Kim v. Contractors License Board

965 P.2d 806, 88 Haw. 264, 1998 Haw. LEXIS 413
CourtHawaii Supreme Court
DecidedOctober 28, 1998
Docket21152
StatusPublished
Cited by14 cases

This text of 965 P.2d 806 (Kim v. Contractors License Board) is published on Counsel Stack Legal Research, covering Hawaii Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kim v. Contractors License Board, 965 P.2d 806, 88 Haw. 264, 1998 Haw. LEXIS 413 (haw 1998).

Opinion

RAMIL, Justice.

Appellants-appellants Harry Kim, Jr. and H K Builders, Inc. appeal the First Circuit Court’s orders affirming Appellee-appellee Contractors License Board’s final decision suspending Appellants’ licenses for six months and fining them, jointly and severally, $2,000.00. Appellants argue that the circuit court erred (1) in applying the “clearly erroneous standard of review to the issue of statutory construction” and (2) concluding that Hawaii Revised Statutes (HRS) § 444-17(10) (1993) 1 does not require intent.

First, Appellants misread the circuit court’s decision, rendering their first point on appeal meritless. Second, although the circuit court correctly concluded that HRS § 444-17(10) does not require intent, we affirm for different reasons.

I. BACKGROUND

On May 29, 1992, Harry Kim applied for a contractor’s license from the Contractors License Board (Board). Although all of his answers were correct, Kim did not pass all parts of the examination. On December 30, 1992, Kim applied again. He simply photocopied the first application and changed only the answer to the question regarding previ-ous applications. Kim, again, did not pass all parts of the examination.

On September 20, 1993, Kim applied a third time. H K Builders also applied for a license. Kim again photocopied his application. Kim, who also applied as the Responsible Managing Employee for H K Builders, testified that he did not read the applications before signing or submitting them.

The application conspicuously provides at the top of the first page: “Each applicable question must be fully and truthfully answered. Any material misrepresentation is grounds for refusal or subsequent revocation of license.” At its end, immediately above the signature line, the application repeats the previous statement and further provides: “The undersigned hereby apply for license pursuant to the provisions of Chapter 444, Hawai[’]i Revised Statutes and vouch for the truth and accuracy of all statements, answers and representations made in this application, including all supplementary statements hereto attached.” (Emphasis added.)

The Regulated Industries Division of the Department of Commerce and Consumer Affairs petitioned for disciplinary action against Kim and H K Builders on February 15,1995, for violations of HRS Chapters 436B 2 and 444. On April 8, 1996, the hearings officer found and concluded in pertinent part:

1. Respondent Kim was licensed as a contractor by the Contractor’s License Board (“Board”) on January 25, 1994, Li *267 cense No. CT 18771. Respondent Kim holds a license in the “B” classification, and is the Responsible Managing Employee (“RME”) of Respondent H K Builders.
2. H K Builders was licensed as a contractor by the Board on January 25, 1994, License CT 18770. Respondent H K Builders holds a license in the “B” classification.
3. From May 1990 to approximately September 1993, Respondent Kim was the president and supervisor of Land Data & Research Corporation (“Land Data”) License No. CT 15991.
4. On May 29, 1992, Respondent Kim submitted an Application for Contractor’s License (“Application”) for the purpose of becoming the RME of Land Data....
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8. On June 24, 1993, Land Data filed a Voluntary Petition under Chapter 11 of the Bankruptcy Code with the U.S. Bankruptcy Court for the District of Hawaii. Respondent Kim signed the Voluntary Petition on behalf of L,and Data. The Final Decree was filed on May 12,1995.
9. On September 20, 1993, Respondent Kim submitted an Application for the purpose of becoming the RME for Respondent H K Builders.
10. On September 20, 1993, Respondent H K Builders submitted an Application. The Application was signed by Angie Kim, its President/Treasurer/Seeretary, and Respondent Kim, as its RME.
11. In each of the Applications submitted on September 20, 1993, Respondents Kim and H K Builders answered “No,” to the following questions:
7. Are there now any unpaid past due bills or claims for labor, materials, or services, outstanding and unsatisfied, as a result of the operations of any person listed under “Personnel of Applicant” or any construction organization in which any such person was a member of the personnel?
9. Has any person listed under “Personnel of Applicant” or has any construction organization in which any such person was a member of the personnel ever been adjudicated as bankrupt; or is any person listed under “Personnel of Applicant” or any construction organization in which any such person is a member of the personnel, presently in the process of bankruptcy proceedings?
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13. In the event that an applicant for a contractor’s license answers “Yes” to the questions set forth in paragraph 11 above, the Board will conduct a farther review of the application. Based on the information supplied by the applicant, the Board may request that the applicant appear before the Board to provide additional information about the unpaid bills or bankruptcy proceedings. If the Board has concerns about the applicant’s qualifications, the Board may issue a conditional license or even deny the issuance of a license.
14. Respondent Kim testified that he “just signed” the second and third applications without reviewing them carefully, and that he had no intent to deceive the Board or anyone else.
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III. CONCLUSIONS OF LAW
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There is no dispute that Respondents’ answers to questions 7 and 9 of their September 20, 1993 Applications were incorrect. Based on evidence presented, the Hearings Officer finds that Respondents did not intend to deceive the Board. However, the Hearings Officer finds that Respondents were careless and negligent in not ensuring that all the answers were accurate. The issue to be determined is whether Respondent’s conduct constituted misrepresentation, in violation of HRS §§ 4.36B-19(5) and m-17(10). Petitioner argued that Respondents’ false statements, without a showing of an intent to deceive, constituted misrepresentation. Respondents argued that an intent to deceive must be an element of misrepresentation.
In In the Matter of the Real Estate Broker’s License of Marilyn S. Knutson, dba Knutson & Associates,

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965 P.2d 806, 88 Haw. 264, 1998 Haw. LEXIS 413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kim-v-contractors-license-board-haw-1998.