ALJDEC decisions subject to certification as final

2012A-4178-ROC · Registrar of Contractors · 2012-12-18

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: December 11, 2012, at 1:00 p.m. APPEARANCES: Michael Alper (hereinafter “Complainant”) appeared on his own behalf. Respondents Artistic Concrete Resurfacing LLC (hereinafter “Artistic”), License No. C-5.219571-R and License No. L-5.240881-C appeared through their qualifying party, Karen Marie Christensen. 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. Artistic is the holder of License No. C-5.219571-R issued by the Registrar of Contractors. 2. Artistic is also the holder of License No. L-5.240881-C issued by the Registrar of Contractors. 3. This is a residential matter where Complainant entered into a construction agreement with Artistic for removal of existing tile and carpeting and the application of concrete resurfacing work at Complainant’s residence for total sum of $4,700.00. Pursuant to the terms of Artistic’s written proposal, Complainant paid Artistic a deposit in the amount of $2,350.00. 4. Artistic then provided some color samples to Complainant. When Complainant stated that none of the color samples were satisfactory, Artistic abandoned the construction project. 5. Complainant then repeatedly requested Artistic to return to his residence and either complete the construction project or return his money to him. 6. When Artistic failed to comply with Complainant’s repeated requests, Complainant filed a formal Complaint against Artistic with the Registrar of Contractors. 7. Pursuant to the filing of the formal Complaint, an assigned Agency Inspector, Mike Nieves (hereinafter “Inspector Nieves”), conducted an onsite inspection. Inspector Nieves issued a written Corrective Work Order on January 19, 2012, directing Artistic to reach a financial settlement with Complainant. 8. The Corrective Work Order provided, in pertinent part, as follows: Contractor to correct the following by appropriate means [:] License #219571 issued to Artistic Concrete Resurfacing LLC has expired on 07/11/11 and [it] cannot do nor sub-contract the recommended corrective work listed in this directive.

The only available remedy under this license status, if appropriate, would be financial settlement.

1. We gave a deposit of $2,350.00 for concrete resurfacing: Project has not been started, complete contract.

4. None of his 6 samples matched: Provide correct color. ….

9. Inspector Nieves testified that he contacted Complainant on December 4, 2012, and was informed that nothing had changed. Inspector Nieves stated that copies of the Complaint, the Corrective Work Order, and copies of all other correspondence had been mailed to Artistic’s address of record.[1] 10. Artistic’s Qualifying party, Karen Marie Christensen (hereinafter “Ms. Christensen”), testified that John Hastey (hereinafter “Mr. Hastey”) was her ex-boyfriend and a former employee of Artistic. Ms. Christensen acknowledged that she had been in Complainant’s residence but testified that she was not present when the contract was signed. Ms. Christensen stated that she was unaware that Mr. Hastey had entered into a contract with Complainant utilizing Artistic’s name and license numbers. Ms. Christensen testified that she and Mr. Hastey had an “outing” and were no longer together. Ms. Christensen stated that she was no longer interested in retaining a contractor’s license.[2] 11. Complainant testified that Mr. Hastey and Ms. Christensen were his neighbors. Complainant stated that Mr. Hastey and Ms. Christensen were living together as a married couple and that both were present when the construction agreement was signed on October 16, 2011. Complainant testified that both Mr. Hastey and Ms. Christensen directed Complainant’s wife, Rhonda Segerman, to make the deposit check payable to John Hastey.[3] 12. Complainant’s testimony is found to be credible. 13. Rhonda Segerman (hereinafter “Ms. Segerman”) testified that she and Complainant provided contact information to Artistic at a home show in Tucson, Arizona. Ms. Segerman stated that Artistic then arranged a meeting at Complainant’s residence. Ms. Segerman testified that Mr. Hastey and Ms. Christensen were both present for the meeting. Ms. Segerman stated that Mr. Hastey and Ms. Christensen directed her to make the deposit check out to John Hastey rather than to Artistic.[4] 14. Ms. Segerman’s testimony is found to be credible. 15. Administrative notice is taken of Artistic’s prior license record as reflected on the Registrar of Contractors’ public website on December 12, 2012. Such prior license record reflects that License No. C-5.219571-R of Artistic was suspended by the Registrar of Contractors for non-renewal from July 1, 2010, through June 30, 2011, and was suspended by the Registrar of Contractors for lack of bond on March 10, 2011. License No. C-5.219571-R of Artistic expired on July 1, 2011. 16. Administrative notice is taken of Artistic’s prior license record as reflected on the Registrar of Contractors’ public website on December 12, 2012. Such prior license record reflects that License No. L-5.240881-C of Artistic was suspended by the Registrar of Contractors for non-renewal on June 1, 2012. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing falls to the party asserting a claim, right, or entitlement and the standard of proof on all issues in these matters is by a preponderance of the evidence. See A.A.C. R2-19-119. 2. A preponderance of the evidence is “such proof as convinces the trier of fact that the contention is more probably true than not.” Morris K. Udall, Arizona Law of Evidence § 5 (1960). 3. The scope of License No. C-5.219571-R of Artistic is restricted to the application of residential concrete coatings.[5] 4. The scope of License No. L-5.240881-C of Artistic is restricted to the application of commercial concrete coatings.[6] 5. Artistic entered into a construction agreement with Complainant and accepted a deposit of $2,350.00 from Complainant. Artistic performed no construction work at Complainant’s residence and abandoned the construction project. Artistic refused to return Complainant’s deposit to him. This Tribunal concludes that Artistic violated the charged provision of A.R.S. § 32-1154(A)(1).[7] 6. The written construction agreement provided by Artistic for Complainant’s construction project does not contain Artistic’s contractor’s license number with the acronym “ROC.” This Tribunal concludes that Artistic violated the charged provision of A.R.S. § 32- 1154(A)(13),[8] namely A.R.S. § 32-1124(B).[9] 7. Artistic knowingly contracted to perform tile and carpet removal at Complainant’s residence. This Tribunal concludes that Artistic violated the charged provision of A.R.S. § 32-1154(A)(17).[10] 8. Artistic solicited residential construction work and entered into a construction agreement with Complainant while License No. C-5.219571-R of Artistic was under suspension. This Tribunal concludes that Artistic violated the charged provision of A.R.S. § 32-1154(A)(18).[11] RECOMMENDed orderS

Docket No. 2012A-75-ROC

In view of the foregoing, it is recommended that License No. C- 5.219571-R of Artistic shall be revoked on the effective date of this Order. It is further recommended, in addition to the above-provided penalties, if any, that Artistic pay the sum of $999.00 to the Registrar of Contractors by way of a civil penalty pursuant to A.R.S. § 32- 1154(E).[12] The failure by Artistic to pay the entire amount of the aforesaid civil penalty, on or before 30 days following the effective date of the Order entered in this matter, shall result in the automatic revocation of Artistic contractor’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Artistic, as defined in A.R.S. § 32-1101(A)(5), unless payment of any outstanding prior civil penalty is tendered.

Docket No. 2012A-4178-ROC

In view of the foregoing, it is recommended that License No. L- 5.240881-C of Artistic shall be revoked on the effective date of this Order.

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 18, 2012.

/s/ M. Douglas Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

----------------------- [1] 12/11/12 Hearing Record (hereinafter “H.R.”) at 17:55-20:18. [2] H.R. at 30:27-34:53. [3] H.R. at 28:00-28:58. [4] H.R. at 29:17-30:25. [5] A.A.C. R4-9-103. [6] A.A.C. R4-9-102. [7] A.R.S. § 32-1154(A)(1) includes among the grounds for disciplinary action against a contractor’s license, abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal. [8] A.R.S. § 32-1154(A)(13) includes among the grounds for disciplinary action against a contractor’s license, failure in any material respect to comply with this chapter. [9] A.R.S. § 32-1124(B) provides as follows: Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee upon demand. The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 13, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public.

[10] A.R.S. § 32-1154(A)(17) includes among the grounds for disciplinary action against a contractor’s license, knowingly contracting beyond the scope of the license or licenses of the licensee. [11] A.R.S. § 32-1154(A)(18) includes among the grounds for disciplinary action against a contractor’s license, contracting or offering to contract or submitting a bid while the license is under suspension or while the license is on inactive status. [12] A.R.S. § 32-1154(E) provides, in pertinent part, as follows:

The registrar shall impose a civil penalty of not to exceed one thousand dollars on a contractor for each violation of subsection A, paragraph 18 of this section. Civil penalties collected pursuant to this subsection shall be deposited in the residential contractors' recovery fund. The failure by the licensee to pay any civil penalty imposed under this subsection results in the automatic permanent revocation of the license thirty days after the effective date of the order providing for the civil penalty. No future license may be issued to an entity consisting of a person associated with the contractor, as defined in section 32- 1101, subsection A, paragraph 5, unless payment of any outstanding civil penalty is tendered.

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