ALJDEC decisions subject to certification as final

07F-P0263-ROC · Registrar of Contractors · 2008-04-15

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: April 1, 2008 APPEARANCES: Margaret C. Williamson appeared on her own behalf; no one appeared for Advanced C and C Inc. ADMINISTRATIVE LAW JUDGE: Thomas Shedden _____________________________________________________________________ The issue presented is whether Respondent Advanced C and C Inc. is subject to discipline for acts or omissions in violation of A.R.S. § 32-1154(A). Based on the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law and Recommended Order: FINDINGS OF FACT 1. Advanced C and C Inc. (“Respondent”) holds a Class KB-02 license (number 189972) issued by the Registrar of Contractors (“ROC”). 2. ROC’s website shows that Respondent’s license was revoked on January 22, 2008 and, as of April 15, 2008, was still revoked. 3. Scott Wentzloff is Respondent’s qualifying party. 4. Complainant Margaret C. Williamson owns a manufactured home at 2140 Pine Grove Drive, Show Low, Arizona. 5. Ms. Williamson entered a contract with Respondent in which Respondent agreed to build a concrete driveway at Ms. Williamson’s home.

6. On April 18, 2007, Ms. Williamson filed with ROC Complaint No. P07- 0263 against Respondent alleging that Respondent had not installed the driveway. 7. On December 7, 2007, ROC issued Citation and Compliant No. P07-0263 that alleged Respondent may have violated A.R.S. § 32-1154(A)(1), (A)(3) namely R4-9-108, (A)(7), (A)(13) and (A)(15). 8. On January 3, 2008, ROC issued a Notice of Hearing setting the matter for hearing in Show Low on February 5, 2008. Venue was changed to Phoenix and the matter was continued to 1:30 p.m. April 1, 2008. See Order dated January 31, 2008. 9. No representative appeared for Respondent at the re-scheduled hearing time. After a 15 minute grace period, the Administrative Law Judge convened the hearing in Respondent’s absence. 10. Ms. Williamson appeared and provided credible testimony. Ms. Williamson had 8 exhibits admitted into evidence and administrative notice was taken of the administrative record. 11. ROC Inspector Tom Sandoval appeared by telephone but he did not testify because he had not conducted an inspection because Ms. Williamson had hired another contractor to install the driveway. 12. Ms. Williamson purchased her home through Quality Home Center where she was dealing with Mr. Mark Cobell who introduced her to Mr. Wentzloff. 13. Mr. Wentzloff told Ms. Williamson that he owned Respondent Advanced C and C Inc. On or about September 1, 2006 Ms. Williamson entered a contract in which Respondent agreed to install the driveway. See Ex. C- 7. 14. Ms. Williamson paid Respondent the full purchase price ($3,600.00) for the driveway. 15. Respondent never installed the driveway and Ms. Williamson eventually hired another contractor to do that work. 16. Respondent had also agreed to install the foundation for Ms. Williamson’s home, which work was completed by Respondent.

CONCLUSIONS OF LAW Ms. Williamson has the burden of proof to show that Respondent has violated A.R.S. § 32-1154(A) as alleged in the Citation and Complaint. The standard of proof is that of the preponderance of the evidence. See A.A.C. R2-19- 119. A preponderance of the evidence is “[e]vidence 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 (6th ed. 1990). Under A.R.S. § 32-1154(A)(1), a contractor is subject to discipline for “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” The preponderance of evidence shows that Respondent violated A.R.S. § 32- 1154(A)(1) in that it did not install the driveway as its contract with Ms. Williamson required. Under A.R.S. §32-1154(A)(3), a contractor is subject to discipline for “violation of any rule adopted by the Registrar.” In this case, the ROC charged Respondent with violating A.A.C. R4-9-108, which, among other things, requires contractors to perform work in a professional and workmanlike manner and in accordance with professional industry standards. The preponderance of evidence does not show a violation of A.R.S. § 32- 1154(A)(3) because Respondent did not do any work at Ms. Williamson’s home. Under A.R.S. §32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act…resulting in another person being substantially injured.” The preponderance of evidence shows that Respondent violated A.R.S. § 32-1154(A)(7) because Ms. Williamson has been substantially injured by Respondent’s failure to install the driveway after she paid the full contract price for that driveway. Under A.R.S. § 32-1154(A)(13), specifically, A.R.S. § 32-1124(B), a contractor is required to include their contracting license numbers, preceded by the letters “ROC,” on all documents utilized while engaged in construction-related activities. This requirement is applicable to business cards, sales literature, contract documents, invoices, and other forms utilized by a contractor. Respondent’s proposal form that was used as the contract in this matter, does not show the required information and, consequently, the preponderance of evidence shows a violation of A.R.S. § 32-1154(A)(13). See Exhibit C-7. Under A.R.S. § 32-1154(A)(15), a contractor is subject to discipline for “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.” Respondent’s proposal form that was used as the contract in this matter, shows that Respondent was operating under the name Advanced Concrete and, consequently, the preponderance of evidence shows a violation of A.R.S. § 32-1154(A)(15). See Exhibit C-7. Because Ms. Williamson has met the burden of proof to show that Respondent and Spas, Inc. violated A.R.S. § 32-1154(A)(1), (A)(7), (A)(13) and (A)(15), discipline against Respondent’s license is warranted. That Respondent’s license has previously been revoked is taken as a matter in aggravation. ROC has jurisdiction to impose discipline on a license that has been revoked. A.R.S. § 32-1154(C). RECOMMENDED ORDER IT IS RECOMMENDED that on the effective date of the Order entered in this matter, Advanced C & C Inc.’s Class KB-02 license (No. 189972) shall be revoked; and IT IS FURTHER RECOMMENDED that Respondent be ordered to pay Ms. Williamson restitution in the amount of $3,600.00. 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 will be 40 days from the date of that certification.

Done this day, April 15, 2008

______________________________________ Thomas Shedden Administrative Law Judge

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

Fidelis V. Garcia, Director Registrar of Contractors 3838 N. Central Ave. Phoenix, AZ 85012

By ___________________________

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