ALJDEC decisions subject to certification as final

2011A-4286-ROC · Registrar of Contractors · 2011-11-07

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 7, 2011

APPEARANCES: Complainant appeared on her own behalf and was assisted by Spanish-language interpreter Gabriela Contreras; no one appeared on behalf of Respondent Evolution R & C LLC; no one appeared on behalf of Respondent The Fix It Guy Inc.

WITNESSES: Eustorgia Hernandez

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action complaining about abandonment of a contract that she 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.[2] 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 storm. Her insurance company estimated the cost of necessary repairs and issued her a check for $5,921.01.[3] She entered into a written contract for the roof repairs. The written contract 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 the person who gave her a business card that is attached to the complaint and shows “Mark Maddocks.” 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 December 28, 2010. 5. Complainant testified that she signed the check on the back and gave it to “Mark” who took it. A copy of the cancelled check shows that it was also signed on the back by “Susan James [or perhaps Jones]” and states in handwriting, “Evolution Roofing & Construction Deposit Only” and “Without Recourse Bank of America.” Complainant testified that when she contacted the bank to get a copy of the cancelled check, the bank confirmed that the check was deposited. The record shows that it was posted on December 30, 2010. 6. Complainant testified that when nothing was done to her roof after a few weeks, she went to an address in Glendale, Arizona: 4412 W. Cathy Circle. That address is the address of record for both Respondents. Once there, she spoke with Guy Shackleford who confirmed her contract and said her job would get done, even though he had fired Mark Maddocks. Complainant waited a few months and then contacted Shackleford again. He still maintained that her job would be done, but asked for more time. The record shows that he sent Complainant two letters, one in February 2011, and the other in March 2011, stating that the jobs would be done. The February 2011 letter was on Respondent Evolution’s letterhead; the other letter has no letterhead. 7. Complainant testified that she continued to wait for another month but nothing was done. She called Shackleford on the telephone and he told her, for the first time, that her job would not be done. She filed her complaint in June 2011. 8. 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.[4] Further, the standard of proof at hearing is by preponderance of the evidence.[5] 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.[6] 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)(13) with reference to A.R.S. § 32-1158 (requires certain minimum elements of a contract), (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 December 2010, 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 sometime after March 2011 and before June 2011. 5. With regard to the other citations, warning letters were issued to Respondent Evolution about the improper display charge and the minimum elements of contract charge. Those violations are obvious on this record, but this tribunal finds that the warnings are sufficient and no further action is required. Respondent Evolution did not violate (A)(15) by using another name; it used the name on the license. 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 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), and (A)(15) (prohibits using a name other than that on the license). Respondent Fix It has violated those provisions. 7. When Shackleford ratified the contract with Complainant, which contained Respondent Fix It’s license numbers, he 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. 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 her money, the appropriate sanction for both licenses is revocation, unless Complainant is paid back the money that was taken. The licenses should be jointly and severally responsible for the amount of $5,921.01. 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 $5,921.01, 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 $5,921.01, 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 $5,921.01 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 2011-3519 and 2011-4286 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, November 7, 2011.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Request for Hearing filed with the Office of Administrative Hearings by the Registrar of Contractors reflects that the ROC intended that the matters be consolidated, and the two matters were duly scheduled for the same hearing time. Even though separate Notices of Hearing were issued, and there has been no formal order of consolidation, the matters are nonetheless proper for consolidation under Arizona Administrative Code, OAH Rule R2-19-109(A) and are hereby consolidated as captioned above. [2] Respondent Fix It also holds license L-61.151859-C, a commercial carpentry license. [3] The check was issued jointly to her, her husband, and her mortgage holder. [4] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [5] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [6] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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