ALJDEC decisions subject to certification as final

2015A-2135-ROC · Registrar of Contractors · 2015-12-08

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 25, 2015 APPEARANCES: Complainants Bryan and Judith Hubbard appeared on their own behalf. Respondent Murray and Sons Construction LLC did not appear. ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) first issued License No. 274132 to Respondent Murray and Sons Construction LLC (“Respondent”) on October 12, 2011. This license was class CR61 for Carpentry, Remodeling and Repair.[1] The Registrar received a Complaint against Respondent from Bryan and Judith Hubbard (“Complainants”) alleging that Respondent failed to perform any work on and had cancelled a patio landscaping project for which it had contracted and been paid a $3,512.03 deposit. Complainant requested a hearing. The Registrar issued a Citation and Complaint against Respondent, charging possible violations of A.R.S. § 32- 1154(A)(1) and A.R.S. § 32-1154(A)(16). 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. The Registrar issued a Notice of Hearing, setting a hearing at 8:00 a.m. on November 25, 2015, at the OAH. The Registrar mailed a copy of the Notice of Hearing to Respondent at its address of record. The Notice of Hearing informed the parties that “[f]ailure to attend the scheduled hearing is likely to result in an adverse ruling against you.” A hearing was held on November 25, 2015. Complainants testified and submitted two exhibits. Respondent did not request to appear telephonically and did not request that the hearing be continued. Although the start of the hearing was delayed 20 minutes, Respondent did not appear, through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. Hearing Evidence On or about April 3, 2015, Complainants entered into a contract with Respondent for a backyard patio and landscaping project with a total contract price of $10,642.50. The contract included Respondent’s license number, specifying “ROC. 274132”. At that time they accepted the contract, Complainants paid Respondent $3,512.03 as a deposit. Complainants testified that from the start, the project was delayed due to inability to obtain material. They said that Respondent would repeatedly schedule to do the work and then cancel before any work was done, ultimately demanding more money. During this timeframe, Respondent did drop off materials and a dumpster to facilitate its contracted work. Thereafter, Complainants discovered that Respondent’s license was not valid for landscape work and inquired about it. According to Judith Hubbard, when she questioned Paul La Chance of Respondent regarding how Respondent could legally perform contracting work without a valid license to do so, he told her that there were ways to work around that. Respondent ultimately informed Complainants that it was cancelling their project and would refund their money if they would agree to not file a complaint with the Registrar. Complainants filed a complaint with Registrar and also sent Respondent a letter requesting a refund. No refund was ever received by Complainants. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on November 25, 2015. Such prior License record reflects that there are five open complaints against Respondent, eight prior complaints against Respondent that resulted in discipline of Respondent’s license and one complaint that had been resolved, settled or withdrawn prior to hearing. The record reflects that Respondent’s License No. 274132 was revoked (seven times) on November 19, 2015. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-1101 et seq. 2. Respondent’s revoked license does not deprive Complainants of their right to prosecute their complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D). 3. The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41- 1092.05(D). 4. Complainant 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). 5. Complainants 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).[2] 6. The undisputed evidence at hearing established that Respondent contracted to perform landscaping work that was outside the scope of its class CR61 Carpentry, Remodeling and Repair license. Therefore, Complainants established that Respondent violated A.R.S. § 32- 1154(A)(16).[3] RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent Murray and Sons Construction LLC’s License No. 274132. 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, December 8, 2015.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] Administrative notice is taken of Respondent’s licensing history, available on the Registrar’s website and reviewed on November 25, 2015. [2] 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.” [3] [4] A.R.S. § 32-1154(A)(16) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[k]nowingly contracting beyond the scope of the license or licenses of the licensee.”

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