ALJDEC decisions subject to certification as final

2008A-15481095-ROC · Registrar of Contractors · 2010-06-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 16, 2010 at 1:00 p.m. APPEARANCES: Complainant I C E V appeared through David Hadley, Trustee; Respondent Taylor Development Company LLC dba J E T Development did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. On December 18, 2003, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC191344, Class KB-1 for dual building contracting to Respondent Taylor Development Company, LLC dba J E T Development, a limited liability company. 2. The persons listed on Respondent’s license include James Eugene Taylor, Jr., qualifying party and member, and James Eugene Taylor, Sr., member. 3. Respondent’s address of record is 8147 N. 5th St., Phoenix, AZ 85020. 4. On January 2, 2008, the Registrar received a complaint against Respondent’s license from Complainant I C E V, which acronym stands for Islamic Center of the East Valley. According to the complaint, Respondent had contracted to perform work at a mosque that Complaint was having constructed at 425 N. Alma School Rd. in Chandler. Respondent had abandoned the project after being paid. Complainant had obtained a bid from another contractor in the amount of $9,000.00 to complete the work that Respondent had contracted to perform. 5. The Registrar denominated the complaint Case No. 08-1548. On May 29, 2008, the Registrar issued a Citation and Complaint in Case No. 08- 1548 against Respondent’s license, charging violations of A.R.S. § 32- 1154(A)(1), (7), and (9). 6. A hearing was scheduled on December 16, 2008, before Administrative Law Judge Robert I. Worth at the Office of Administrative Hearings. At the time scheduled for the hearing, Complainant accepted Respondent’s offer “to cause certain named private individuals to make a specified total monetary donation to Complainant’s charitable organization payable no later than a stated deadline date.”[1] At the hearing, the parties signed “[a] written form of agreement confirming the details of the parties’ settlement.”[2] 7. On or about January 1, 2009, according to the Registrar’s record, Respondent’s license was suspended after it failed to timely renew the license. 8. On January 8, 2009, the Registrar accepted Judge Worth’s recommendation and issued an order closing the complaint. 9. On September 23, 2009, the Registrar received correspondence from Complainant that stated that Respondent had not performed in accordance with the settlement. 10. On March 22, 2010, the Registrar issued an order reopening the complaint and directed that a compliance hearing be scheduled in the expedited course of docketing on the Phoenix area. 11. On April 16, 2010, the Registrar issued a Notice of Compliance Hearing, setting a compliance hearing at the Office of Administrative Hearings on June 16, 2010 at 1:00 p.m. The Registrar mailed a copy of the Notice of Compliance Hearing to Respondent at its address of record. 12. Complainant’s representative, David Hadley, Trustee, appeared and testified at the duly noticed hearing. 13. Although the beginning of the hearing was delayed fifteen minutes to allow Respondent additional travel time, Respondent did not appear through an authorized member, employee, or attorney. Respondent did not contact the Office of Administrative Hearings to request a continuance or that the start of the hearing be further delayed. Respondent also did not present any evidence to defend its license. 14. Mr. Hadley testified that the parties had agreed that Respondent would arrange a payment to Complainant in the amount of $6,000.00. Respondent had not paid anything to Complainant. Respondent had committed an outrageous breach of trust by taking money from Complainant, which its members “had given as a tribute to God,” without giving anything of value in return. 15. Mr. Hadley testified that Respondent had been referred to Complainant by Mr. Taylor, Sr., who operated a business called Jim’s Sheet Metal. Mr. Taylor, Jr. had represented Respondent in its dealings with Complainant. 16. Mr. Hadley testified that Mr. Taylor, Sr., on behalf of Jim’s Sheet Metal, had fabricated and installed metal columns at the mosque that Complainant was constructing. Mr. Hadley believed that Jim’s Sheet Metal could have its own license. 17. According to the Registrar’s record, Respondent’s license remained suspended on the date of the hearing. 18. Mr. Hadley testified that he believed that Mr. Taylor, Jr. was working with his father, Mr. Taylor, Sr., at Jim’s Sheet Metal. 19. The Administrative Law Judge was not able to determine that the Registrar had ever issued a contractor’s license to Jim’s Sheet Metal, or that Mr. Taylor, Jr. and Mr. Taylor, Sr. were listed on any license other than Respondent’s. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[3] 2. The Notice of Compliance Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received the Notice of Compliance Hearing.[4] 3. The suspended status of Respondent’s license does not preclude Complainant from pursuing its administrative remedy nor preclude the Registrar from conducting these disciplinary proceedings.[5] 4. If the Registrar accepts this recommendation and, as a result of Respondent’s failure to comply with the Registrar’s final decision in this matter, the Registrar revokes Respondent’s license, in due course the revocation may lead to revocation of any other license on which Respondent, James Eugene Taylor, Jr., or James Eugene Taylor, Sr. are also listed[6] and may prevent any new license from being issued to any of these persons.[7] 5. Complainant bears the burden of proof and must establish cause for the Registrar to revoke, suspend, or otherwise discipline Respondent’s license by a preponderance of the evidence.[8] 6. Complainant has borne its burden to establish that Respondent breached its promise to pay $6,000.00 as consideration for Complainant’s agreement to close its complaint against Respondent. Complainant therefore has established that Respondent violated A.R.S. § 32- 1154(A)(1),[9] (7),[10] and (9).[11] 7. Respondent’s bad faith in agreeing to the settlement, after Complainant had agreed to a substantial discount and to withdraw the complaint, and then in failing to pay Complainant any monies whatsoever pursuant to the settlement, is considered a factor in aggravation of the recommended penalty. The Registrar should not allow Respondent any more chances to salvage its license. RECOMMENDED ORDER Based on the foregoing, it is recommended that, on the effective date of the final order in this matter, the Registrar revoke Respondent Taylor Development Company LLC dba J E T Development’s License No. ROC191344, Class KB-1. If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty days from the date of certification. Done this day, June 18, 2010.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Judge Worth’s recommended order at Finding of Fact No. 2. [2] Id. [3] See 32-1101 et seq. [4] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [5] See A.R.S. § 32-1154(C). [6] See A.R.S. § 32-1154(A)(21). [7] See A.R.S. § 32-1122(E). [8] See A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [9] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [10] This statutory subsection formerly included among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[t]he doing of a wrongful or fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [11] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license “[f]ailure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.”

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