ALJDEC decisions subject to certification as final

2011A-4511-ROC · Registrar of Contractors · 2011-12-19

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 19, 2011, at 8:00 a.m. APPEARANCES: The Complainant appeared on his own behalf. The Respondents failed to appear. A Spanish/English Interpreter was present for the hearing. ADMINISTRATIVE LAW JUDGE: M. Douglas _____________________________________________________________________ Evidence and testimony were presented and the following Findings of Fact, Conclusions of Law and Recommended Orders are made: FINDINGS OF FACT 1. The Class B-3.151858-R License of Respondent The Fix It Guy Inc. was suspended by the Registrar of Contractors on November 3, 2011, for lack of bond. 2. The Class B-3.270950-R License of Respondent Evolution R & C LLC was suspended by the Registrar of Contractors on November 3, 2011, for lack of bond. 3. Undisputed credible testimony and evidence established that the Complainant suffered storm damage on his roof and retained to the Respondents to perform corrective action on his roof. 4. Undisputed credible testimony and evidence established that pursuant to the terms of the parties’ construction agreement, the Complainant give Respondent The Fix It Guy Inc. a check for $1,388.40 for the agreed upon construction work and that Respondent The Fix It Guy Inc. then deposited the Complainant’s check into the account of Respondent Evolution R & C LLC. 5. Undisputed credible testimony and evidence established that the two Respondents were operating as the same contracting entity with the same personnel. 6. Undisputed credible testimony and evidence established that Respondent Evolution R & C LLC is fully responsible for the actions, errors and omissions of Respondent The Fix It Guy Inc. 7. Undisputed credible testimony and evidence established that Respondent The Fix It Guy Inc. is fully responsible for the actions, errors and commission of Respondent Evolution R & C LLC. 8. There was no dispute that the Respondents accepted the money from the Complainant and then abandoned the construction project leaving the Complainant with a storm damaged roof. 9. When the Respondents failed to comply with the Complainant’s repeated demands that the Respondents return to his residence and complete the agreed upon roofing work, the Complainant filed formal Complaints against the Respondents with the Registrar of Contractors. 10. Undisputed credible testimony and evidence established that the Respondents knowingly and intentionally failed to display their license numbers as per A.R.S. § 32-1124 (B). 11. Undisputed credible testimony and evidence established that the Respondents knowingly acted in the capacity of a contractor in a name other than as set forth upon their licenses. 12. Undisputed credible testimony and evidence established that the Respondents’ business activities in knowingly acting in the capacity of a contractor in a name other than as set forth upon its license and in knowingly failing to comply with the provisions of A.R.S. § 32-1124 (B) would have been grounds to deny the issuance or renewal of a license to Respondent Evolution Roofing R & C LLC. 13. Notice is taken of the Respondents’ prior License records with the Registrar of Contractors. CONCLUSIONS OF LAW 1. The Complainant has the burden of demonstrating by a preponderance of the evidence that the Respondents violated the charged sections of the state’s contracting laws. See Culpepper v. State of Arizona, 187 Ariz. 431, 437-38, 930 P.2d 508 (Ariz. App. 1996). 2. Proof by “preponderance of the evidence” means that it is sufficient to persuade the finder of fact that the proposition is “more likely true than not.” In re Arnold and Baker Farms, 177 B.R. 648, 654 (9th Cir. BAP (Ariz.) 1994). It “is evidence which is of greater weight or more convincing than the evidence which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (rev. 6th ed. 1990). 3. Undisputed credible testimony and evidence supported findings which establish violations by Respondent The Fix It Guy Inc. of the charged provisions of A.R.S. § 32-1154 (A) (1) (abandonment), A.R.S. § 32-1154 (A) (13), namely A.R.S. § 32-1124 (B) (display of license) and A.R.S. § 32-1154 (A) (15) (acting in the capacity of a contractor in a name other than as set forth upon the license). 4. Undisputed credible testimony and evidence supported findings which establish violations by Respondent Evolution R & C LLC of the charged provisions of A.R.S. § (A) (1) (abandonment), A.R.S. § 32-1154 (A) (13), namely A.R.S. § 32-1124 (B) (display of license), A.R.S. § 32-1154 (A) (15) (acting in the capacity of a contractor in a name other than as set forth upon the license) and A.R.S. § 32-1154 (A) (20) (subsequent discovery of facts which would have been grounds to deny the issuance or renewal of a license). RECOMMENDed orders 1. In view of the foregoing, it is recommended that License No. B- 3.151858-R of The Fix It Guy Inc. be revoked. 2. In view of the foregoing, it is recommended that License No. B- 3.270950-R of Evolution R & C LLC be revoked. In the event of certification of this Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of these Orders will be 40 days from the date of the certification. Done this day, December 19, 2011.

/s/ M. Douglas 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