ALJDEC decisions subject to certification as final

2011A-4288-ROC · Registrar of Contractors · 2011-12-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

CONSOLIDATED HEARING: December 2, 2011 APPEARANCES: Orgneta Jones appeared personally. Evolution R & C, L.L.C. and The Fix It Guy, Inc. did not appear. 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. Evolution R & C, L.L.C. (“Evolution”) is the holder of License No. 270950, a Class B-3 contracting license issued by the Registrar of Contractors (“Registrar”). 2. The Fix It Guy, Inc. (“Fix It Guy”) is the holder of License No. 151858, a Class B-3 contracting license issued by the Registrar. 3. On June 16, 2011, Orgneta Jones (“Complainant”) filed a written Complaint with the Registrar against “Free Roof Phx Com” alleging that she paid Evolution $2,800.00 to perform roof repairs at Complainant’s residence located at 3819 West Hazelwood, Phoenix. Complainant stated that no roof repairs were performed by Evolution. 4. On January 4, 2011, Complainant accepted Evolution’s written contract for performing roof repairs at Complainant’s residence. The contract did not list a Registrar-issued contracting license number for Evolution. 5. On January 4, 2011, Complainant also executed documentation listing Evolution and “FreeRoofPhoenix.com.” The documentation listed the following license numbers for Evolution: “ROC #151858 #151859.” However, those licenses were issued to Fix It Guy. 6. Complainant also received a business card from Mark Maddocks, an employee of Evolution, that also attributed those license numbers to Evolution. 7. On January 6, 2011, Complainant paid Evolution the sum of $2,800.00 by a credit union check. 8. As a result of Complainant’s Complaint, the Registrar issued a Citation and Complaint in Case No. 2011-3526 charging Evolution with violating the provisions of A.R.S. § 32-1154(A)(1), (13), namely A.R.S. § 32-1124(B), (15), and (20). 9. Also as a result of Complainant’s Complaint, the Registrar issued a Citation and Complaint in Case No. 2011-4288 charging Fix It Guy with violating the provisions of A.R.S. § 32-1154(A)(1), (13), namely A.R.S. § 32-1124(B), and (15). 10. The Registrar forwarded Case Nos. 2011-3526 and 2011-4288 to the Office of Administrative Hearings, an independent agency, for a consolidated evidentiary hearing. 11. The Registrar issued Notices of Hearing in Case Nos. 2011-3526 and 2011-4288 that advised the parties of the time, date, and location of the consolidated evidentiary hearing. The Notices of Hearing were sent to the parties at their addresses of record with the Registrar. 12. The commencement of the consolidated hearing was delayed 15 minutes to allow for the late arrival of authorized representatives for Evolution and Fix It Guy. After the delay, the Administrative Law Judge conducted the consolidated hearing in the absence of Evolution and Fix It Guy. 13. Evolution and Fix It Guy abandoned Complainant’s project by not performing the roof repairs pursuant to the contract and after receiving the $2,800.00 payment from Complainant. 14. Complainant paid an additional $1,500.00 to another contractor to perform the required repairs to her roof. After those repairs were completed, Complainant’s roof has not leaked. 15. The subject contract failed to properly list a Registrar-issued contracting license. 16. Fix It Guy and Evolution failed to do business with Complainant in the name appearing on License No. 151858 issued to Fix It Guy. 17. A review of the Registrar’s official electronic licensing records reveals that Evolution’s License No. 270950 was issued on February 10, 2011, which was after the date of the contract with Complainant. Guyton Shackleford is listed as Evolution’s qualifying party and sole member. License No. 270950 was suspended by operation of law for lack of bond on November 3, 2011. That license has 10 open complaints and resolved/settled/withdrawn complaint. 18. A review of the Registrar’s records further reveals that Fix It Guy’s License No. 151858 was suspended by operation of law for lack of bond on November 3, 2011. Guyton Shackleford is listed as Fix It Guy’s qualifying party and officer. Debora Sue Shackleford is also listed as an officer. That license has 12 open complaints and 2 resolved/settled/withdrawn complaints. 19. Evolution’s contracting with Complainant using Fix It Guy’s License No. 151858 before Evolution had been issued License No. 270950 and Evolution’s cashing Complainant’s $2,800.00 without performing any work are factors which, if known to the Registrar, would have been grounds to deny the issuance of License No. 270950 to Evolution. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Evolution and Fix It Guy, and the subject matter in these consolidated cases. 2. Pursuant to A.R.S. § 32-1154(C), the suspensions of the licenses issued to Evolution and Fix It Guy do not deprive the Registrar of the authority to impose discipline upon those licenses for proven statutory violations in these matters. 3. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in these matters. The standard of proof is by a preponderance of the evidence. A.A.C. R2-19-119(A). Case No. 2011-3526 4. The evidence of record established that Evolution abandoned Complainant’s project in violation of A.R.S. § 32-1154(A)(1), as charged in the Citation and Complaint issued by the Registrar in Case No. 2011-3526. 5. The evidence of record established that Evolution failed to list a valid contracting license number in Complainant’s contract in violation of A.R.S. § 32-1154(A)(13), specifically A.R.S. § 32- 1124(B), as charged in the Citation and Complaint issued by the Registrar in Case No. 2011-3526. 6. The evidence of record established that Evolution failed to contract in the name appearing on License No. 151858 that was used on various documents in violation of A.R.S. § 32-1154(A)(15), as charged in the Citation and Complaint issued in Case No. 2011-3526. 7. The evidence of record established that the discovery of Evolution’s conduct described in the above-provided Findings of Fact would have been grounds to deny the issuance of License No. 270950 to Evolution pursuant to A.R.S. § 32-1154(A)(20), as charged in the Citation and Complaint issued by the Registrar in Case No. 2011-3526.

Case No. 2011-4288 8. The evidence of record established that Fix It Guy abandoned Complainant’s project in violation of A.R.S. § 32-1154(A) (1), as charged in the Citation and Complaint issued by the Registrar in Case No. 2011-4288. 9. The evidence of record established that Fix It Guy failed to list its License No. 151858 in the contract with Complainant, which was used in various documents given to Complainant during negotiations, in violation of A.R.S. § 32-1154(A)(13), specifically, A.R.S. § 32- 1124(B), as charged in the Citation and Complaint issued by the Registrar in Case No. 2011-4288. 10. The evidence of record established that Fix It Guy acted in the name of Evolution using License No. 151858, in violation of A.R.S. § 32- 1154(A) (15), as charged in the Citation and Complaint issued by the Registrar in Case No. 2011-4288. RECOMMENDED ORDERS Case No. 2011-3526 Evolution’s License No. 270950 shall be revoked on the effective date of the Order entered in Case No. 2011-3526. If Evolution presents written proof to the Registrar that either Evolution or Fix It Guy, or both, have paid restitution to Complainant in the total amount of $2,300.00 on or before the effective date of the Order entered in Case No. 2011-3526, then the above-provided license revocation shall not take place, but instead, Evolution’s License No. 270950 shall be suspended for a period of 60 days, followed immediately by a period of disciplinary probation for one year. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. 2011-3526. Case No. 2011-4288 Fix It Guy’s License No. 151858 shall be revoked on the effective date of the Order entered in Case No. 2011-4288. If Fix It Guy presents written proof to the Registrar that either Evolution or Fix It Guy, or both, have paid restitution to Complainant in the total amount of $2,300.00 on or before the effective date of the Order entered in Case No. 2011-4288, then the above-provided license revocation shall not take place, but instead, Fix It Guy’s License No. 151858 shall be suspended for a period of 60 days, followed immediately by a period of disciplinary probation for one year. This alternative penalty shall commence, if at all, on the effective date of the Order entered in Case No. 2011-4288. 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 22, 2011.

/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