ALJDEC decisions subject to certification as final

2011A-4301-ROC · Registrar of Contractors · 2011-12-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 13, 2011, at 8:00 a.m. APPEARANCES: Complainant Raul Avila Marquez appeared on his own behalf; Respondents The Fix It Guy, Inc. and Evolution R & C, L.L.C. did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In February 2000, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B-3.151858-R for residential general remodeling and repair to The Fix It Guy, Inc. (“The Fix It Guy” or “Respondent”). Guyton Shackleford is The Fix It Guy’s qualifying party and officer. The Fix It Guy’s address of record is 4412 West Cathy Circle, Glendale, Arizona 85308- 3535. In February 2011, the Registrar issued License No. B-3.270950-R to Evolution R & C, L.L.C. (“Evolution” or “Respondent”). Guyton Shackleford is Evolution’s qualifying party and member. Evolution’s address of record is also 4412 West Cathy Circle, Glendale, Arizona 85308-3535. On or about April 11, 2011, the Registrar received a complaint from Raul Avila Marquez (“Complainant”) against Evolution regarding its failure to perform a contract to repair the roof on Complainant’s house at 2612 West Glenrosa Avenue, Phoenix, Arizona after Complainant paid Evolution $4,000.00 for the work. The Registrar opened a complaint against Evolution and designated it as Case No. 2011-4301. The Registrar also opened a complaint against The Fix It Guy and designated it as Case No. 2011-3739. On September 6, 2011, the Registrar issued a Citation and Complaint against The Fix It Guy in Case No. 2011-3739, charging violations of A.R.S. § 32- 1154(A)(1), (7), and (15). On September 6, 2011, the Registrar issued a Citation and Complaint against Evolution in Case No. 2011-4301, charging violations of A.R.S. § 32- 1154(A)(1), (7), (15), and (20). Attorney Michael W. Thal of the law firm of Lang, Baker and Klain, P.L.C. filed timely written answers on behalf of both Respondents in Case Nos. 2011-3739 and 2011-4301, denying any statutory violations and affirmatively alleging that Evolution’s employee, Mark Bosworth, entered into a contract with Complainant and took his $4,000.00 without Evolution’s or The Fix It Guy’s knowledge or authorization. The Registrar referred Case Nos. 2011-3739 and 2011-4301 to the Office of Administrative Hearings (“the OAH”), an independent state agency, for a consolidated evidentiary hearing. On October 18, 2011, the Registrar issued a Notice of Hearing in Case No. 2011-3739 setting a hearing at the OAH on December 13, 2011, at 8:00 a.m. The Registrar mailed copies of the Notice of Hearing in Case No. 2011-3739 to The Fix It Guy at its address of record and to Mr. Thal. On October 18, 2011, the Registrar issued a Notice of Hearing in Case No. 2011-4301 setting a hearing at the OAH on December 13, 2011, at 8:00 a.m. The Registrar mailed copies of the Notice of Hearing in Case No. 2011-4301 to Evolution at its address of record and to Mr. Thal. Neither The Fix It Guy nor Evolution asked to appear telephonically at the consolidated hearing or requested that the hearing be continued. Although the start of the duly noticed hearing was delayed thirty minutes to allow Respondents additional travel time, they did not appear, through an authorized officer, member, employee, or attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondents did not present any evidence to defend their licenses. Complainant appeared, submitted six exhibits, and testified, with his son, Rogelio Avila, acting as Spanish translator. According to the Registrar’s electronic record, as of the date of the hearing, The Fix It Guy’s license was suspended for lack of bond, twelve complaints were pending against The Fix It Guy’s license, and two complaints were closed as resolved, settled or withdrawn. According to the Registrar’s electronic record, as of the date of the hearing, Evolution’s license was suspended for lack of bond, ten complaints were pending against Evolution’s license, and one complaint was closed as resolved, settled or withdrawn. Hearing Evidence In October 2010, a hailstorm damaged the roof on Complainant’s house at 2612 West Glenrosa Avenue. On or about November 12, 2010, an adjuster from Complainant’s homeowner’s insurance company authorized repair of the damage. Complainant saw an advertisement for Evolution “Roofing & Construction” that showed The Fix It Guy’s license number and stated, “Se Habla Español.” Complainant called the telephone number on the advertisement and spoke to Mr. Bosworth, with his assistant, Maria, providing Spanish translation. On January 14, 2011, shortly after the telephone conversation, Maria and Mr. Bosworth met Complainant at his house at 2612 West Glenrosa Avenue and presented a contract for Evolution to repair the roof for a single payment of $4,000.00. Mr. Bosworth also presented a contract for Evolution to issue a $1,000.00 credit to Complainant at the end of the job if he allowed Evolution to post its sign in his yard. The Fix It Guy’s license numbers were printed on the bottom of Evolution’s contract forms.[1] On January 14, 2011, Complainant signed both contracts and issued a personal check in the amount of $4,000.00 to Evolution. The check subsequently was endorsed and paid. Complainant testified that no work was ever done on the roof. Complainant testified that Mr. Bosworth said that he had given the money to The Fix It Guy, who performed Evolution’s construction contracts. Complainant testified that he called The Fix It Guy, who denied receiving any money for the job and blamed Mr. Bosworth. Complainant testified that Mr. Bosworth eventually stopped returning his calls. CONCLUSIONS OF LAW These consolidated matters lie within the Registrar’s jurisdiction.[2] The Notices of Hearing that the Registrar mailed to Respondents at their shared address of record and to their attorney were reasonable, and Respondents are deemed to have received notice of the hearing.[3] The administratively suspended status of Respondents’ licenses does not deprive Complainant of his right to prosecute his complaints against Respondents or prevent the Registrar from determining the merits of Complainant’s complaints.[4] Complainant bears the burden of proof to establish cause for the Registrar to discipline Respondents’ licenses by a preponderance of the evidence.[5]

Because Evolution was not licensed when Mr. Bosworth on its behalf entered into two contracts with Complainant and took his $4,000.00, Complainant established in Case No. 2011-4301 that Evolution engaged in unlicensed contracting, in violation of A.R.S. § 32-1151.[6] Therefore, cause exists for the Registrar to discipline Evolution’s license under A.R.S. § 32- 1154(A)(20).[7] Complainant established that there is no real distinction between Evolution and The Fix It Guy because Evolution used The Fix It Guy’s license number to legitimate Evolution’s contracting business. In addition, although Evolution employed Mr. Bosworth as a salesman, The Fix It Guy was expected to perform the contracts he executed on Evolution’s behalf. Complainant also established that Evolution and The Fix It Guy either failed to supervise Mr. Bosworth or participated in the conversion of Complainant’s $4,000.00 by failing to perform any work whatsoever. Therefore, Complainant established that Evolution and The Fix It Guy abandoned their contract with Complainant, in violation A.R.S. § 32-1154(A)(1),[8] and defrauded Complainant, in violation of A.R.S. § 32-1154(A)(7).[9] Complainant also established that The Fix It Guy acted in the capacity of a contractor in a name other than as set forth on its license, in violation of A.R.S. § 32-1154(A)(15).[10] RECOMMENDED ORDER Case No. 2011-3739 As a result of the violations that Complainant Raul Avila Marquez established in Case No. 2011-3739, it is recommended that the Registrar revoke The Fix It Guy’s License No. B-3.151858-R. It is further recommended that if on or before the effective date of the Registrar’s order, The Fix It Guy provides documentary proof that is acceptable to the Registrar that Complainant has been paid $4,000.00 by cashier’s or certified check, the Registrar not revoke The Fix It Guy’s license but, instead, close Case No. 2011-3739. 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. Case No. 2011-4301 As a result of the violations that Complainant Raul Avila Marquez established in Case No. 2011-4301, it is recommended that the Registrar revoke Evolution’s License No. B-3.270950-R. It is further recommended that if on or before the effective date of the Registrar’s order, Evolution provides documentary proof that is acceptable to the Registrar that Complainant has been paid $4,000.00 by cashier’s or certified check, the Registrar not revoke Evolution’s license but, instead, close Case No. 2011-4301. 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 14, 2011.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] The Registrar also issued License No. L-61.151859-C for commercial carpentry, remodeling, and repairs to The Fix It Guy. The Registrar did not charge that license as a result of Complainant’s complaint. [2] See 32-1101 et seq. [3] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [4] See A.R.S. § 32-1154(C). That statute provides that “[t]he expiration, cancellation, suspension or revocation of a license . . . shall not deprive the registrar of jurisdiction to proceed with any investigation of or action or disciplinary proceeding against such license, or to render a decision suspending or revoking such a license . . . .” [5] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [6] A.R.S. § 32-1151 prohibits engaging in contracting without a license and provides in relevant part as follows: It is unlawful for any person, firm, partnership, corporation, association or other organization, or a combination of any of them, to engage in the business of, submit a bid or respond to a request for qualification or a request for proposals for construction services as, act or offer to act in the capacity of or purport to have the capacity of a contractor without having a contractor's license in good standing in the name of the person, firm, partnership, corporation, association or other organization as provided in this chapter . . . . Evidence of . . . the employment of a person on a construction project shall be accepted in any court as prima facie evidence of existence of a contract. [7] A.R.S. § 32-1154(A)(20) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[s]ubsequent discovery of facts which if known at the time of issuance of a license or the renewal of the license would have been grounds to deny the issuance or renewal of the license.” [8] A.R.S. § 32-1154(A)(1) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]bandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.” [9] A.R.S. § 32-1154(A)(7) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[t]he doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [10] A.R.S. § 32-1154(A)(15) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[a]cting in the capacity of a contractor under any license issued under this chapter in a name other than as set forth upon the license.”

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