ALJDEC decisions subject to certification as final

2014A-2079-ROC · Registrar of Contractors · 2014-09-29

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: September 9, 2014 APPEARANCES: Jose Ruelus, the Qualifying Party, appeared on behalf of Respondent Eco-1 Exteriors LLC dba Eco-1 Construction. The Arizona Registrar of Contractors was represented by Assistant Attorney General Seth T. Hargraves. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) first issued License No. B.279301-R to Respondent Eco-1 Exteriors LLC dba Eco-1 Construction (“Respondent”) on June 9, 2012. The Registrar received a Complaint against Respondent from Leslie Buckley (“Homeowner”) alleging that Respondent failed to install a solar attic fan and a radiant barrier for the attic for which it had contracted and had been paid a $2,000.00 deposit. The Registrar issued a Citation and Complaint against Respondent, charging two possible violations of A.R.S. § 32-1154(A)(1). Respondent filed a timely written answer to the Citation and Complaint denying any violation. The Registrar referred the matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing. Hearing Evidence Respondent’s application for a license filed with the Registrar on May 29, 2012, indicated that Respondent was owned by three different entities, Deveron Group, LLC (“Deveron”) as a 58 percent owner; “EC” Energy Concept, LLC as a 25 percent owner; and Imperium Holdings, LLC as a 17 percent owner. See Exhibit 1. On or about July 5, 2012, Homeowner entered into a contract with Deveron for the purchase of a solar attic fan and radiant barrier. The total contract price was $2,980.00, and Homeowner paid a $2,000.00 deposit by check. That same day, Homeowner entered into a contract with Respondent for the installation of the solar attic fan and the radiant barrier. The total contract price was $1,020.00. Both contracts were signed by Kerry Carter as the representative for Deveron and Respondent. Respondent did not install the solar attic fan or radiant barrier for Homeowner. Respondent filed an Ownership/Personnel Change Form with the Registrar on October 19, 2012, indicating Deveron was no longer an owner of Respondent.

Mr. Ruelas testified that Deveron went out of business and the contract had been misplaced in its paperwork. Mr. Ruelas stated that Respondent had not received any funds from the project and was unaware the contract had been entered into until it received the complaint from the Registrar. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on September 26, 2014. Such prior License record reflects that Respondent’s License No. B.279301-R, in addition to the present complaint, had three previous complaints that resulted in discipline against the license, had a finite suspension from May 8, 2014, through August 6, 2014, was on probation from August 7, 2014, through August 6, 2015, and was presently suspended due to non-renewal. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. Respondent’s suspended license does not prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(C). 3. The Registrar 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. While Respondent may have been unaware of the contract, the contract was entered into by a representative of Respondent and Deveron, a majority owner of Respondent at the time of the contract. Therefore, Respondent was obligated to perform the work contracted. The Registrar 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).[1] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent Eco-1 Exteriors LLC dba Eco-1 Construction’s License No. B.279301-R. 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, September 29, 2014.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] 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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