ALJDEC decisions subject to certification as final

2016A-1374-ROC · Registrar of Contractors · 2016-08-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 8, 2016, at 10:00 a.m. and August 31, 2016, at 10:00 a.m. APPEARANCES: Debbie M. Pope (“Complainant”) appeared on her own behalf on August 31, 2016; ROI Improvements LLC (“Respondent”) failed to appear at both hearing dates. ADMINISTRATIVE LAW JUDGE: Diane Mihalsky _____________________________________________________________________

FINDINGS OF FACT Background and Procedure 1. On or about May 13, 2013, the Arizona Registrar of Contractors (“the Registrar”) issued License No. KB-2.284930-D for dual residential and small commercial contracting to Respondent. Respondent’s address of record is 2617 S. 21st St., Phoenix, Arizona 85034-6720. 2. On or about April 26, 2016, Complainant filed a complaint with the Registrar against Respondent alleging that Respondent had abandoned its contract to renovate the bathrooms at Complainant’s house at 4908 E. Kathleen Rd., Scottsdale, Arizona 85254. 3. The Registrar assigned the complaint to its investigator, Steve Klein (“Investigator Klein”), for investigation. Investigator Klein performed a jobsite inspection and on May 25, 2016, issued a directive to Respondent to complete the project per original contract agreement, properly executed change orders, verbal agreements, local building codes, and manufacturers’ installation instructions. Respondent was to complete the project on or before 5:00 p.m. on June 1, 2016. 4. On June 2, 2016, Investigator Klein called Complainant and she informed him that Respondent had not contacted her or done anything to comply with the May 25, 2016 directive. Investigator Klein referred the complaint to the Registrar’s Legal Department. 5. On June 8, 2015, the Registrar issued a Citation against Respondent’s license, charging cause to revoke, suspend, or otherwise discipline Respondent’s license under A.R.S. §§ 32- 1154(A)(1) and 32-1154(A)(22). 6. Respondent filed a timely written answer to the Citation, alleging that it planned to complete Complainant’s project. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. 7. On June 17, 2016, the Registrar issued a Notice of Hearing, setting an evidentiary hearing on August 8, 2016. The Registrar sent the Notice of Hearing to Respondent at its address of record. 8. Neither party appeared on August 8, 2016. Investigator Klein informed the Administrative Law Judge (“ALJ”) that Complainant had informed him that she believed that the hearing had been cancelled.

9. On August 8, 2016, the ALJ issued an order setting a further hearing on August 31, 2016, because it appeared that Complainant was confused about the status of her complaint. OAH mailed the order setting a further hearing to Respondent at its address of record. 10. An evidentiary hearing was held on August 31, 2016. Investigator Klein testified to establish the facts set forth above. Complainant credibly testified to establish that the condition of her bathrooms had not changed since she filed the complaint with the Registrar and that Respondent had not performed any additional work on the project. 11. Respondent did not request to appear telephonically at the hearing and did not request that the hearing be continued. Although the hearing did not conclude for approximately 30 minutes, Respondent did not appear through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license. 12. Administrative notice is taken of Respondent’s license history on the Registrar’s public website on this date pursuant to A.A.C. R4-9- 117. Between June 24, 2016, and August 17, 2016, Respondent’s license was summarily suspended. Respondent’s license was revoked on August 18, 2016 (three times), August 22, 2016 (twice), and August 23, 2016. CONCLUSIONS OF LAW The revoked status of Respondent’s license does not deprive Complainant of her right to prosecute her complaint against Respondent or prevent the Registrar from determining the merits of Complainant’s complaint.[1] This matter lies within the Registrar’s jurisdiction.[2] The Notice of Hearing that the Registrar mailed to Respondent at its address of record and the order setting a further hearing that OAH mailed to Respondent at its address of record were reasonable and Respondent is deemed to have received notice of the August 8, 2016 hearing and August 31, 2016 further hearing.[3] Complainant bears the burden of proof to establish cause to discipline Respondent’s license by a preponderance of the evidence.[4] “A preponderance of the evidence is such proof as convinces the trier of fact that the contention is more probably true than not.”[5] Complainant established that Respondent abandoned its contract to renovate her bathrooms, furnishing cause to discipline Respondent’s contractor’s license under A.R.S. § 32-1154(A)(1).[6] Complainant also established that Respondent failed to comply with the Registrar’s May 25, 2016 Directive, furnishing additional cause to discipline Respondent’s contractor’s license under A.R.S. § 32- 1154(A)(22).[7] Respondent’s poor license history and failures to attend the August 8, 2016 hearing or August 31, 2016 further hearing establish that at this time, it cannot be regulated. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the order in this matter, License No. KB-2.284930-D of Respondent ROI Improvements LLC 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. Done this day, August 31, 2016.

/s/ Diane Mihalsky Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors ----------------------- [1] See A.R.S. § 32-1154(D). 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 . . . .” [2] See A.R.S. § 32-1154(A). [3] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [4] See A.R.S. § 41-1092.07(G)(2); A.A.C. R2-19-119(B)(1); see also Vazanno v. Superior Court, 74 Ariz. 369, 372, 249 P.2d 837 (1952). [5] Morris K. Udall, Arizona Law of Evidence § 5 (1960). [6] 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.” [7] 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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