ALJDEC decisions subject to certification as final

2015A-2390-ROC · Registrar of Contractors · 2015-07-22

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: July 2, 2015 APPEARANCES: The Arizona Registrar of Contractors (“Registrar”) was represented by Assistant Attorney General John R. Tellier. Respondent B and L Carpet Stores Inc. did not appear through an authorized representative.[1] ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Background and Procedure 1. On November 30, 1995, the Registrar issued License Nos. CR-8.110373-D and CR-8.110374-D. B and L Carpet Stores Inc.’s address of record on both licenses is 7485 East 1st Ste H, Prescott Valley, Arizona 86314-2241. 2. Between April 10, 2015, and May 28, 2015, the Registrar received 19 complaints from homeowners against Respondent. All of the complaints alleged abandonment except one that alleged poor workmanship. 3. On June 8, 2015, the Registrar issued an Order of Summary Suspension finding that “the public health, safety, and welfare imperatively require emergency action” because Respondent was “the subject of 18 unresolved and substantiated abandonment complaints in the last two months” and had been “entering into construction contracts with new customers and accepting deposits after Respondent had already abandoned the construction projects of existing customers.” 4. The Registrar referred the matter to the Office of Administrative Hearings (“the OAH”), an independent state agency, for an expedited evidentiary hearing. 5. On June 8, 2015, the Registrar issued a Citation and Complaint/Notice of Hearing, setting the hearing at the OAH at 8:00 a.m. on July 2, 2015. The Registrar sent the Citation and Complaint/Notice of Hearing to Respondent at its address of record. 6. An evidentiary hearing was held on July 2, 2015. Respondent did not request that its representative be allowed to appear telephonically. Although the hearing did not start until approximately 8:30 a.m. and did not conclude until approximately 10:15 a.m., Respondent did not appear, through an authorized member, officer, employee, or attorney, or 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. 7. The Registrar submitted 39 exhibits and presented the testimony of 16 witnesses: 1) Steve Lee Bardin, 2) Opal Glenna Cloin, 3) Gary Allen Rydberg, 4) Sarah Nicole Coelho, 5) Kathleen M. Houchin, 6) David Summit, 7) Dawn Eileen VanBarriger Geddes, 8) Charles D. Poole, 9) Julie Anne Auwen, 10) Freddie W. Cnossen, 11) Cindy Kay Davis, 12) Ralph R. Girardi, 13) Peter Mechanick, 14) Jan Bear, 15) Adam Stafford, and 16) Jim Dimond. Hearing Evidence The Homeowners’ Complaints Kent Logan Coleman’s Complaint (Case No. 2015-1580) 8. On or about April 10, 2015, Kent Logan Coleman filed a complaint with the Registrar against Respondent alleging abandonment of its March 7, 2015 contract to install countertops at Mr. Coleman’s home. According to the complaint, Mr. Coleman had paid Respondent $5,100.00 of the $6,693.96 contract price.[2] Mickey Bankson’s Complaint (Case No. 2015-1581) 9. On or about April 10, 2015, Mickey Bankson filed a complaint with the Registrar against Respondent alleging that Respondent had abandoned its January 22, 2015 contract to install flooring at Mr. Bankson’s home. According to the complaint, Mr. Bankson had paid Respondent $3,000.00 of the $4,494.23 contract price.[3] Jan Bear’s Complaint (Case No. 2015-1596) 10. On or about April 13, 2015, Jan Bear filed a complaint with the Registrar against Respondent alleging that Respondent had abandoned its February 19, 2015 contract to install flooring at Ms. Bear’s home. According to the complaint, Ms. Bear had paid Respondent $1,540.00 of the $2,199.96 contract price.[4] Peter Mechanick’s Complaint (Case No. 2015-1610) 11. On or about April 13, 2015, Peter Mechanick filed a complaint with the Registrar against Respondent alleging poor work by Respondent in the performance of its March 7, 2015 contract to install flooring at Mr. Mechanick’s home.[5] 12. On or about May 4, 2015, the Registrar conducted a jobsite inspection and substantiated that Respondent had failed to perform all work on Mr. Mechanick’s project in accordance with industry standards. Because the Registrar’s Investigator Jim Dimond was aware that Respondent had closed its doors, Mr. Dimond did not issue a directive that Respondent correct the poor work. Dewey-Humboldt Seventh Day Adventist Church’s Complaint (Case No. 2015- 1616) 13. On or about April 13, 2015, George Rodney Noble, on behalf of Dewey-Humboldt Seventh Day Adventist Church, filed a complaint with the Registrar against Respondent alleging that it had abandoned its January 28, 2015 contract to install flooring at the church. According to the complaint, the Dewey-Humboldt Seventh Day Adventist Church had paid Respondent $2,000.00 of the $3,933.64 estimate.[6] 14. During a jobsite inspection, Investigator Dimond observed that the vinyl flooring had been installed in the kitchen by another contractor, but that no carpet had been installed in the main room and it was bare concrete. Susan Selleck’s Complaint (Case No. 2015-1660) 15. On or about April 10, 2015, Susan Selleck filed a complaint with the Registrar against Respondent alleging abandonment of its February 9, 2015 contract to install flooring at Ms. Selleck’s home. According to the complaint, Ms. Selleck had paid Respondent $3,000.00 of the $4,472.72 contract price.[7] 16. During a jobsite inspection, Investigator Dimond observed no carpet had been received or installed at the commercial business. Steve Lee Bardin’s Complaint (Case No. 2015-1661) 17. On or about April 15, 2015, Steve Lee Bardin filed a complaint with the Registrar against Respondent alleging abandonment of its March 7, 2015 contract to install flooring at Ms. Bardin’s home. According to the complaint, Ms. Bardin had paid Respondent the full $1,400.00 contract price.[8] 18. During a jobsite inspection, Investigator Dimond observed two small bedrooms in which no carpet had been installed. Sarah Nicole Coelho’s Complaint (Case No. 2015-1725) 19. On or about April 20, 2015, Sarah Nicole Coelho filed a complaint with the Registrar against Respondent alleging abandonment of its December 29, 2014 contract to install flooring at Ms. Coelho’s home. According to the complaint, Ms. Coelho had paid Respondent the full $4,526.00 contract price.[9] 20. Ms. Coelho testified that she ordered tile, laminate, grout, carpet, and carpet pad. Ms. Coelho also paid to have the carpet installed. Ms. Coelho received the tile, laminate, and grout and had someone else install that flooring. Ms. Coelho did not receive the carpet or carpet pad. Ms. Coelho calculated that she paid $1,700.00 for the carpet, carpet pad, and installation. 21. During a jobsite inspection, Investigator Dimond observed no carpet had been installed. Kathleen M. Houchin’s Complaint (Case No. 2015-1729) 22. On or about April 20, 2015, Kathleen M. Houchin filed a complaint with the Registrar against Respondent alleging abandonment of its February 9, 2015 contract to install flooring at Ms. Houchin’s home. According to the complaint, Ms. Houchin had paid Respondent the contract price of $5,835.71.[10] 23. During a jobsite inspection, Investigator Dimond observed no new carpet had been installed. Opal Glenna Cloin’s Complaint (Case No. 2015-1784) 24. On or about April 23, 2015, Opal Glenna Cloin filed a complaint with the Registrar against Respondent alleging abandonment of its February 11, 2015 contract to install flooring at Ms. Cloin’s home. According to the complaint, Ms. Cloin had paid Respondent $4,100.00 of the $5,874.40 contract price.[11] 25. During a jobsite inspection, Investigator Dimond observed that Ms. Cloin had had carpet installed by another contractor. Gary Allen Rydberg’s Complaint (Case No. 2015-1941) 26. On or about May 4, 2015, Gary Allen Rydberg filed a complaint with the Registrar against Respondent alleging abandonment of its March 16, 2015 contract to install flooring at Mr. Rydberg’s home. According to the complaint, Ms. Rydberg had paid Respondent $1,700.00 of the $2,421.32 contract price.[12] 27. During a jobsite inspection, Investigator Dimond observed the home still have carpet when the contract was to install wood flooring. Cynthia Ann Akins’ Complaint (Case No. 2015-2204) 28. On or about May 20, 2015, Susan Akins filed a complaint with the Registrar against Respondent alleging abandonment of its January 29, 2015 contract to install flooring at Ms. Akins’ home. According to the complaint, Ms. Akins had paid Respondent $2,345.00 of the $3,350.74 contract price.[13] 29. During a jobsite inspection, Investigator Dimond observed the home still had the pink carpet that had been in the home since Ms. Akins purchased the home two years prior. A Swollen Thumb Contracting Corporation’s Complaint (Case No. 2015-1599) 30. On or about April 13, 2015, David Summit, on behalf of A Swollen Thumb Contracting, filed a complaint with the Registrar against Respondent alleging abandonment of its March 24, 2015 contract to install flooring at 7075 Air Field Road in Prescott Valley, Arizona. According to the complaint, A Swollen Thumb Contracting had paid Respondent $2,000.00 of the $2,884.00 contract price.[14] 31. During a jobsite inspection, Investigator Dimond observed the vinyl flooring had been delivered by Respondent, but the flooring had been installed by a different contractor. Dawn Eileen VanBarriger Geddes’ Complaint (Case No. 2015-1824) 32. On or about April 27, 2015, Dawn Eileen VanBarriger Geddes filed a complaint with the Registrar against Respondent alleging abandonment of its March 31, 2015 contract to install flooring at Ms. Geddes’ home. According to the complaint, Ms. Geddes had paid Respondent the contract price of $5,556.39.[15] 33. Ms. Geddes testified that she had paid the balance with a debit card and a credit card. Ms. Geddes received the $1,000.00 she paid with her debit card back from her bank in approximately three weeks and received the $4,556.39 she paid with her credit card back from the credit card company the week before the hearing. 34. During a jobsite inspection, Investigator Dimond observed that the existing flooring had been removed, but no new flooring had been installed. Charles D. Poole’ s Complaint (Case No. 2015-1884) 35. On or about April 29, 2015, Charles D. Poole filed a complaint with the Registrar against Respondent alleging abandonment of its December 3, 2014 contract to install flooring at Mr. Poole’s home. According to the complaint, Mr. Poole had paid Respondent the contract price of $20,939.51 through a financing agreement offered by Respondent.[16] 36. Mr. Poole testified that his old carpet had been taken up, but had not been removed from his home. Mr. Poole also stated that after he had made several monthly payments on the financing, the financing company terminated the agreement and refunded his payments. 37. During a jobsite inspection, Investigator Dimond observed that Respondent had partially removed the existing flooring, but that Respondent had stopped work. Mr. Poole had hired another contractor to finish removing the flooring so he could occupy the residence. At the time of the inspection, the flooring was just the foundation slab. Julie Anne Auwen’s Complaint (Case No. 2015-2038) 38. On or about May 8, 2015, Julie Anne Auwen filed a complaint with the Registrar against Respondent alleging abandonment of its March 4, 2015 contract to install flooring at Ms. Auwen’s home. According to the complaint, Ms. Auwen had paid Respondent $1,400.00 of the $1,997.17 contract price.[17] 39. During a jobsite inspection, Investigator Dimond observed that Respondent had not completed any of the contracted work and that the living room, foyer, kitchen, and dining room had been stripped down to the concrete. Freddie W. Cnossen’s Complaint (Case No. 2015-2062) 40. On or about May 11, 2015, Freddie W. Cnossen filed a complaint with the Registrar against Respondent alleging abandonment of its March 24, 2015 contract to install flooring at Mr. Cnossen’s home. According to the complaint, Mr. Cnossen had paid Respondent $2,000.00 of the $3,000.00 contract price.[18] Mr. Cnossen’s claim is for the same project reflected in Case No. 2015-1599 involving A Swollen Thumb Contracting Corporation. 41. As detailed above, during a jobsite inspection, Investigator Dimond observed the vinyl flooring had been delivered by Respondent, but the flooring had been installed by a different contractor. Cindy Kay Davis’ Complaint (Case No. 2015-2164) 42. On or about May 18, 2015, Cindy Kay Davis filed a complaint with the Registrar against Respondent alleging abandonment of its February 7, 2015 contract to install flooring at Ms. Davis’ home. According to the complaint, Ms. Davis had paid Respondent $6,807.50 of the $6,289.56 contract price.[19] 43. Ms. Davis testified that Respondent had done part of the project, but that the bedroom carpet had not been installed. Ms. Davis calculated that the remaining portion of the project cost $2,779.81. 44. During a jobsite inspection, Investigator Dimond observed the vinyl flooring had been installed and the carpet had been removed, but no new carpet had been installed. Ralph R. Girardi’s Complaint (Case No. 2015-2248) 45. On or about May 28, 2015, Ralph R. Girardi filed a complaint with the Registrar against Respondent alleging abandonment of its February 10, 2015 contract to install flooring at Mr. Girardi’s home. According to the complaint, Mr. Girardi had paid Respondent the full contract price of $1,019.79.[20] 46. During a jobsite inspection, Investigator Dimond observed no carpet had been installed. CONCLUSIONS OF LAW 1. The summarily suspended statuses of Respondent’s license does not deprive the Registrar of its ability to prosecute these complaints or prevent the Registrar from determining the merits of these complaints.[21] These matters lie within the Registrar’s jurisdiction.[22] 2. The Citation and Complaint/Notice of Hearing sent to the current owner at its address of record was reasonable. Respondent is deemed to have received notice of the hearing.[23] 3. The Registrar bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[24] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[25] 4. The Registrar established that Respondent abandoned without legal excuse the projects of Mr. Coleman, Mr. Bankson, Ms. Bear, Dewey-Humboldt Seventh Day Adventist Church, Ms. Selleck, Mr. Bardin, Ms. Coelho, Ms. Houchin, Ms. Cloin, Mr. Rydberg, Ms. Akins, A Swollen Thumb Contracting Corporation, Ms. Geddes, Mr. Poole, Ms. Auwen, Mr. Cnossen, Ms. Davis, and Mr. Girardi. Therefore, the Registrar established 18 incidents that furnish cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(1).[26] 5. The Registrar established that Respondent failed to comply with the Registrar’s and industry standards in the work that it performed on Mr. Mechanick’s project. Therefore, the Registrar established an incident that furnishes cause to discipline Respondent’s license under A.R.S. § 32-1154(A)(3),[27] namely A.A.C. R4-9-108.[28] 6. With respect to the appropriate penalties, Respondent’s pattern of taking deposits or payments in full on new contracts while previously failing to fulfill existing contracts indicate that at this time, Respondent cannot be regulated. The Registrar has established more than ample cause to summarily suspend Respondent’s license. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order in this matter, the Registrar’s June 8, 2015 order summarily suspending B and L Carpet Stores Inc.’s License Nos. CR-8.110373- D and CR-8.110374-D shall be affirmed. It is further recommended that Respondent’s License Nos. CR-8.110373- D and CR-8.110374-D 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. 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, July 21, 2015.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] After the hearing commenced, Dan and Julie Hussey appeared on behalf of their interest in this matter. Mr. and Ms. Hussey were the prior owners of B and L Carpet Stores Inc. At the time they sold the company to Adam Campbell, they were led to believe they would be removed from the licenses, but they were not. As a result, Mr. and Ms. Hussey were still named on the license at the time the alleged acts detailed in this matter occurred. Mr. and Ms. Hussey did not wish to present any testimony in defense of Respondent and wished only to make it clear that they had no part of any wrongdoing by the current owner, Mr. Campbell. Mr. and Ms. Hussey left the hearing before it concluded. While their appearance was allowed by the Administrative Law Judge, it is clear they were not acting on behalf of or in advancement of Respondent or Respondent’s current owners. [2] See the Registrar’s Exhibit 3. [3] See the Registrar’s Exhibit 4. [4] See the Registrar’s Exhibit 39. [5] See the Registrar’s Exhibit 33. [6] See the Registrar’s Exhibit 11. [7] See the Registrar’s Exhibit 35. [8] See the Registrar’s Exhibit 5. [9] See the Registrar’s Exhibit 13. [10] See the Registrar’s Exhibit 17. [11] See the Registrar’s Exhibit 7. [12] See the Registrar’s Exhibit 9. [13] See the Registrar’s Exhibit 15. [14] See the Registrar’s Exhibit 19. [15] See the Registrar’s Exhibit 21. [16] See the Registrar’s Exhibit 23. [17] See the Registrar’s Exhibit 25. [18] See the Registrar’s Exhibit 27. [19] See the Registrar’s Exhibit 29. [20] See the Registrar’s Exhibit 31. [21] 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 . . . .” [22] See A.R.S. § 32-1154(A). [23] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [24] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(A) and (B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [25] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [26] 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.” [27] A.R.S. § 32-1154(A)(3) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[v]iolation of any rule adopted by the registrar.” [28] A.A.C. R4-9-108 requires that “[a]ll work shall be performed in a professional and workmanlike manner” and that “[a]ll work shall be performed in accordance with any applicable building codes and professional industry standards.”

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