ALJDEC decisions subject to certification as final

2014A-2372-ROC · Registrar of Contractors · 2014-11-14

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: October 29, 2014

APPEARANCES: Seth Hargraves, Assistant Attorney General representing the Registrar of Contractors; Adam Stafford, Registrar of Contractors Assistant Chief Counsel; Jose Gill, Registrar of Contractors Attorney; Steve Lawton, Registrar of Contractors Investigator; Candelario and Griselda Alvarez, Complainants.

ADMINISTRATIVE LAW JUDGE: Dorinda M. Lang _____________________________________________________________________

FINDINGS OF FACT 1. After receiving a complaint regarding Respondent from Candelario and Griselda Alvarez, the Registrar of Contractors (the “Registrar”) notified Respondent of the allegations against it. The complaint alleged that the Alvarezes paid Respondent $4,603.34 to repair their roof, but he did no work on it. 2. Respondent did not respond to the complaint, so Investigator Steve Lawton conducted a job site inspection on behalf of the Registrar, after which Inspector Lawton issued a Corrective Work Order. When Respondent took no action on the Corrective Work Order, Inspector Lawton took pictures of the roof and sent them to the Registrar’s legal department. Inspector Lawton testified as to the above facts at the hearing. He also testified that Respondent’s contract did not contain the minimum elements required by law in that it did contain an estimated date of completion and it did not contain the required warranty information in a minimum of 10 point bold type.[1] 3. Jose Gill, the Registrar’s staff attorney, testified that Respondent’s license was issued on November 30, 2010, but it was revoked recently in another case. 4. In closing, the Registrar argued that Respondent’s licenses should be revoked and a $500.00 civil penalty should be imposed against Respondent. CONCLUSIONS OF LAW 1. This matter is within the jurisdiction of the Registrar of Contractors pursuant to Arizona Revised Statute (“A.R.S.”) §§ 32- 1104(A)(4), 32-1154(B) and 32-1156. 2. The Citation and Complaint issued by the Registrar of Contractors in this matter alleged potential violations of A.R.S. § 32- 1154(A)(1)(abandonment), (12)[2](failure to comply with statute, specifically A.R.S. § 32-1158(B)), (22)[3](failure to take appropriate corrective action) and (20)(having a name on the license that is also named on a suspended or revoked license). 3. A.R.S. § 32-1154(A)(1) provides grounds for suspension or revocation of a contractor’s license for abandonment of a contract. In this case, it was established that Respondent had a contract with the Alvarezes and that he accepted payment, then performed no work. 4. A.R.S. § 32-1154(A)(12) provides grounds for suspension or revocation of a contractor’s license for failure to comply with provisions of that chapter (of the Arizona contracting statutes). A.R.S. § 32-1158(B) requires contractors to include each of a list of elements in their contracts. One of the elements requires contractors to include an estimate of the date of completion. Another element requires them to include certain warranty information to be printed in a minimum 10 point font and in bold typeface. The evidence presented by the Registrar in this matter established that Respondent’s contracts do not contain the required elements of a contract pursuant to A.R.S. § 32-1158(B). 5. A.R.S. § 32-1154(A)(22) provides grounds for suspension or revocation of a contractor’s license for failure to take appropriate corrective action on a Corrective Work Order without valid justification and within a reasonable period of time. The Registrar established that Respondent failed to take appropriate action after the Corrective Work Order was issued in this case. 6. A.R.S. § 32-1154(A)(20) provides grounds for suspension or revocation of a contractor’s license for “[h]aving a person named on the license who is or was named on any other license in this state of in any other state that is under suspension or revocation for any act or omission that occurs while the person is or was named on the license unless the prior revocation was based solely on a violation of this paragraph.” In this case, the Registrar proposes to revoke the same two licenses that were revoked in another case. To consider this a violation of A.R.S. § 32- 1154(A)(20) would lead to an absurd result in which a license could be revoked innumerable times based on its first revocation. Therefore, it was not established that the proper interpretation of the statute would allow for an additional revocation in this matter. 6. Because Respondent failed to appear at the hearing, he was unable to establish any defenses to the above evidence and allegations. Based on the evidence presented by the Registrar at hearing, it is appropriate to find that Respondent violated A.R.S. §§ 32-1154(A)(1), (12), and (22). 7. Considering the seriousness of the violations and Respondent’s failure to do any work at all on the contract or to show any sign of good faith in this matter, it has been established that revocation of Respondent’s licenses is appropriate. 8. The Registrar also recommended a $500.00 civil penalty based on A.R.S. § 32-1154(E), which provides as follows: E. The registrar may impose a civil penalty of not to exceed five hundred dollars on a contractor for each violation of subsection A, paragraph 22 of this section. Civil penalties collected pursuant to this subsection shall be deposited in the residential contractors' recovery fund. The failure by the licensee to pay any civil penalty imposed under this subsection results in the automatic revocation of the license thirty days after the effective date of the order providing for the civil penalty. No future license may be issued to an entity consisting of a person, as defined in section 32-1101, subsection A, paragraph 6, who is associated with the contractor, unless payment of any outstanding civil penalty is tendered. 9. Because the Registrar established a violation of A.R.S. § 32- 1154(A)(22) and Respondent was not present to establish any mitigating factors, the evidence supports the imposition of a $500.00 civil penalty against Respondent. RECOMMENDED DECISION In view of the foregoing, it is recommended that Respondent’s License Nos. B- License Nos. CR61.269278-d & R39R.270939-R shall be revoked on the effective date of the Order entered in this matter. It is further recommended that Respondent be required to pay the sum of $500.00 in certified funds for its violation of A.R.S. § 32-1154(A)(22) pursuant to A.R.S. § 32-1154(E).

If the Director of the Office of Administrative Hearings certifies this Administrative Law Judge Decision, the effective date of the order will be forty (40) days from the date of certification.

Done this day, November 14, 2014.

/s/ Dorinda M. Lang Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors ----------------------- [1] See Exhibit 3, pages 3, 4, and 5. [2] Formerly A.R.S. § 32-1154(A)(13). [3] Formerly A.R.S. § 32-1154(A)(23).

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