ALJDEC decisions subject to certification as final

2011A-4695-ROC · Registrar of Contractors · 2012-03-05

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 14, 2012, at 1:00 p.m. APPEARANCES: Complainants Arlene Boggs and Steve Boggs appeared on their own behalf; Respondent Terryl Curtis Gibson dba Gibson and Gibson Development did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure In September 1999, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B.148753-R for residential general contracting to Terryl Curtis Gibson doing business as (“dba”) Gibson and Gibson Development (“Respondent”). Respondent’s address of record on the Registrar’s public website is 784 East Chelsea Drive, Queen Creek, Arizona 85140-5561. On August 15, 2011, the Registrar received a complaint from Arlene Boggs (“Complainant” or “Mrs. Boggs”) against Respondent regarding his failure to perform his contract to strip and repair the roof on Complainant’s house at 10161 East Quarterline Road in Mesa, Arizona, after Complainant paid him $2,141.33. Complainant requested that the Registrar issue a citation against Respondent after he failed to resolve the complaint. On November 2, 2011, the Registrar issued a Citation and Complaint, charging Respondent with violating A.R.S. § 32-1154(A)(1). The Registrar mailed a copy of the Citation and Complaint to Respondent at his address of record. Respondent filed a timely written answer to the Citation and Complaint, affirmatively alleging that Global Construction hired him to oversee its roofing projects and to allow it to use his residential license, that he knew nothing about the contract with Complainant, and that he did not receive any of Complainant’s money. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an evidentiary hearing. On December 6, 2011, the Registrar issued a Notice of Hearing setting a hearing on January 30, 2012, at 8:00 a.m. The Registrar mailed a copy of the Notice of Hearing to Respondent at his address of record. On January 26, 2012, Complainant requested that the hearing be continued because she stated that the Registrar had only recently informed her of the hearing date. On January 27, 2012, the Administrative Law Judge issued an order continuing the hearing to February 14, 2012, at 1:00 p.m. The OAH mailed a copy of the January 27, 2012 order to Respondent at his address of record. In addition, on January 27, 2012, the OAH’s staff made a telephone call to Respondent and informed him that the hearing had been continued to February 14, 2012, at 1:00 p.m. A hearing was held on February 14, 2012. Complainant Mrs. Boggs and her son, co-complainant Steve Boggs (“Mr. Boggs”), testified. Respondent did not request to appear telephonically and did not request that the hearing be continued a second time. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, Respondent did not appear, personally or through an attorney, and did not contact the OAH to request that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend his license. / / / / Hearing Evidence On October 5, 2010, a severe hail storm hit the Phoenix area, damaging many roofs. After a general work slow down due to the economic recession, the aftermath of the storm offered contractors an opportunity for substantial work, especially since most of the damaged residences were insured against storm damage. At the time of the storm, Mr. Boggs was living in the residence on Quarterline Road and paying rent to his mother, Mrs. Boggs. At that time, title to the residence was still in Mrs. Boggs’ name. In January 2011, a man named Jack Perry approached homeowners in the neighborhood to solicit work to repair storm damaged roofs. Mr. Perry’s business card identified him as working in Principal Lead Sales Accounts for Respondent. Mrs. Boggs testified that because Mr. Perry seemed honest, she asked him to submit a proposal to repair her roof. On or about January 12, 2011, Jack Perry submitted a proposal to Mrs. Boggs to repair the roof on her house. The proposal showed Respondent’s residential and commercial license numbers[2] and the amount of $2,141.43. The proposal also noted “Steve Boggs – tenant & son.” Mrs. Boggs accepted the proposal and made a claim for the storm damage to her roof to her homeowner’s insurer, Farmer’s Insurance Company (“Farmer’s”). Farmer’s subsequently issued a check made payable to Mrs. Boggs, and on January 17, 2011, she issued a personal check made payable to Respondent in the amount of $2,141.43. The check was cashed. No work was ever done to repair the roof. Mrs. Boggs testified that she made numerous attempts to contact Mr. Perry and Respondent, but they did not return her calls or her money. Mrs. Boggs subsequently passed title to the house to Mr. Boggs. He testified that he cannot obtain reasonably priced homeowner’s insurance until the roof is repaired. According to the Registrar’s public website, on October 1, 2011, Respondent’s License No. B.148753-R was suspended for non-renewal, and the license remained suspended on the date of the continued hearing. Eleven complaints are pending against the license. In addition, the Registrar’s final orders in Case Nos. 2011-3432 and 2011-3625 revoked Respondent’s license, although as of this date, those revocations are not yet reflected on the Registrar’s public website. CONCLUSIONS OF LAW The administratively suspended and revoked status of Respondent’s license does not deprive Complainants of their right to prosecute their complaint against Respondent or prevent the Registrar from determining the merits of Complainants’ complaint.[3] This matter lies within the Registrar’s jurisdiction.[4] The Notice of the Hearing that the Registrar mailed to Respondent at his address of record was reasonable. The notice of the continued hearing that the OAH mailed to Respondent at his address of record also was reasonable, and it appears that Respondent actually received notice of the continued hearing.[5] Complainants bear the burden of proof to establish Respondent’s statutory violation by a preponderance of the evidence.[6] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[7] Applicable statute required Respondent’s qualifying party to be actively involved in supervising the performance of any contracting activity that Mr. Perry undertook after Respondent allowed Global Construction to use Respondent’s license.[8] Respondent failed to supervise Mr. Perry when he contracted to perform work for Complainants, cashed Mrs. Boggs’ check, and failed to perform any work under the authority of Respondent’s license. Therefore, Complainants established that Respondent violated A.R.S. § 32- 1154(A)(1) by abandoning the contract that Mr. Perry made using Respondent’s license.[9] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Registrar’s final order in this matter, the Registrar revoke Respondent Terryl Curtis Gibson dba Gibson and Gibson Development’s License No. B.148753-R. 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 five days from the date of that certification. Done this day, March 5, 2012.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] At the hearing, the Administrative Law Judge amended the caption to add Steve Boggs as party complainant because at the time Respondent contracted to perform the work at issue, Mr. Boggs was renting and was in the process of purchasing the house from his mother, Arlene Boggs, the original party complainant.

[2] The Registrar had issued License No. B-2.150016-C for general small commercial contracting to Respondent. [3] 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 . . . .” [4] See 32-1101 et seq. [5] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [6] 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). [7] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [8] See A.R.S. § 32-1127. This statute defines “responsible managing employee” and “qualifying party” in relevant part as follows:

The terms "responsible managing employee" and "qualifying party" shall, for the purpose of administering this chapter, be synonymous, and shall mean an employee who is regularly employed by the licensee and is actively engaged in the classification of work for which such responsible managing employee qualifies in behalf of the licensee. While engaged as a qualifying party for a licensee, the qualifying party shall not take other employment that would conflict with his duties as qualifying party or conflict with his ability to adequately supervise the work performed by the licensee. [9] 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.”

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