ALJDEC decisions subject to certification as final

2012A-4839-ROC · Registrar of Contractors · 2013-07-02

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 12, 2013

APPEARANCES: Complainant appeared on his own behalf; no one appeared on behalf of Respondent.

WITNESSES: David Sebastian

ADMINISTRATIVE LAW JUDGE: Eric A. Bryant _____________________________________________________________________

Complainant brings this action claiming abandonment of a contract to remove and replace shutters at Complainant’s home. As noted above, Respondent did not appear at the hearing. Therefore, Complainant’s evidence is uncontested. This tribunal entered the complaint file received from the Registrar of Contractors (Registrar or ROC) into the record. Complainant presented evidence and testified. Based upon the entire record, the Administrative Law Judge makes the following Findings of Fact, Conclusions of Law, and Recommended Order finding abandonment and another violation, and recommending provisional revocation of the license. FINDINGS OF FACT 1. Respondent is the holder of License No. C65R.154978-R, a specialty residential contracting license issued by the Registrar. That license authorizes Respondent to perform window treatments for residential properties. Matthew James Tardy is the company’s Qualifying Party. The license expired on June 1, 2013. 2. On June 1, 2012, Respondent’s license was automatically suspended by law for non-renewal. Respondent was required to renew the license before that date and did not do so. In addition, Respondent was not allowed to do business as a contractor while the license was suspended. 3. On August 7, 2012, Respondent entered into a contract with Complainant to replace Complainant’s shutters. The contract price was $1,400.00 and Complainant paid $700.00 to Respondent on that date. The shutters were supposed to be installed by September 24, 2012. 4. Respondent never did any work on the contract. After waiting a few months for Respondent to do the work, Complainant became suspicious and discovered Respondent’s license suspension. Complainant informed Respondent that he wanted his money back, and Respondent agreed, but Complainant did not receive a refund. In October 2012, Respondent sent Complainant a check for a partial refund ($320.00) but Complainant did not cash the check. 5. Respondent did not appear at hearing to contest the evidence or allegations. CONCLUSIONS OF LAW 1. The burden of proof at an administrative hearing is generally upon a complainant.[1] Further, the standard of proof at hearing is by preponderance of the evidence.[2] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statutes cited in the Citation and Complaint.[3] Complainant has met that burden. 2. The Citation and Complaint alleges violations of A.R.S. § 32- 1154(A)(1) (prohibiting abandonment of a project) and A.R.S. § 32- 1154(A)(18) (prohibiting contracting while a license is suspended). There is no question that Respondent violated both those provisions. The facts are clear. 3. Respondent entered into a contract with Complainant while its license was suspended. Then, Respondent failed to return the money that Complainant had given him for work that was never done or even started. Respondent is thus found to have violated A.R.S. § 32-1154(A)(1) and A.R.S. § 32-1154(A)(18). 4. Administrative notice is taken of Respondent’s prior license record as reflected on the ROC’s public website on July 2, 2013. That prior record shows that Respondent has held the license since May 2000 and has never been disciplined. That is a good record. However, the license was administratively suspended in June 2012 for non-renewal and in October 2012 for lack of bond. As noted, it has expired on June 1, 2013. Pursuant to A.R.S. § 32-1154(C), the expiration of a license does not deprive the ROC or this tribunal of jurisdiction and does not render the ROC powerless to discipline the license further. 5. Respondent should return the full $700.00 that was collected from Complainant. Because Respondent’s license was suspended at the time of contract, Complainant is not eligible for payout from the Residential Contractors’ Recovery Fund. The Administrative Law Judge concludes that Respondent’s license should be provisionally revoked pending the payment of restitution to Complainant, thereby offering Respondent the chance to keep his license from having a revoked status if Respondent pays Complainant. Thus, even though the license is currently expired, provisional revocation is warranted. Respondent can pay the relatively small amount of restitution and keep the license status of “expired” or not pay restitution and have a license status of “revoked.” RECOMMENDED ORDER IT IS RECOMMENDED that License No. C65R.154978-R, held by Southwest Designs of Arizona Window Coverings Inc., be revoked beginning the effective date of the Registrar’s Order unless the Registrar receives written proof that Respondent has paid Complainant $700.00, and the Registrar of Contractors 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 2012-4839 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, July 2, 2013.

/s/ Eric A. Bryant Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949). [2] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985). [3] 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