ALJDEC decisions subject to certification as final

2011A-4578-ROC · Registrar of Contractors · 2012-02-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: January 12, 2012

APPEARANCES: Complainants appeared on their own behalf; no one appeared on behalf of Respondent; Certified Interpreter Ana Stine assisted Complainant Armando Gonzalez during the hearing by translating the ALJ’s words to him and his words to the ALJ.

WITNESSES: Armando Gonzalez

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainants bring this action complaining about abandonment of a contract that they had with Respondent. As noted above, Respondent failed to appear at the hearing; therefore, Complainants’ evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors into the record. Armando Gonzalez 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 license unless Respondent pays restitution to Complainants in the amount of $3,492.75.

FINDINGS OF FACT 1. Respondent is the holder of license KB-1.173328-D, a dual residential and commercial contractor’s license issued by the Registrar of Contractors (“ROC”). The license authorizes Respondent to perform general residential and general commercial construction. Herbert Shepard is the Qualifying Party. The license has been suspended for lack of bond since October 30, 2011. 2. Complainants’ home suffered hail storm damage sometime in late 2010 or early 2011. They received money from their insurance company for repairs of their damaged roof, removal and replacement of the damaged air conditioner on the roof, and repair of a damaged storage shed. They met with a person named Patrick Burns and entered into a written contract (undated) for the roof work with “Evolution Restoration Services ROC #510686.”[2] The contract price was $6,841.85 and does not appear to include any work but roof replacement. Complainants later received an invoice from “Evolution Restoration Services” that also stated that the company was “Design Builders West DBA Evolution Restoration Services LLC AZ R.O.C. # 173328” and “LICENSED GENERAL CONTRACTOR AZ R.O.C. # 173328.” License 173328 is Respondent’s license. The invoice also included only roof replacement. 3. Mr. Gonzalez testified, and the records show, that Complainants paid Respondent all of the insurance money they received. Respondent was paid in two payments, one for $3,492.75 and another for $6,841.85. The second payment is verified by a handwritten note on the check stub from the insurance company check that states “Received by Mark Bosworth 6/12/11 to continue work on contract. Roof paid in full.” It is initialed by “MB,” presumably Mark Bosworth. Mr. Gonzalez testified that Mark Bosworth was also from the contractor that he hired to fix the roof. 4. Mr. Gonzalez testified that the roof work was performed, but not removal and replacement of the air conditioner, and not repair of the storage shed. Thus, the evidence shows that Complainants received the roof work for $6,841.85, as evidenced by the written contract, but did not receive any benefit for the $3,492.75 that they paid as part of the oral contract for the air conditioner replacement and shed repair. 5. Respondent did not appear at the hearing to dispute Complainants’ 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, Complainants bear the burden of showing, by a preponderance of the evidence, that Respondents have violated the statutes cited in the Citation and Complaint.[5] Complainants have met that burden. 2. The Citation and Complaint issued in this matter 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 has violated those provisions. 3. The uncontested evidence shows that Respondent entered into a contract with Complainants using a name other than Design Builders West. Respondent also received $3,492.75 from Complainants and then abandoned the contract, performing no work on the shed or air conditioner. 4. A review of current ROC records shows that Respondent’s license is 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. 5. The appropriate sanction in this case is revocation unless Complainants are paid back the money for which they received no benefit. That amount is $3,492.75. RECOMMENDED ORDER IT IS RECOMMENDED that license KB-1.173328-D held by Respondent Design Builders West, LLC be revoked on the effective date of the Registrar’s Order unless the Registrar of Contractors receives written proof of payment to Complainants of the sum of $3,492.75, and the Registrar accepts such written proof. IT IS FURTHER RECOMMENDED that if Respondent provides such written proof, on or before the effective date of the Registrar’s Order, the license revocation shall not take place, and case 2011-4578 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, February 1, 2012.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] At hearing, Sylvia Galvan moved to add her husband and co-owner of the house, Armando Gonzalez, as a Complainant. There being no objection, and because Mr. Gonzalez was directly involved in the transaction at issue, the motion was granted. The caption reflects the addition of Mr. Gonzalez as a party Complainant. [2] According to the ROC website, “Evolution Restoration Services” is not a licensed name and license number 510686 does not exist. [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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Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826