ALJDEC decisions subject to certification as final

2011A-3432-ROC · Registrar of Contractors · 2011-10-24

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 24, 2011, at 1:00 p.m. APPEARANCES: The Complainants appeared through Penny Petty. The Respondent appeared on his own behalf. ADMINISTRATIVE LAW JUDGE: M. Douglas

Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Order are made: FINDINGS OF FACT 1. The Respondent’s License (No. 148753) was suspended by the Registrar of Contractors for non-renewal on October 1, 2011. 2. Undisputed credible testimony and evidence established that the Complainants entered into a construction agreement with the Respondent for the Respondent to properly correct their roof for the total sum of $11,276.72. 3. There was no dispute that the Respondent’s construction agreement failed to contain the minimum elements of a contract required by applicable statute. 4. There was no dispute that the Complainants paid the Respondent in full for the agreed upon construction work on their roof. 5. There was no dispute that the Respondent took the Complainants’ money and failed to perform any construction work on the Complainants’ roof. 6. When the Respondent failed to perform any construction work on their roof and failed to return of the Complainants’ telephone calls, the Complainants filed a formal complaint against the Respondent with the Registrar of Contractors. 7. Pursuant to the filing of the Complainants’ Complaint, a Citation and Complaint was issued against the Respondent’s License. 8. The Respondent asserted that he should not be totally responsible for the complaint at issue because although he knowingly allowed others to utilize his constructor’s license number to conduct construction work in the State of Arizona, he was unaware that they were taking money from homeowners and then failing to perform any of the agreed upon construction work. 9. Credible testimony and evidence established that the Respondent responded to an advertisement in Craigslist where two individuals identified as Eric Mitchell Hoffman and Donald Allen Johnson offered to pay $1,500.00 per week for a period of six (6) months for the use of a contractor’s license in good standing. 10. Credible testimony and evidence established that the Respondent accepted the offer and allowed Eric Mitchell Hoffman and Donald Allen Johnson to use his license number and name for their construction work. 11. Credible testimony and evidence established that the two said individuals then conducted contracting business in the Respondent’s name utilizing the Respondent’s license number. 12. Credible testimony and evidence established that initially, Eric Mitchell Hoffman and Donald Allen Johnson would actually perform construction work utilizing the Respondent’s license number and business name, and the Respondent would then check the workmanship performed by the two individuals. 13. Credible testimony and evidence established that after the first few construction projects, Eric Mitchell Hoffman and Donald Allen Johnson stopped performing construction work and would solicit construction projects and obtain payment from homeowners and then abandon the construction projects, keeping whatever money the homeowners had paid them. 14. Credible testimony and evidence established that the Respondent knew that Eric Mitchell Hoffman and Donald Allen Johnson were utilizing his contractor’s license number and the Respondent’s name to obtain construction projects in the State of Arizona. 15. Credible testimony and evidence established that the Respondent knew that Eric Mitchell Hoffman and Donald Allen Johnson were not licensed contractors in the State of Arizona while they were performing construction activities in the State utilizing the Respondent’s license number and business name. 16. Credible testimony and evidence established that the Respondent knew that Eric Mitchell Hoffman and Donald Allen Johnson would accept money from homeowners and then abandon the construction projects without performing any of the agreed upon construction work for the money that was paid to them. 17. Credible testimony and evidence established that the Respondent knowingly aided and abetted Erick Mitchell Hoffman and Donald Allen Johnson to evade the licensing requirements of the State of Arizona. 18. The Respondent is found to be fully responsible for the acts, errors, and omissions committed by Erick Mitchell Hoffman and Donald Allen Johnson while they were utilizing the Respondent’s license number and performing construction activities in the Respondent’s name. 19. Credible testimony and evidence established that on April 18, 2011, Erick Mitchell Hoffman and Donald Allen Johnson obtained a Class KB-2 (No. 271051) License from the Registrar of Contractors. 20. Credible testimony and evidence established that on February 23, 2011, Erick Mitchell Hoffman and Donald Allen Johnson obtained a Class K-42 (No. 271049) License from the Registrar of Contractors. 21. Credible testimony and evidence established that Erick Mitchell Hoffman and Donald Allen Johnson are the same two individuals that utilized the Respondent’s name and license number to solicit construction projects and obtain money from homeowners and then abandon the construction projects without performing any construction work. 22. Notice is taken of the Respondent’s prior License record with the Registrar of Contractors.

CONCLUSIONS OF LAW 1. The Complainants have the burden of demonstrating by a preponderance of the evidence that the Respondent violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). Proof by preponderance of the evidence “is evidence 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 (rev. 6th ed. 1990). 3. Undisputed credible testimony and evidence supported findings which establish that the Respondent violated the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment), A.R.S. § 32-1154 (A) (10) (aiding or abetting a licensed or unlicensed person to evade this chapter, knowingly or recklessly combining or conspiring with a licensed or unlicensed person, allowing one’s license to be used by a licensed or unlicensed person or acting as agent, partner, associate or otherwise of a licensed or unlicensed person with intent to evade this chapter) and A.R.S. § 32- 1154 (A) (13), namely, A.R.S. § 32-1159 (minimum elements of a contract). RECOMMENDed order In view of the foregoing, it is recommended that the Respondent’s License be revoked on the effective day of this Order. It is further recommended that the Registrar conduct an investigation of the construction activities of Erick Mitchell Hoffman and Donald Allen Johnson and the contractor’s licenses issued to those individuals. In the event of certification of this 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 the certification. Done this day, October 24, 2011. /s/ M. Douglas 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