ALJDEC decisions subject to certification as final

2015A-3881-ROC-RF · Registrar of Contractors · 2016-10-20

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Registrar of Contractors,

COMPLAINANT,

-v-

Brazen Builders Inc.,

License No(s). 227833 and 227834,

RESPONDENT.

No. 2015A-3880-ROC-RF

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: October 17, 2016

APPEARANCES: The Registrar of Contractors was represented by Assistant Attorney General Thomas Raine. No one appeared for Respondent Brazen Builders, Inc.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

FINDINGS OF FACT

On December 6, 2006, Brazen Builders, Inc. (Brazen or Respondent) applied to the Registrar of Contractors (Registrar) for a class B General Residential Contractors License and a class B-1 General Commercial Contractor’s License. On the applications, Douglas James Green (Green) was listed as “Qualifying Party” and was noted to be a corporate office of Respondent. Exhibit 5. The applications were approved and Brazen was issued License Numbers 227833 and 227834.

Before applying for Respondent’s licenses, Green appeared on the license of Rockland Builders, LLC, License Number 178397 (Rockland). Specifically, on June 8, 2005, Green filed a Change of Ownership Form for Rockland, indicating that he had an ownership interest in Rockland. Exhibit 2.

On November 27, 2006, Green filed a Notice of Disassociation with the Registrar indicating that he was resigning as a member of Rockland.

On March 16, 2006, the Registrar received a complaint filed by Patrick X. Fowler against Rockland alleging numerous problems with roof work done by Rockland, leading the Fowlers to terminate their contract on November 14, 2005, a date Green was on the license of Rockland. See Exhibit 6. This complaint led to a citation, administrative hearing and discipline by the Registrar. A subsequent claim filed with the Residential Contractor’s Recovery Fund (Fund) led to an administrative payout of $11,931.00, which has not been repaid by Rockland or anyone named on the license.

On October 12, 2007, the Fowlers filed another complaint against Respondent alleging poor work. See Exhibit 7. The date work was last performed was June 7, 2006, a date when Green remained on Rockland’s license. Rockland never disputed the facts alleged in the complaint, leading the Registrar to issue a Default Decision and Order on July 11, 2008. Once again, the Fowlers filed a claim with the Fund and were awarded an administrative payout of $8,365.00. This amount as not been repaid by Rockland or anyone named on its license.

On June 13, 2016, the Registrar issued a Notice and Order Imposing § 32-1139(B) Suspension(s) to Brazen indicating that the dates of the acts or omissions that led to the Fund’s awards against Rockland were November 14, 2005 and June 7, 2006 and that Green appeared on the license of Rockland on the date of the acts or omissions that led to the Fund payouts. As a result, the Registrar indicated it was required to suspend Brazen’s license pursuant to A.R.S. § 32-1139(B) until the amounts paid from the Fund in Case No. in RF08-0306 and RF08-0964 was repaid to the Registrar. Exhibit 1.

Douglas James Green did not appear for hearing. In August 2016, Green contacted the Tribunal and indicated he was having surgery and needed a continuance of the hearing. The Tribunal granted a continuance and set hearing for 1:00 p.m. on October 7, 2016 at the Office of Administrative Hearings. That Notice was mailed to Brazen’s address of record.

In addition, after waiting 20 minutes for Green to appear in person for hearing and after the Registrar presented evidence on why the suspension should be imposed as a matter of law, the Tribunal called the telephone number for Brazen and left a message inviting Green to call into the hearing. Green did not do so.

In his request for hearing dated June 27, 2016, Green stated: “I was not a member of Rockland Builders LLC and can provide evidence of such.”

CONCLUSIONS OF LAW

This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32-112

The Order Granting Continuance that the Tribunal mailed to Respondent at its address of record was reasonable and it is deemed to have received notice of the hearing.

The Registrar bears the burden of proof by a preponderance of the evidence to establish that cause exists to discipline Respondent’s licenses. See A.R.S. § 41-1092.07(G)(1); A.A.C. R2-19-119; 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).

A.R.S. § 32-1139(B) provides as follows:

If any amount is paid from the fund in settlement of a claim arising from the act, representation, transaction or conduct of a residential contractor, the license of the contractor shall be automatically suspended by operation of law until the amount paid from the fund is repaid in full, plus interest at the rate of ten per cent a year. Any person who is or was, at the time of the act or omission, named on a license that has been suspended because of a payment from the recovery fund is not eligible to receive a new license or retain another existing license that also shall be suspended by operation of law, nor shall any suspended license be reactivated, until the amount paid from the fund is repaid as provided in this subsection.

The undisputed evidence established that Green was named on Rockland’s license as a member when the acts or omissions relative to the complaints occurred. The fact that Green disassociated form Rockland after the acts or omissions at issue in the complaints occurred does not insulate Green from his responsibility to pay back administrative payouts stemming from those acts or omissions. Because Baker remained a member of Rockland on November 14, 2005 and June 7, 2006, the Registrar established that Brazen’s licenses should be suspended until the Fund has been repaid the amounts paid from the Fund in Case Nos. RF08-0306 and RF08-0964.

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Registrar of Contractors’ Order in this matter, the Registrar of Contractors’ Notice and Order Imposing § 32-1139(B) Suspensions be affirmed.

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, October 20, 2016.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors