ALJDEC decisions subject to certification as final

2011A-4366-ROC · Registrar of Contractors · 2011-11-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 18, 2011

APPEARANCES: Complainant appeared on her 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: Juanita Rojas

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 and air conditioner as a result of a storm. Her insurance company estimated the cost of necessary repairs and issued her a check for $5,207.40. She entered into a written contract for the repairs. The written contract she 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 “Pat.” She also received a business card showing Respondent Evolution’s name and the name “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 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 her signature, “Evolution Roofing & Construction Deposit Only.” Complainant testified that she did not write Respondent’s name under her signature. 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 the check was posted on December 29, 2010. 6. Complainant testified that her agreement with “Pat” allowed her a rebate for placing a sign in her yard that advertised the company. She did so and was paid by Respondent Evolution on two checks printed with Respondent Evolution’s name and signed with an indecipherable signature. One check to Complainant was for an amount of $967.87 and the other for $500.00, making a total of $1,467.87 rebated to Complainant for the yard sign. Thus, she paid a total of $3,739.53 for the repair work. 7. Complainant testified that when nothing was done to her roof after a few weeks, she contact Respondent through the information on the contract and talked to Guy Shackleford, principal for both Respondents. He assured her that the job would be done. Complainant waited a few months but nothing happened. The record shows that Shackleford sent Complainant a letter in February 2011 on Respondent Evolution’s letterhead. It stated that “Pat Burns,” “Mark Maddox,” 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 she continued to wait but nothing was done. She filed her 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.[3] Further, the standard of proof at hearing is by preponderance of the evidence.[4] 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.[5] 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), 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, gave her a rebate, 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. 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) 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 $3,739.53. 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 $3,739.53, 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 $3,739.53, 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 $3,739.53 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 2011-3498 and 2011-4366 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 18, 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] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [4] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [5] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996).

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