necessary mental state. See
Utah Code § 76-2-101. Certain offenses have been defined under Utah criminal law as requiring only proof of
the prohibited conduct, without regard to the defendanfs intent or state of mind. Such offenses are referred to
as "strict liability" offenses.
^ DOPL V. Muddy Boys, Case No DOPL-2015-605, is an unrelated matter where allegations of unlicensed
hiring were alleged against Muddy Boys. During the proceeding, the matter was dismissed with prejudice as
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22. However, Respondent fails to cite to one important historical point. After the
Muddy Boys case was dismissed at the administrative level, the Utah Legislature changed the
statute and clearly articulated its intent that violations of any unlawful or unprofessional
conduct provisions are strict liability violations. To wit:
Utah Code § 5 8-1 -501 (3) (emphasis added). This instant matter concerning Respondent is an
administrative proceeding commenced by the Division under Title 58 as constituted by the
Notice of Agency Action and alleges unlawful conduct violations under Title 58 for hiring
unlicensed workers. As a result. Respondent is “strictly liable for each violation” of Utah
Code § 58-55-501(3) and no proof of intent is required by the Division.
23. In its response. Respondent does not request a hearing and does not provide
any other defense or argument to contest the allegations as set forth in the Notice of Agency
Action. Additionally, Respondent does not challenge any of the factual allegations set forth
in the Notice of Agency Action and merely argues as a matter of law.
25. The Notice of Agency Action provides a basis to conclude that Respondent has
hired 225 unlicensed individuals and/or entities in violation of Utah Code § 58-55-501(3), for
engaging in unprofessional conduct.
stipulated by the parties at the formal administrative level and the only matter on appeal in Muddy Boys v.
DOPL, 2019 UT App 33 was whether Muddy Boys was entitled to attorney fees, which the appellate court
rejected and denied. As a result, there is no controlling authority that can be asserted from the underlying
administrative case other than parties before the Division that obtain a dismissal on an agency action are not
entitled to an award of attorney fees. To read otherwise is misreading the actual holdings.
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ORDER
NOTICE: Agency review of this order may be obtained by filing a written request for agency
review with the Executive Director of the Department of Commerce within thirty (30) days
after the issuance of this order. Any such request must comply with the requirements of Utah
Code § 63G-4-301 and Utah Admin. Code R151-4-902.
On behalf of the Construction Services Commission and the Division of Occupational and
Professional Licensing, I hereby certify that the foregoing Findings of Fact, Conclusions of
Law, and Order were submitted to the Construction Services Commission and the Division
on the 26th day of JUNE 2019, for their review and action.
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ORDER
in the matter of N.G.F. LLC., are hereby adopted by the Construction Services
Representative
I concur with the above Order, which the Construction Services Commission has
approved.
MARKB. STEINAGEL
Director or
DEBORAH BLACKBURN
Director’s Designee