ALJDEC decisions subject to certification as final

07F-1209-ROC · Registrar of Contractors · 2008-03-10

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 11, 2007 and February 26, 2008 APPEARANCES: Complainant: Bruce J. Hancock appeared at the October 11, 2007 hearing, pro per. Complainant failed to appear at the February 26, 2008 further hearing. Respondent: Andrew Smith, corporate officer and qualifying party, appeared at the October 11, 2007 hearing and was represented by counsel, Randi S. Sirlin. Mr. Smith appeared at the February 26, 2008 hearing, pro per. ADMINISTRATIVE LAW JUDGE: Brian E. Smith _____________________________________________________________________ Evidence and testimony were presented and, based on the entire record in this matter, the following Findings of Fact, Conclusions of Law and Recommended Order are made:

FINDINGS OF FACT 1. The hearing in this matter first convened at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated September 10, 2007. The parties did not conclude the presentation of evidence at that time and the matter was scheduled for further hearing on February 26, 2008 pursuant to this tribunal’s November 14, 2008 Order Re: Further Hearing Date. 2. Although the start of the further hearing on February 26, 2008 was delayed over fifteen (15) minutes to afford time in which to make an appearance, Complainant did not appear either personally or through any authorized representative or counsel at the further hearing.[1] 3. Complainant Bruce J. Hancock (“Complainant”) is the owner of a residence located at 1533 W. Roma Ave., Phoenix, Arizona (“premises/project”). 4. Respondent Troy Builders, Inc. (“Respondent”) is a corporation which holds Arizona Contractor’s License No. 183849, Class B (General Residential) issued by the Registrar of Contractors (“ROC”) March 24, 2003. Andrew Troy Smith (“Smith”) is a corporate officer and the qualifying party for the license. A review of the licensing database maintained by the ROC indicates that this license was suspended February 22 through April 24, 2007 for lack of bond. 5. Complainant filed a complaint with the ROC on November 27, 2006 wherein he alleged, by reference to a letter attached as part of paragraph of the complaint, inter alia, that Respondent and/or its representatives had “wrongfully took [$177,000.00 of [Complainant’s] property without [his] knowledge or consent and disposed of it for their gain.”[2] 6. On December 20, 2006, Complainant filed a request for hearing. 7. On May 31, 2007, the Registrar issued a CITATION AND COMPLAINT in Case No. 07-1209 charging Respondent with possible violations of A.R.S. §32- 1154A 7. 8. Respondent, by and through counsel, filed an answer on June 15, 2007 wherein it alleged, inter alia, a general denial of all allegations asserted by Complainant. 9. At the initial hearing on October 11, 2007, Complainant submitted Exhibits A and C through G which were marked, admitted and considered. Michael Duncan (“Duncan”), Peter Smith (“P. Smith”) and Jeff Crowell (“Crowell”) were called to testify by Complainant. Complainant did not testify at the first hearing date. 10. Smith appeared and testified on behalf of Respondent at the February 26, 2008 further hearing date. Smith submitted Exhibits 2, 3, 5, 9, 15, 21, 22, and 47 which were marked, admitted and considered. Tim Evans (“Evans”) also testified on behalf of Respondent. 11. From the evidence elicited at the hearing, the following facts are important to note: a. On or about August 15, 2006, Complainant’s residence was destroyed by fire. b. The subject fire resulted in Complainant’s residence and its contents being declared a total loss by his insurance company, American Family. c. On or about August 15, 2006, Respondent erected a chain link fence around the premises as a deterrent to theft and safety precaution. d. Subsequently, Respondent performed an unspecified amount of fire demolition and re-construction work on the premises. e. Crowell, property claims adjuster for American Family Insurance, testified that he did not believe Complainant’s property after the fire was worth $177,000.00 or any where close to that amount. Crowell further testified that it was his opinion that it would cost $138,521.99 to demolish and rebuild the premises. f. Smith testified that the contract entered into between the parties was to rebuild project and not just for erection of the chain link fence. Smith further testified that Respondent erected the subject fence and performed approximately $45,000.00 worth of demolition and reconstruction work for Complainant the costs for which Respondent advanced and was paid nothing by Complainant therefor.

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. 07-1209 charged Respondent with possible violations of A.R.S. §32- 1154A 7. That statutory section requires that the holder of a license or person listed on the license shall not commit the following:

7. The doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.

CONCLUSIONS OF LAW 1. The Registrar of Contractors has jurisdiction over this matter pursuant to A.R.S. § 32-1101, et. seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154. 2. To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated any one, or more, of the statutory sections cited. Proof by a “preponderance” 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 (9th Cir. BAP (Ariz.) 1994). See also, Culpepper v. State of Arizona, 187 Ariz. 43, 930 P.2d 508 (App. 1996). 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. The purpose of licensing Arizona contractors is to regulate the conduct of contracting and protect the public from unscrupulous acts. Beazer Homes Ariz., Inc. v. Goldwater, 196 Ariz. 98, 101, 993 P.2d 1062, 1065 (App. 1999); Better Homes Constr. v. Goldwater, 203 Ariz. 295, 300, 53 P.3d 1139 (App. 2002). The statutory purpose is to prevent unscrupulous or financially irresponsible contractors from deceiving and taking advantage of those who engage them to build. Sobel v. Jones, 96 Ariz. 297, 394 P.2d 415 (1964). 4. This tribunal determines and concludes that Complainant failed to establish by a preponderance of credible, probative and relevant evidence that Respondent violated A.R.S. §32-1154A (7). …

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that the entire Citation and Complaint in Case No. 07-1209 be dismissed.[3] Done this day, March 10, 2008.

________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2008, to:

Registrar of Contractors Fidelis V. Garcia 3838 N. Central Ave., Ste. 400 Phoenix, AZ 85012-1906

By __________________________ ----------------------- [1] It must be noted that on February 21, 2008, this tribunal received an unsolicited copy of a correspondence from Complainant directed to attorney Johnny J. Sorenson, counsel for American Family Insurance, who was present at both hearings as counsel for American Family and its agent, Jeff Crowell. Therein, Complainant addresses, inter alia, a Subpoena Duces Tecum directed to Respondent and relates that “I am not aware of a date having been set to continue the hearing. The hearing dated you note in your letter of Tuesday, February 26, 2008 at 9:00 a.m. is an unlikely time.” Notwithstanding this tribunal’s November 14, 2007 Order Re: Further Hearing Date and Mr. Sorenson’s letter referenced by Complainant, Complainant never filed a motion to continue the February 26, 2008 further hearing nor did he contact the Office of Administrative Hearings to ascertain the status thereof. [2] The referenced property was that which remained after a fire occurred at Complainant’s residence. [3] In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order in this matter will be forty (40) days from the date of that certification.

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