ALJDEC decisions subject to certification as final

2014A-4753-ROC · Registrar of Contractors · 2015-11-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 6, 2015, at 1:00 p.m. APPEARANCES: Daniel Frank Biagianti (“Complainant”) appeared on his own behalf; Fix It 4 U Home Repair LLC (“Respondent”) failed to appear. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On or about November 3, 2008, the Arizona Registrar of Contractors (“the Registrar”) issued License No. B-3.250167-R to Respondent. Respondent’s address of record is 2249 W. Firethorn Way, Anthem, Arizona 85086-1220. According to the Registrar’s public website, Respondent’s license was suspended on December 5, 2014, for lack of bond. 2. On or about November 20, 2014, the Registrar received a complaint against Respondent from Complainant, alleging that Respondent had contracted to install new kitchen countertops at Complainant’s residence at 3926 W. Aster Dr., Phoenix, Arizona 85029, but that after Complainant paid Respondent $490.00 in cash for materials, Respondent had failed to perform any work. 3. After Respondent failed to resolve the matter, Complainant requested a hearing. On or about June 8, 2015, the Registrar issued a Citation against Respondent’s license, charging cause to revoke or suspend its license under A.R.S. §§ 32-1154(A)(1)[1] and 32-1154(A)(8).[2] 4. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent State agency, for an evidentiary hearing. 5. On September 25, 2015, the Registrar issued a Notice of Hearing, setting a hearing on November 6, 2015, at 1:00 p.m. at the OAH. The Notice of Hearing advised Respondent that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” 6. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. 7. Although the start of the hearing was delayed seventeen minutes, Respondent did not request to appear telephonically, did not appear through an authorized representative or attorney, and did not contact the OAH to request a continuance or that the start of the hearing be further delayed. Consequently, Respondent did not present any evidence to defend its license. Hearing Evidence 8. Complainant testified that on October 6, 2014, he hired Respondent to install laminate flooring and perform some painting at his house. Every day, he paid Respondent in cash and Respondent’s qualifying party/member, Tim Malone, initialed the statement of monies owed to indicate receipt of payment. Complainant testified that Respondent did a good job and that after the work was done, he still had enough money to replace his kitchen countertops. 9. Complainant testified that on October 15, 2014, Marlam Industries measured the countertops and Mr. Malone told Complainant that Respondent would need $490.00 for materials to begin the job. 10. On October 15, 2014, Complainant gave Respondent $490.00 in cash. Complainant wrote the notation, “pd $490.00 10/15/14 down payment of kitchen countertops” and Mr. Malone initialed the notation to acknowledge receipt of the down payment.[3] 11. Complainant testified that Mr. Malone disappeared after Respondent received the $490.00 down payment. Complainant testified that a day or so before November 19, 2014, he hired another contractor to replace his kitchen countertops. 12. Complainant testified that he tried to make a claim against Respondent’s bond with RLI Surety to recover the $490.00 that he had paid Respondent. Complainant submitted a letter from RLI Surety dated November 18, 2014, that stated in relevant part as follows: At this time, RLI elects to exercise its right under state statute A.R.S. § 32-1152(E) to require that suit be filed, and judgment obtained, against the contractor and surety (RLI) before payment is issued under the bond. Therefore, when and if suit is filed, RLI will respond accordingly. In the meantime, RLI must deny you claim against the bond as such is premature at this time.

Further, be advised that per A.R.S. § 12-1641, failure to bring the required lawsuit within sixty (60) days after your receipt of this notice will discharge the surety from all liability on the bond.[4]

13. On or about November 20, 2014, Complainant filed a lawsuit against Respondent in Small Claims Court in Maricopa County Justice Courts.[5] Complainant explained that he was not able to obtain a judgment against Respondent because he was unable to find Mr. Malone to serve Respondent with the lawsuit. 14. After the Registrar notified Respondent of Complainant’s complaint, Mr. Malone sent an email to Complainant, admitting that Respondent had abandoned the job because Mr. Malone had an alcohol problem, but stating that he had finally gotten treatment and had been in rehabilitation for five months.[6] Complainant testified that Mr. Malone offered $100.00 to settle the complaint and to make payments over time, but that Complainant did not accept the offer because he no longer trusted Mr. Malone. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction.[7] 2. The Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable. Respondent is deemed to have received notice of the hearing.[8] 3. Complainant bears the burden of proof to establish cause to suspend or revoke Respondent’s contractor’s license by a preponderance of the evidence.[9] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[10] 4. Complainant established that Respondent contracted to replace Complainant’s kitchen countertops, accepted a $490.00 cash down payment from Complainant, and then failed to either furnish any materials, perform any work, or return Complainant’s down payment. Therefore, Complainant has established cause to suspend or revoke Respondent’s license under A.R.S. §§ 32-1154(A)(1) and 32-1154(A)(8). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final order, the Registrar revoke Respondent Fix It 4 U Home Repair LLC’s License No. B-3.250167-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 five days from the date of that certification. / / / / Done this day, November 6, 2015.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, 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.” [2] A.R.S. § 32-1154(A)(8) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in a material respect by the licensee to complete a construction project or operation for the price stated in the contract, or in any modification of the contract.” [3] See the Registrar’s file, Intake Complaint Submittal2.pdf at 2. [4] Complainant’s Exhibit 2. [5] See the Registrar’s file, Intake Additional Docs Submitted3.pdf. [6] See Complainant’s Exhibit 1. [7] See A.R.S. §§ 32-1131 to 32-1140. [8] See A.R.S. § 41-1092.04; A.R.S. § 41-1092.05(D). [9] See 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). [10] Morris K. Udall, Arizona Law of Evidence § 5 (1960).

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