ALJDEC decisions subject to certification as final

2012A-5488-ROC · Registrar of Contractors · 2013-06-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: June 4, 2013, at 8:00 a.m. APPEARANCES: Complainants Robin and Fred Wachter appeared on their own behalf; Respondent Ingenious LLC dba Ingenious Remodeling did not appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT 1. On or about December 14, 2010, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B-3.269987-R to Ingenious LLC dba Ingenious Remodeling (“Respondent”). Respondent’s address of record is 4910 East Elliot Road, Suite 100, Phoenix, Arizona 85044-4416. 2. On or about November 8, 2012, Robin and Fred Wachter (“Complainants”) filed a Complaint against Respondent with the Registrar alleging that Respondent had contracted to replace flooring and to remodel the kitchen of their house at 2745 East Brookwood Court, Phoenix, Arizona 85048, but abandoned the job after Complainants had paid it $28,109.30. 3. The Registrar forwarded a copy of Complainants’ Complaint to Respondent at its address of record. Respondent’s qualifying party and member, Brian Bondi, filed a preliminary response to Complainants’ Complaint that did not dispute that Respondent had contracted to perform work for Complainants and had abandoned the job after receiving payment. Mr. Bondi alleged that the contract was made while Respondent’s license was valid, that Respondent was in the process of dissolving its business, and that Complainants were “eligible for the recovery fund that I paid into.” 4. After Respondent failed to resolve Complainants’ Complaint, they requested that the Registrar issue a citation against its license. The Registrar issued a Citation and Complaint charging Respondent with a possible violation of A.R.S. § 32-1154(A)(1). The Registrar mailed the Citation and Complaint to Respondent at its address of record and at P.O. Box 59023, Phoenix, Arizona 85076-9023. 5. Respondent filed a timely written answer to the Citation and Complaint denying any statutory violation. 6. The Registrar referred Complainants’ Complaint to the Office of Administrative Hearings (“the OAH”), an independent agency, for an evidentiary hearing. On or about April 26, 2013, the Registrar issued a Notice of Hearing, setting a hearing at the OAH on June 4, 2013, at 8:00 a.m. The Registrar mailed copies of the Notice of Hearing to Respondent at its address of record and at the P.O. Box to which the Registrar had mailed the Citation and Complaint. 7. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the start of the duly noticed hearing was delayed fifteen minutes to allow Respondent additional travel time, Respondent did not appear, through an authorized member, employee, or 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 its license. 8. Complainants appeared at the duly noticed hearing and presented evidence of the following: (1) Respondent submitted a proposal to Complainants to perform work for the price of $39,455.95; (2) On or about March 31, 2012, the parties signed a Remodeling Agreement under which Respondent agreed to perform work that it previously proposed, with 40% of the contract amount, or $15,787.38, due upon the signing of the contract; (2) Complainants paid Respondent $15,787.38; (3) After Respondent’s employee prepared plans for the remodeling project, the contract amount was increased to $51,777.87 and the initial required payment was increased by $12,321.92; (4) Complainants paid Respondent an additional $12,321.92; (5) Although Respondent ordered the kitchen cabinets and flooring for Complainants’ project, it never paid for or picked up the cabinets or flooring; (6) Respondent never performed any construction work at Complainants’ house; and (7) Respondent never returned any of Complainants’ money. 9. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on June 4, 2013. Such prior License record reflects the following: (1) On July 25, 2012, Respondent’s License No. B-3.269987-R was suspended until it complied with a disciplinary order in an unrelated case; (2) On December 15, 2012, Respondent’s license was suspended for lack of bond; (3) On January 1, 2013, Respondent’s license was suspended for non-renewal; (4) On January 3, 2013, Respondent’s license was revoked as discipline in a second unrelated case; (5) On April 5, 2013, Respondent’s license was revoked as discipline in a third unrelated case; (6) On May 15, 2013, Respondent’s license was revoked as discipline in a fourth unrelated case; (7) On May 22, 2013, Respondent’s license was revoked as discipline in a fifth unrelated case; and (8) Three complaints are pending against Respondent’s license. CONCLUSIONS OF LAW 1. The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record and at another address were reasonable and Respondent is deemed to have received notice of the hearing.[1] 2. The 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.[2] This matter lies within the Registrar’s jurisdiction. 3. Complainants bear the burden of proof to establish that Respondent violated the charged statute by a preponderance of the evidence.[3] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[4] 4. Complainants established that Respondent abandoned the contract to perform work at their house in violation of A.R.S. § 32-1154(A)(1).[5] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order in Complainants Robin and Fred Wachter’s Complaint in Case No. 2012-5488, Respondent Ingenious LLC dba Ingenious Remodeling’s License No. B-3.269987-R shall be revoked. 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, June 4, 2013.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [2] 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 . . . .” [3] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119; see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [4] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [5] 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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