ALJDEC decisions subject to certification as final

2012A-4341-ROC · Registrar of Contractors · 2013-02-25

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 5, 2013 APPEARANCES: Robert Karp appeared on his own behalf. Jade Gail Floyd appeared on her own behalf. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ The Arizona Registrar of Contractors (“the Registrar”) issued License No. C- 61.277725-R to Jade Gail Floyd doing business as J & D Rock Star Services (“Respondent”). The Registrar received a Complaint against Respondent from Robert Karp and LeAnne Dreyer (collectively “Complainants”) regarding a purported contract to install a new roof on a cabin in Concho, Arizona. Complainants requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(1) and A.R.S. § 32-1154(A)(15). Respondent filed a timely written answer to the Citation and Complaint, denying any statutory violations. The Registrar referred the matter to the Office of Administrative Hearings, an independent state agency, for an evidentiary hearing, which was held on February 5, 2013. Hearing Evidence Mr. Karp requested an estimate to have a new roof installed on a cabin in Concho, Arizona for an insurance claim. Donald Floyd, the husband of Respondent, went to the cabin and prepared an estimate for Mr. Karp. The estimate indicated a total cost of $7,700.00 for a new roof. The estimate was printed on letterhead for “DF Maintenance” with an “ROC #277725” and instructed customers to “Make all checks payable to Don Floyd.” Mr. Floyd signed the estimate near the total. Mr. Karp testified that he gave Mr. Floyd $2,900.00 in cash as a down payment for the roof project. The estimate presented by Mr. Karp included a handwritten note above Mr. Floyd’s signature that read “paid $2900.00 CASH.” It was Mr. Karp’s testimony that Mr. Floyd wrote that as a receipt for the cash down payment. Respondent testified she was never awarded the roofing job. Rather, Mr. Karp used the estimate to file an insurance claim. Respondent denied receiving any cash down payment from Mr. Karp. Respondent testified she did not accept cash payments from customers and typically required a 50 percent down payment. Therefore, Mr. Karp’s allegation that he paid Mr. Floyd $2,900.00 in cash was inconsistent with Respondent’s normal practice of requiring a down payment by check or credit card of $3,850.00 for a $7,700.00 job. Mr. Karp also referenced paying Mr. Floyd for working on an air conditioner unit with two separate checks, one before and one after the date he reportedly gave Mr. Floyd the cash down payment. Therefore, it was not Mr. Karp’s normal practice to pay Mr. Floyd in cash. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Complainant bears the burden of proof to establish Respondent’s statutory violations by a preponderance of the evidence. See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). “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. Complainants failed to establish that they had entered into a contract with Respondent, had paid Respondent a $2,900.00 cash deposit on a contract, and Respondent subsequently failed to perform the contract. Therefore, Complainants did not establish that Respondent abandoned the contract or refused to perform after submitting a bid on work without legal excuse for the abandonment or refusal in violation of A.R.S. § 32-1154(A)(1). 4. The estimate provided to Mr. Karp indicated the company providing the estimate was DF Maintenance with an “ROC #277725.” However, the Registrar issued License No. C-61.277725-R to Respondent. Therefore, Complainants established that Respondent acted in the capacity of a contractor in a name other than as set forth upon the license in violation of A.R.S. § 32-1154(A)(15). 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 suspend License No. C-61.277725-R previously issued to Respondent Jade Gail Floyd dba J & D Rock Star Services until Respondent corrects its forms to correctly identify Respondent’s business name and license number. It is further recommended that if on or before the effective date of the Registrar’s Order, Respondent provides written proof that is acceptable to the Registrar that it has corrected its forms to correctly identify Respondent’s business name and license number, the Registrar should not suspend Respondent’s license but, instead, shall close Complainants Robert Karp and LeAnne Dreyer’s Complaint in Case No. 2012-4341. 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 25, 2013.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors

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