ALJDEC decisions subject to certification as final

2010A-308473015-ROC · Registrar of Contractors · 2011-02-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 4, 2011, at 8:00 a.m. APPEARANCES: Complainant Classic Auto Shops appeared through Frank Valdez, a partner in the business; Respondent J B Signs, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT In January 2006, the Arizona Registrar of Contractors (“the Registrar”) issued License No. ROC215851, Class L-38 for commercial signs to J B Signs, L.L.C. (“Respondent”). Respondent’s address of record is 5102 E. Voltaire Ave., Scottsdale, AZ 85254-3639. Classic Auto Shops (“Complainant”) is a business in Chandler, Arizona that sells and/or installs stereos, alarms, window tinting, and other automotive products to the public. On May 12, 2010, the Registrar received a complaint from Complainant against Respondent, alleging that Respondent owed $800.00 that represented a down payment that Complainant paid for a sign that Respondent failed to deliver. The Registrar referred the complaint to Respondent for its immediate attention. After Respondent failed to resolve the complaint, Complainant requested a hearing. On August 31, 2010, the Registrar issued a Citation and Complaint against Respondent, charging a violation of A.R.S. § 32-1154(A)(11). On September 15, 2010, the Registrar received Respondent’s written answer to the Citation and Complaint. Respondent denied any statutory violation and affirmatively alleged that it had spent $679.00 for materials and installed two panels of a sign, but that Complainant did not like Respondent’s sign and canceled the contract. The Registrar referred the matter to the Office of Administrative Hearing (“the OAH”), an independent agency, for an evidentiary hearing. On December 16, 2010, the Registrar issued a Notice of Hearing setting a hearing on February 4, 2011, at 8:00 a.m. at the OAH. The Registrar mailed the Notice of Hearing to Respondent at its address of record. A hearing was held on February 4, 2011, at 8:00 a.m. Complainant’s representative, Frank Valdez, testified and submitted two exhibits. Although the beginning of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, it did not contact the OAH to request that the hearing be continued or that the start of hearing be further delayed, and did not appear through an authorized employee or attorney. Respondent did not present any evidence to defend its license. Mr. Valdez testified that Complainant hired Respondent to fabricate and install signs for Complainant’s new shop on Arizona Avenue in Chandler. On or about April 5, 2010, Respondent submitted a proposal to Complainant to fabricate the signs for Complainant’s new business, for a total price of $2,500.00. Complainant accepted Respondent’s proposal and paid it $800.00 to begin the process of fabrication. Because Complainant was a new business, Mr. Valdez testified that he explained to Respondent how important it was that the sign accurately depict Complainant’s logo. Mr. Valdez submitted a copy of Complainant’s business card and logo. The logo showed the word “CLASSIC” large type, followed by the words “AUTO SHOPS” in smaller type, but in the same line, and the words, “WINDOW TINTING,” “CAR AUDIO,” and “AUTO SECURITY” underneath, in the smallest type. Mr. Valdez testified that he requested that Respondent prepare a proof of the sign before it fabricated the sign, but Respondent’s owner said that he did not have a computer. Mr. Valdez testified that after two weeks, Respondent delivered the first sign that it had fabricated. Complainant submitted a photograph of the sign that Respondent fabricated. The words “AUTO SHOPS” were on two lines, and the letters that made up the various words and the spaces between the words did not have the same proportions as on Complainant’s logo. Mr. Valdez testified that he told Respondent that it needed to fix the sign because Complainant was a new business and needed a consistent logo. Mr. Valdez testified that after he asked Respondent to fix the sign, its owner stated that because “I don’t think that I can make you happy,” Complainant would have to hire someone else. Mr. Valdez testified that initially Respondent’s owner agreed to refund Complainant’s deposit. Mr. Valdez testified that because Respondent’s owner said that it would not correct or complete the signs, and because Complainant was a new business that needed signs quickly, he hired another contractor to fabricate the signs. Mr. Valdez testified that after Complainant did not receive a refund of its deposit from Respondent, he called Respondent’s owner, and Respondent’s owner told him that he had changed his mind about the refund because Respondent’s employee told him “it was a good sign.” According to the Registrar’s record, Respondent’s license is current and in good standing. This is the only complaint pending against the license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[1] 2. The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and it is deemed to have received the Notice of Hearing.[2] 3. Complainant bears the burden of proof and must establish statutory violations by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 4. Complainant established that Respondent failed to fabricate the sign that it had contracted to provide. Complainant also established that after Respondent’s failure was pointed out, it refused to correct the sign, and terminated the parties’ contract. Complainant established that it was justified in hiring another contractor to fabricate the signs to advertise Complainant’s new business. 5. Because Respondent failed to fabricate the sign that it contracted to provide, and refused to correct the sign after Complainant called Respondent’s attention to the sign’s deficiencies, Complainant established that Respondent violated A.R.S. § 32-1154(A)(11)[5] by failing to refund the down payment to Complainant. Under the circumstances, Respondent should be required to refund the down payment to Complainant as a condition of keeping its license in good standing. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar suspend License No. ROC215851, Class L-38 previously issued to Respondent J B Signs, L.L.C. until Respondent pays Complainant Classic Auto Shops the sum of $800.00. It is further recommended that if Respondent provides to the Registrar proof that is satisfactory to the Registrar that it has paid Complainant $800.00 by certified or cashier’s check, the Registrar not suspend Respondent’s license but, instead, close Case No. 2010-[number redacted]. 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, February 22, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See 32-1101 et seq. [2] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] This statutory subsection includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure by a licensee . . . to pay monies in excess of seven hundred fifty dollars when due for materials or services rendered in connection with the licensee’s operations as a contractor when the licensee has the capacity to pay or, if the licensee lacks the capacity to pay, when the licensee has received sufficient monies as payment for the particular construction work project or operation for which the services or materials were rendered or purchased.”

-----------------------

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