ALJDEC decisions subject to certification as final

2010A-18637762-ROC · Registrar of Contractors · 2010-08-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 21, 2010 APPEARANCES: Frank Kelton appeared personally. Emergency Restoration Experts, Inc. was represented by its authorized representative, Julie Walker. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ Based upon the evidence of record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order: FINDINGS OF FACT 1. Emergency Restoration Experts, Inc. (“Respondent”) is the holder of License No. 169014, a Class K-5 contracting license issued by the Registrar of Contractors (“Registrar”). 2. Respondent was hired by Frank Kelton (“Complainant”) to perform water remediation work at Complainant’s residence located at 2144 East Vaughn Avenue, Gilbert, Arizona. 3. On November 18, 2009, Complainant filed a written Complaint with the Registrar alleging the following against Respondent during the subject project: EMERGENCY RESTORATION EXPERTS (ERE) both conspired with and allowed their [sic] ROC contractor’s license, and represent ERE in order to enduce [sic] me to pay for work that was not completed. ERE specifically sent Mr. Nickelson, representing ERE, to my residence in order to solicit me.

4. The Registrar initially designated Complainant’s Complaint as Case No. 10-1863, but later re-designated the Complaint as Case No. 2010- 18637762. 5. The Registrar issued a Citation and Complaint in Case No. 2010- 18637762 charging Respondent with violating the provisions of A.R.S. § 32-1154(A) (1), (7), (9), (10), (16), (17), (3), namely A.A.C. R4-9- 108, and (13), specifically A.R.S. § 32-1124(B). 6. The Registrar forwarded Case No. 2010-18637762 to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 7. Daryl Nickelson was an employee of Respondent when Respondent was hired to perform water remediation at Complainant’s residence after his basement flooded. 8. At some point during the project, Mr. Nickelson suggested to Complainant that Mr. Nickelson could construct wooden cabinets instead of replacing water-damaged drywall. 9. Mr. Nickelson presented Complainant with a written contract, which listed Mr. Nickelson’s business name as New Arizona Woodworking. The contract did not list a Registrar issued contracting license number or state that Mr. Nickelson was an unlicensed contractor. The contract does not list Respondent’s name or its contracting license number. 10. Mr. Nickelson offered to perform the construction of upper and lower cabinet systems for Complainant for a contract price of $2,000.00. 11. On February 21, 2009, Complainant executed Mr. Nickelson’s contract. By signing the contract, Complainant made the following written acknowledgement: “I Frank Kelton Have [sic] read, understand, and agree to the terms of this contract.” 12. On February 21, 2009, Complainant paid Mr. Nickelson the sum of $1,000.00 in cash towards the contract price. Mr. Nickelson acknowledged receiving that payment in writing on the contract. 13. Mr. Nickelson failed to complete the scope of work contained in his contract with Complainant. 14. At hearing, Complainant failed to present credible evidence establishing that Respondent knowingly sent Mr. Nickelson to Complainant’s residence to perform unlicensed contracting. 15. Complainant failed to present credible evidence establishing that Respondent had any knowledge that Mr. Nickelson was performing unlicensed contracting while he was an employee performing water remediation work on Complainant’s project. 16. It is uncontroverted that Complainant entered into a written contract with Mr. Nickelson, doing business as New Arizona Woodworking, for unlicensed contracting work, and that Complainant paid Mr. Nickelson a portion of the contract price. 17. Respondent was not a party to the contract between Complainant and Mr. Nickelson. Respondent did not receive any proceeds from that contract. 18. Complainant failed to present credible evidence to establish any fraudulent act by Respondent in this matter. 19. Mr. Nickelson abandoned the unlicensed project, not Respondent. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this case. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is preponderance of the evidence. A.A.C. R2-19-119(A). 3. Complainant failed to sustain his burden of proving that Respondent violated the provisions of A.R.S. § 32-1154(A) (1), (7), (9), (10), (16), (17), (3), namely A.A.C. R4-9-108, and (13), specifically A.R.S. § 32-1124(B). The evidence of record supports this conclusion. RECOMMENDED ORDER The Citation and Complaint in Case No. 2010-18637762 shall be dismissed 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, August 2, 2010.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

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