ALJDEC decisions subject to certification as final

2016A-1147-ROC · Registrar of Contractors · 2016-09-01

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 12, 2016 APPEARANCES: Complainant Craig L. Bearchell appeared on his own behalf. Ed Davis appeared on behalf of Respondent Davis Construction LLC. ADMINISTRATIVE LAW JUDGE: Tammy L. Eigenheer _____________________________________________________________________ FINDINGS OF FACT Respondent Davis Construction LLC is the holder of License No. 295230 issued by the Arizona Registrar of Contractors (Registrar). On or about April 5, 2016, Ed Davis approached Complainant Craig L. Bearchell’s home and offered to chip seal Complainant’s driveway for $1400.00. After completing the job, Mr. Davis requested payment of $5250.00. Complainant paid for the work with his credit card. On April 7, 2016, Complainant called to cancel the contract because he felt Respondent had taken advantage of him and he was the victim of a scam. Mr. Davis told Complainant that if he would not challenge any dispute filed with the credit card company. Complainant filed a dispute with his credit card company and was credited back the payment made to Respondent. Complainant filed a consumer complaint with the Attorney General’s Office, which was then forwarded to the Registrar’s office. The Registrar assigned the complaint to Investigator Steve Philpott. On or about May 9, 2016, Investigator Philpott performed a jobsite inspection. On or about May 11, 2016, Investigator Philpott prepared a written directive that provided as follows: After investigation, the Registrar has substantiated that your work fails to meet minimum workmanship standards (see A.A.C. R4-9-108). Failure to comply with this Directive constitutes a violation of A.R.S. § 32-1154(A)(22) and may result in the issuance of a Citation, discipline of your license and a civil penalty pursuant to A.R.S. § 32- 1154(E) of up to $500.00. Failure to comply with this Directive may also be treated as an aggravating factor should the Registrar pursue discipline of your license[.] You must provide the Registrar with satisfactory written proof of your compliance with this Directive prior to 5:00 p.m. on May 27, 2016.

You are hereby directed to remedy the following violations by the appropriate means:

Item 1- Violation of ARS 32-1158 The respondent performed work at a purportedly agreed upon price of $1400 without providing a written contract as required by ARS 32-1158.B

The respondent is to supply a compliant written contract to the investigator within the mandated time frame.

Item 2- Violation of ARS 32-1154

The respondent provided the complainant Invoice INV0010, that does not contain the licensee’s license number preceded by the acronym ROC as required by ARS 32-1124.B and is a violation of ARS 32-1154.A.12

The violation of no written contract listed in item 1 is also a violation of ARS 32-1154.A.12

The respondent is to provide the investigator proof of compliant invoice in the time frame mandated.

Item 3- Violation of ARS 32-1154.A.3 RULE 4-9-108 WORKMANSHIP STANDARDS A. A contractor shall perform all work in a professional and workmanlike manner.

The respondent shall remove excess spillage and leftover construction materials from the public right away (including debris left on the neighbor’s property @ 8530 Leah Lane, Flagstaff, AZ)

Additionally, the respondent shall adjust his business model in such a way that complies with Arizona State Contracting Laws that includes providing written contracts PRIOR to any work being performed.

The Registrar has determined that any workmanship violations alleged in the complaint but not listed above are unsubstantiated and do not require corrective action.

Following the issuance of the written directive, Respondent did not perform any corrective work. The Registrar issued a Citation against Respondent, charging possible violations of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3);[1] A.R.S. § 32-1154(A)(6);[2] A.R.S. § 32-1154(A)(12),[3] namely A.R.S. § 32- 1124(B);[4] A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B);[5] and A.R.S. § 32-1154(22).[6] Complainant testified that he felt like he was the victim of a scam and wanted to ensure that Respondent did not take advantage of others. Complainant acknowledged that he received a full refund of the monies paid to Respondent. Mr. Davis testified that he told Complainant it would cost $14.00 per square yard, not $1400.00 total. Mr. Davis testified that he thought the matter was resolved when Complainant received the refund. Mr. Davis stated that he was not good with paperwork and that this was a handshake deal and Complainant would not have been required to pay him as a result. Administrative notice is taken of Respondent’s prior License record as reflected on the Registrar’s public website on September 1, 2016. Such prior License record reflects that Respondent’s License No. 295230 was first issued on December 12, 2014, and was current. The Registrar’s public website indicates that one prior complaint resulted in discipline, one prior complaint was resolved/settled/withdrawn, and there were three currently open complaints against Respondent’s license. CONCLUSIONS OF LAW 1. This matter lies within the Registrar’s jurisdiction. See A.R.S. § 32- 1101 et seq. 2. 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). 3. The credible evidence presented at hearing established that Respondent left excessive spillage and debris at the project. Thus, Complainants established that Respondent did not perform the work in a professional and workmanlike manner in violation of A.A.C. R4-9-108, and thereby A.R.S. § 32-1154(A)(3). 4. There was insufficient evidence to establish if Respondent committed fraud in violation of A.R.S. § 32-1154(A)(6). 5. The credible evidence presented at hearing established that Respondent’s invoice included a notation of “Business #: 295230”, but did not include the acronym “ROC” immediately preceding the license number in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32- 1124(B). 6. The credible evidence presented at hearing established that Respondent did not provide Complainant a contract prior to performing the work in violation of A.R.S. § 32-1154(A)(12), namely A.R.S. § 32-1158(B). 7. The credible evidence presented at hearing established that Respondent did not comply with the written directive issued by the Registrar in violation of A.R.S. § 32-1154(22). RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Respondent Davis Construction LLC’s License No: 295230 It is further recommended that the Registrar require Respondent to pay the sum of $500.00 as a civil penalty pursuant to A.R.S. § 32-1154(E). It is further recommended that if Respondent fails to pay the entire amount of the civil penalty on or before thirty days following the effective date of the Registrar’s final order, the Registrar revoke Respondent’s license, effective on such deadline date. No future license shall be issued to any entity consisting of persons associated with Respondent, as defined in A.R.S. § 32-1101(A)(5), unless Respondent tenders payment of any outstanding prior civil penalty. 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, September 1, 2016.

/s/ Tammy L. Eigenheer Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] 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.” 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.” [2] A.R.S. § 32-1154(A)(6) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[t]he doing of a fraudulent act by the licensee as a contractor resulting in another person being substantially injured.” [3] A.R.S. § 32-1154(A)(12) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure in any material respect to comply with this chapter.” [4] A.R.S. § 32-1124(B) provides in pertinent part as follows: Licenses issued under this chapter and any renewals shall be signed by the registrar or the registrar's designated representative and by the licensee. The license shall be nontransferable, and satisfactory evidence of possession shall be exhibited by the licensee on demand. The license number appearing on any licenses held by the licensee shall be preceded by the acronym "ROC" and shall be posted in a conspicuous place on premises where any work is being performed, shall be placed on all written bids submitted by the licensee and shall be placed on all broadcast, published, internet or billboard advertising, letterheads and other documents used by the licensee to correspond with the licensee's customers or potential customers in the conduct of business regulated by this chapter. A violation of this subsection relating to posting and placement of license numbers shall be, at the discretion of the registrar, grounds for disciplinary action pursuant to section 32-1154, subsection A, paragraph 12, but not grounds for preventing the award of a contract, voiding an awarded contract, or any other claim or defense against the licensee. For the purposes of this subsection, advertising does not include a trade association directory listing that is distributed solely to the members of the association and not to the general public [5] A.R.S. § 32-1158(B) sets forth the minimum elements of a contract as follows: B. From and after December 31, 2007, any contract in an amount of more than one thousand dollars entered into between a contractor and the owner of a property to be improved shall contain in writing at least the following information: 1. The name of the contractor and the contractor's business address and license number. 2. The name and mailing address of the owner and the jobsite address or legal description. 3. The date the parties entered into the contract. 4. The estimated date of completion of all work to be performed under the contract. 5. A description of the work to be performed under the contract. 6. The total dollar amount to be paid to the contractor by the owner for all work to be performed under the contract, including all applicable taxes. 7. The dollar amount of any advance deposit paid or scheduled to be paid to the contractor by the owner. 8. The dollar amount of any progress payment and the stage of construction at which the contractor will be entitled to collect progress payments during the course of construction under the contract. 9. That the property owner has the right to file a written complaint with the registrar for an alleged violation of section 32-1154, subsection A. The contract shall contain the registrar's telephone number and website address and shall state that complaints must be made within the applicable time period as set forth in section 32- 1155, subsection A. The information in this paragraph must be prominently displayed in the contract in at least ten point bold type, and the contract shall be signed by the property owner and the contractor or the contractor's designated representative. This paragraph does not apply to a person who is subject to and complies with section 12-1365. [6] A.R.S. § 32-1154(A)(22) includes among the grounds for suspension, revocation, or other disciplinary action against a contractor’s license, “[f]ailure to take appropriate corrective action to comply with this chapter or with rules adopted pursuant to this chapter without valid justification within a reasonable period of time after receiving a written directive from the registrar.”

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