ALJDEC decisions subject to certification as final

07F-M0526-ROC · Registrar of Contractors · 2007-02-28

STATE OF ARIZONA IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 22, 2007 APPEARANCES: Complainant: Taylor Hansen appeared, pro per. Respondent: Respondent failed to appear either individually or by authorized representative or counsel. 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. This matter came for hearing at the time, date and place set forth in the Registrar of Contractors’ Notice of Hearing dated January 17, 2007. 2. At all times here relevant, Complainant was the owner/occupant of a residence located at 22835 S. 193rd St., Queen Creek, Arizona (“premises/project”). 3. Respondent Robert Allen Jeanneret (“Jeanneret”) is an individually doing business as R A Jeanneret (“Respondent”). Jeanneret holds and is the qualifying party for Arizona Contractor’s License No. 118227, Class B (General Residential) issued by the Registrar of Contractors (“ROC”) on October 11, 1996. A review of the licensing database maintained by the ROC indicates that this license was suspended September 9 through October 7, 2004 for lack of bond and October 1, 2006 for non-renewal. 4. Complainant filed a complaint with the ROC on August 28, 2006 wherein he alleged, inter alia, that “Contractor has shown incompetence in every trade with this project,…[which] has taken longer than the verbally stated ‘2 weeks to complete’ and is no where near completion.” 5. On October 20, 2006, the Registrar issued a CITATION AND COMPLAINT in Case M07-0526 charging Respondent with possible violations of A.R.S. §32-1154A 1 and 7. 6. Respondent filed an answer on October 25, 2006 wherein it asserted that due to the various infirmities its qualifying party, Robert A. Jeanneret (“R. Jeanneret”), is suffering from including, without limitation, a stroke, brain hemorrhage, high blood pressure and diabetes, his doctor has advised him to “discontinue any further work as a Contractor.” It was further asserted that “all of [Respondent’s] resources and assets have been depleted…[and he has] “no health, and no money or any way of gaining funds.” 7. At the hearing, Complainant credibly testified and submitted Exhibit A which was marked, admitted and considered. 8. Respondent failed to appear either personally or through any authorized representative or counsel. 9. On the testimony and evidence of record, the following salient uncontroverted facts were adduced at the hearing and are important to note: a. On or about July 17, 2006, Complainant contracted with a representative of Respondent, Sean Jeanneret (“S. Jeanneret”) for the construction of a gazebo and miscellaneous attendant items for a total price of $4,135.00. Work to be performed by Respondent included installation of greenboard drywall for the ceiling, lath and stucco around the gazebo, painting of the gazebo stucco and a pony wall and the pulling of electrical wiring for and the installation of BBQ outlets and a ceiling fan.[1] b. On July 24, 2006, Complainant paid Respondent $1,000.00 down upon the first order of building materials and provision of services (painting). c. On or about July 31, 2006, Complainant paid Respondent an additional $500.00 for materials. At this time the only work that had been performed by Respondent was painting of the pony wall and a small amount of lathing in preparation for the stucco on the gazebo. d. During the approximate four week period following execution of the contract, Complainant observed inconsistent attendance of Respondent’s workers who, on several occasions, told Complainant that they had no experience performing the type of work they were sent to the project to do. e. Complainant made numerous attempts to contact R. Jeanneret and S. Jeanneret with little or no success. At one point R. Jenneret related that he was unable to perform the work due to illness and requested patience of Complainant since S. Jeanneret was attempting to complete the project on his behalf. f. Complainant attempted to obtain a refund of the $1,500.00 paid to Respondent due to the failure of Respondent to perform the work required under the contract and the fact that Complainant had to repaint the pony wall himself. g. In his answer, Respondent relates that he is unable to complete the project due to his extensive health problems.[2]

APPLICABLE LAW The CITATION AND COMPLAINT issued by the Registrar of Contractors in Case No. M07-0526 charged Respondent with possible violations of A.R.S. §32- 1154A 1 and 7. Those statutory sections require that the holder of a license or person listed on the license shall not commit the following:

1. Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.

…

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 established by a preponderance of credible, probative and relevant evidence that Respondent abandoned the subject project in violation of A.R.S. § 32- 1154A (1). 5. It is further determined and concluded that Complainant established by a preponderance of credible, probative and relevant evidence that Respondent’s actions with regard to its work on the subject premises were wrongful and resulted in substantial injury to Complainant. Therefore, violations of A.R.S. § 32-1154A (7) have been proven as charged in the issued Citation in Case No. M07-0526. 6. This tribunal further determines and concludes that Complainant established by a preponderance of credible, probative and relevant evidence the right to restitution in an amount not less than $1,500.00, the amount paid Respondent pursuant to the parties’ contract for the provision of materials and labor which Respondent failed to complete and/or provide or do in a workmanlike fashion. 7. This tribunal also determines and concludes that the weight of credible, probative and relevant evidence established that, notwithstanding R. Jeanneret’s reported infirmities, Respondent failed to act in good faith during and subsequent to performing its work on the project. Such absence of good faith is further demonstrated by Respondent’s failure to appear at the hearing which shall also serve as a factor in aggravation in this matter.

RECOMMENDED ORDER On the basis of the foregoing, IT IS RECOMMENDED that commencing on the effective date of the Registrar’s Order entered in this matter, the Class C-21 license of Respondent be revoked.[3] Done this day, February 28, 2007.

________________________ Brian E. Smith Administrative Law Judge

Original transmitted by mail this ____ day of ____________, 2007, to:

Registrar of Contractors Fidelis V. Garcia Legal Department 800 West Washington, 6th Floor Phoenix, AZ 85007

By ___________________________ ----------------------- [1] Complainant asked the Administrative Law Judge to take administrative notice of his complaint and the documents annexed thereto filed with the Registrar of Contractors. Annexed thereto was a copy of the parties’ contract dated July 17, 2006 which was executed by Complainant and S. Jeanneret. [2] Complainant testified that, notwithstanding Respondent’s representation of an inability to perform contracting work due to illness, Complainant’s wife, without identifying herself, phoned Respondent the day before the hearing to inquire about work on a project at a different location. In response, R. Jeanneret stated that Respondent would be able to perform the work and offered to come out immediately to bid on the new job. [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 the certification.

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