ALJDEC decisions subject to certification as final

2012A-4357-ROC · Registrar of Contractors · 2013-03-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: February 11, 2013 APPEARANCES: Complainant Joseph Mosca appeared on his own behalf. A representative for Respondent Reed Daniel Companies LLC did not appear. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-1.224447-D to Respondent Reed Daniel Companies LLC (“Respondent”). The Registrar received a Complaint against Respondent from Joseph Mosca (“Complainant”) alleging that Respondent failed to paint and install a bedroom door for which it had billed and been paid. Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging a possible violation of A.R.S. § 32- 1154(A)(1). On December 18, 2012, Respondent filed a timely written answer to the Citation and Complaint and submitted a copy of an invoice showing the door had been ordered. Respondent stated that once the door was received, he would apply two coats of paint and arrange for installation. The Registrar referred the matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing. The Registrar issued a Notice of Hearing, setting a hearing on February 11, 2013, at 1:00 p.m. at the OAH. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” A hearing was held on February 11, 2013. Complainant testified and submitted one exhibit. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear, through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Hearing Evidence Respondent had been doing various jobs for Complainant on a rental home. On December 14, 2011, Respondent submitted an invoice to Complainant, which included the item “Remove and replace upstairs bedroom door (with paint) $145.00.” Complainant paid the invoice on December 15, 2011. Respondent attempted to replace the door, but the door was the wrong size and a different door had to be ordered. After that, Respondent failed to respond to numerous telephone calls and emails from Complainant. On June 27, 2012, the tenant emailed Respondent stating, “I haven’t heard from you for quite awhile [sic]. We need to set up a time to install the door. I’ve lived here 6 months now, I think it’s time. Let me know when would be a good time for you.” Respondent replied to the tenant that the door had been painted for quite some time. On September 3, 2012, Complainant again emailed Respondent seeking to have the work completed before filing the Complaint. Respondent did not reply. In the response to the Citation and Complaint, Respondent included an invoice showing the door was ordered on December 16, 2012. Respondent stated it would take two weeks to receive the door and then he would have to paint it and arrange for installation. On February 8, 2013, Respondent emailed Complainant and the tenant stating that the door was ready for installation. As of the date of the hearing, the door had not been installed. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on March 1, 2013. Such prior License record reflects that Respondent’s License No. KB-1.224447-D was current. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at the address on its written answer were reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D). 3. Complainant bears the burden of proof to establish Respondent’s statutory violation 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). 4. Complainant established 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). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Respondent Reed Daniel Companies LLC’s License No. KB-1.224447-D until it has performed in a professional and workmanlike manner the work as outlined in the contract. 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 performed in a professional and workmanlike manner the work outlined in the contract, the Registrar should not suspend Respondent’s license but, instead, shall close Complainant Joseph Mosca’s Complaint in Case No. 2012-4357. 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, March 1, 2013.

/s/ Tammy L. Eigenheer 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