ALJDEC decisions subject to certification as final

08F-1024-ROC · Registrar of Contractors · 2009-01-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 30, 2008 APPEARANCES: Complainant Patricia Trent appeared on her own behalf. Respondent Kiesler Enterprises, Inc. failed to appear. ADMINISTRATIVE LAW JUDGE: Sondra J. Vanella _____________________________________________________________________ The issue presented by this matter is whether Respondent Kiesler Enterprises, 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: Procedural Background On November 26, 2008, the Registrar of Contractors issued a Notice of Hearing advising the parties that the scheduled hearing of this matter would convene on December 30, 2008 at 9:00 a.m. On the date and at the time scheduled for the hearing, Complainant Patricia Trent was present. No one appeared on behalf of Respondent Kiesler Enterprises, Inc. (“Kiesler”). The Administrative Law Judge delayed the commencement of the hearing for approximately fifteen minutes to allow for the appearance of Kiesler, or the receipt of any information that would constitute good cause for Kiesler’s absence or delay. No such information was received. Therefore, the hearing proceeded in Kiesler’s absence. FINDINGS OF FACT Kiesler is the holder of a Class K-60 license (No. 182006) issued by the Registrar of Contractors (“ROC”).[1] On July 13, 2007, Complainants Walter and Patricia Trent contracted with Kiesler for Kiesler to manufacture and install custom cabinetry in the Trents’ home that they were in the process of remodeling. See Cabinetry Proposal dated July 13, 2007, a copy of which is contained in the case file, the contents of which administrative notice was taken. The contract price was $74,726.53. Id. On July 19, 2007, the Trents paid $36,363.25 to Kiesler. See Copy of check contained in the case file. The following week, Ms. Trent met with Kiesler, and it was determined that the original proposal omitted one room. As such, the parties verbally added the omitted room, and Ms. Trent paid an additional $5,000.00 deposit to Kiesler for the additional room. See Copy of Visa bill contained in the case file. In September 2007, Ms. Trent visited Kiesler’s office and discovered that the water had been turned off, and no progress had been made on her cabinets. In October 2007, Ms. Trent visited Kiesler’s office, only to discover that the office had closed. On November 5, 2007, the Trents filed a complaint against Kiesler with the ROC. In their complaint, the Trents generally alleged that Kiesler had abandoned the project. Thereafter, the Trents obtained bids from other contractors, and in November 2007, contracted with another contractor for the cabinetry. The cabinetry was installed in April 2008, at a cost of $82,272.46. Ms. Trent credibly testified at hearing that Kiesler failed to provide them with any of the cabinetry notwithstanding the fact that they paid Kiesler $41,363.25. Kiesler did not reimburse the Trents any of the monies paid. CONCLUSIONS OF LAW In this proceeding, the Trents bear the burden to prove, by a preponderance of the evidence, that Kiesler is subject to discipline for violations of A.R.S. § 32-1154(A)(1) and/or (A)(7) as charged by the ROC in its April 17, 2008 Citation and Complaint. See Arizona Administrative Code R2-19-119. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). The Administrative Law Judge concludes that the Trents met their burden of proof as to both of the ROC’s charges. 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 Administrative Law Judge concludes, based on the weight of the credible evidence of record, that Kiesler failed to complete the project that it contracted to perform without legal excuse for such failure. Therefore, the Administrative Law Judge concludes that Kiesler violated A.R.S. § 32- 1154(A)(1). Under A.R.S. § 32-1154(A)(7), a contractor is subject to discipline for “the doing of a wrongful or fraudulent act . . . as a contractor resulting in another person being substantially injured.” The Administrative Law Judge concludes, based on the weight of the credible evidence presented at hearing, that Kiesler committed wrongful acts that substantially injured the Trents by failing to perform any part of the contract and by failing to reimburse the Trents the monies paid. Therefore, the Administrative Law Judge concludes that Kiesler violated A.R.S. § 32-1154(A)(7). Based on the foregoing, it is appropriate for the ROC to impose discipline against Kiesler’s Class K-60 license. Upon consideration of all of the facts and circumstances presented by this case, including Kiesler’s failure to appear for hearing and Kiesler’s suspended and revoked license status, the Administrative Law Judge concludes that the ROC should revoke Kiesler’s Class K-60 license. RECOMMENDED ORDER In view of the foregoing, it is recommended that Kiesler’s Class K-60 license shall be revoked on the effective date of the Order entered in this matter. 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, January 5, 2009.

______________________________________ Sondra J. Vanella Administrative Law Judge

Original transmitted by mail this ____ day of January, 2009, to:

Armando Contreras, Director Registrar of Contractors 3838 North Central Avenue Phoenix, AZ 85012

By ___________________________

----------------------- [1] A review of the ROC’s official records revealed that Kiesler’s contracting license was suspended on January 6, 2008 for lack of bond, revoked in Case No. 08-0948, revoked on December 24, 2008 in Case No. M08- 0695, and revoked on December 29, 2008 in Case No. M08-0737. Such suspended and revoked license status does not preclude this tribunal from conducting these administrative proceedings. A.R.S. § 32-1154(C).

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