ALJDEC decisions subject to certification as final

2011A-3527-ROC · Registrar of Contractors · 2011-12-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 1, 2011

APPEARANCES: Complainant appeared on his own behalf; no one appeared on behalf of Respondent Evolution R & C LLC; no one appeared on behalf of Respondent The Fix It Guy Inc.

WITNESSES: Douglas Johnsen

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action complaining about abandonment of a contract that he had with Respondent Evolution R & C LLC (“Evolution’). That contract displayed the license numbers for Respondent The Fix It Guy Inc. “(Fix It”). As noted above, neither Respondent appeared at the hearing; therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record. Complainant testified about the contract. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding abandonment and recommending revocation of the licenses unless Complainant’s money is returned by one or both of the Respondents. FINDINGS OF FACT 1. Respondent Evolution is the holder of license B-3.270950-R, a general residential contracting license issued by the Registrar of Contractors (“ROC”). That license authorizes Respondent to perform general remodeling and repair of residential properties. Guyton Shackleford is the company’s sole Member and Qualifying Party. The license was issued February 10, 2011. The license was suspended on November 3, 2011, for lack of bond. 2. Respondent Fix It is the holder of license B-3.151858-R, also a general residential contracting license issued by the ROC. The license is also a B-3 license with the same scope as Respondent Evolution’s license. Guyton Shackleford is a corporate officer of Respondent Fix It and is Qualifying Party on the license.[1] The license was issued in February 2000. Respondent Fix It’s license was also suspended on November 3, 2011, for lack of bond. 3. Complainant’s residence suffered a damaged roof as a result of a hail storm in late 2010. His insurance company estimated the cost of necessary repairs and issued him a check for $4,894.93. He entered into a written contract for the repairs. The written contract he entered into is on a contract form indicating “Evolution Roofing & Construction LLC” and is signed by Complainant and a representative for Respondent Evolution whose signature is indecipherable. Complainant testified that the contract was signed by someone named Mark Bosworth He also received a business card showing Respondent Evolution’s name and the name “Mark.” Both the contract and the business card exhibit the license numbers “151858” and “151859,” both of which belong to Respondent Fix It. 4. The evidence shows that Complainant’s contract named Respondent Evolution as the contractor. The contract fails to exhibit Respondent Evolution’s license number, exhibiting instead the numbers for Respondent Fix It. Complainant signed the contract on January 12, 2011. 5. Complainant testified that he signed the insurance check on the back and gave it to a representative from Respondent Evolution. A copy of the cancelled check shows that it was endorsed by Complainant and states in handwriting just beneath his signature, “Evolution Roofing & Construction LLC.” Complainant testified that he did not write Respondent’s name under his signature. Printed information on the check shows that the check was deposited. 6. Complainant testified that when nothing was done to the roof after a few weeks, he contacted Respondent through the information on the contract and talked to Ty Riley, a purported owner for Respondent Evolution. He assured Complainant that the job would be done. Complainant waited a few months but nothing happened. The record shows that Ty Riley and Guy Shackleford, principal for both Respondents, sent Complainant a letter in February 2011 on Respondent Evolution’s letterhead. It stated that Mark Bosworth and others no longer worked for Respondent Evolution. The letter did not challenge the validity of Complainant’s contract with the company. 8. Complainant testified that he continued to wait but nothing was done. In May 2011, he was informed that no work would be done on his roof and that the money he had paid would not be returned. He filed his complaint in June 2011. 9. Respondents did not appear at the hearing to dispute Complainant’s evidence. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[2] Further, the standard of proof at hearing is by preponderance of the evidence.[3] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondents have violated the statutes cited in both Citation and Complaints.[4] Complainant has met that burden. Violations by Respondent Evolution 2. The Citation and Complaint issued against Respondent Evolution alleges violations of Arizona Revised Statutes (A.R.S.) § 32- 1154(A)(1)(prohibits abandonment of a contract without legal excuse), (A)(13) with reference to A.R.S. § 32-1124(B) (requires proper display of license number), (A)(15) (prohibits using a name other than that on the license), and (A)(20) (allows for discipline of a license when there is discovery of facts after a license is issued that would have been grounds to deny the license if known at the time the license was issued). Respondent Evolution has violated several of those provisions. 3. The uncontested evidence shows that Respondent Evolution entered into a contract with Complainant in January 2011, before its license was issued, using Respondent Fix It’s license numbers. It received the entire contract price from Complainant and then abandoned the contract, performing no work even after it became licensed in February 2011. 4. This tribunal finds that Respondent Evolution abandoned the contract after it became licensed. The abandonment occurred in May 2011. 5. With regard to the other citations, a warning letter was issued to Respondent Evolution about the improper-display charge. That violation is obvious on this record, but this tribunal finds that the warning is sufficient and no further action is required. Lastly, Respondent Evolution had not abandoned the contract before February 2011, so (A)(20) would not apply to any abandonment. Neither has Respondent Evolution been charged with contracting without a license for the period prior to February 2011. Therefore, this tribunal does not find a violation of (A)(20) because it does not find a predicate violation. Violations by Respondent Fix It 6. The Citation and Complaint issued against Respondent Fix It alleges violations of Arizona Revised Statutes (A.R.S.) § 32- 1154(A)(1)(prohibits abandonment of a contract without legal excuse), (A)(13) with reference to A.R.S. § 32-1124(B) (requires proper display of license number), and (A)(15) (prohibits using a name other than that on the license). Respondent Fix It has violated those provisions. 7. When Riley and Shackleford ratified the contract with Complainant, which contained Respondent Fix It’s license numbers, they bound both Respondent Evolution and Respondent Fix It to the contract. Thereafter, no work was done. Thus, Respondent Fix It, like Respondent Evolution, abandoned the contract. Also, the mixture of the name and license numbers on the ratified contract were not a proper display. These are violations of the provisions cited above.[5] Conclusion 8. A review of current ROC records shows that both Respondents’ licenses are currently suspended for lack of bond. Pursuant to A.R.S. § 32- 1154(C), the suspension of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the Registrar powerless to further discipline the license. 9. Because Respondents abandoned Complainant and kept his money, the appropriate sanction for both licenses is revocation, unless Complainant is paid back the money that was taken. The licenses are jointly and severally responsible for the amount of $4,894.93. RECOMMENDED ORDER IT IS RECOMMENDED that license B-3.270950-R, held by Evolution R & C LLC be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives written proof of payment to Complainant of the sum of $4,894.93, and the Registrar accepts such written proof. IT IS RECOMMENDED that license B-3.151858-R, held by The Fix It Guy Inc. be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives written proof of payment to Complainant of the sum of $4,894.93, and the Registrar accepts such written proof. The above payments to Complainant may be made by either Respondent Evolution or Respondent Fix It or both of them in any amounts so long as they equal the sum of $4,894.93 to Complainant. IT IS FURTHER RECOMMENDED that if either Respondent provides such written proof of the payment above, on or before the effective date of the Registrar’s Order, the license revocations shall not take place and cases 2011-3527 and 2011-4291 shall be closed.

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, December 20, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Respondent Fix It also holds license L-61.151859-C, a commercial carpentry license. [2] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [3] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [4] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996). [5] A warning letter was issued for the 32-1124(B) violation and this tribunal finds that to be sufficient for that violation.

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

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