ALJDEC decisions subject to certification as final

2016A-1599-ROC · Registrar of Contractors · 2016-09-06

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: August 15, 2016 with the record held open until August 29, 2016 to see if the matter could be resolved between the parties. APPEARANCES: George Marvin McClellan, Jr. (Complainant) appeared on his own behalf. Tycor Construction LLC (Respondent) was represented by its member, qualifying party and authorized representative, Ty Lemons (Lemons). ADMINISTRATIVE LAW JUDGE: Suzanne Marwil _____________________________________________________________________ FINDINGS OF FACT The Arizona Registrar of Contractors (the Registrar) issued License No. 281873 to Respondent. On May 12, 2016, he Registrar received a Complaint against Respondent from Complainant alleging that Respondent failed to provide him plans along with permits for a home addition as provided for in a contract dated January 23, 2015. The Complaint alleged that the Respondent specified a completion date of March 10, 2015, but only received the requisite permits on April 20, 2015 and then attempted to increase the contract price by thirty percent, leading Complainant to terminate the contract. The Complaint accused Respondent of theft for failing to provide any documentation or refund. Complainant paid Respondent a $4,500.00 deposit for the city-approved plans and permits but received neither the city-approved plans nor the permits. On May 27, 2015, Lemons filed a written answer to the Complainant, blaming the delay in receiving the permits on changes Complainant wanted made to the plans and noting that Complainant cancelled the contract on May 5, 2015. Lemons did not mention receiving the deposit or state whether he had provided Complainant with a copy of the city-approved plan or required building permits. Lemons also did not indicate whether he had refunded Complainant any portion of his deposit. The Registrar assigned investigator Randy Cason to investigate the Complaint. Cason testified that he considered the facts presented to constitute abandonment since Respondent had agreed to perform the contract for a fixed price and then attempted to increase the cost. Accordingly, Cason forwarded the file to the Registrar’s legal department for review. The Registrar issued a Citation against Respondent, charging a possible violation of A.R.S. § 32-1154(A)(1) (abandonment of a contract without legal justification). Respondent filed a timely written answer to the Citation denying abandonment of the project. The Registrar referred the matter to the Office of Administrative Hearings (OAH), an independent state agency, for an evidentiary hearing. At hearing, Complainant, Cason and Lemons testified consistently with the facts detailed above. Lemons testified that Respondent had drafted plans for Complainant which were complicated because Complainant wanted to hide a safe and not include it in the plains. Lemons also made several changes to the plans at Complainant’s request. Lemons noted that the architect told him he need five things to complete the plans as of March 2, 2015. Lemons said that Respondent obtained the plans as quickly as possible by April 22, 2015, by which time its cost of materials had increased considerably. Rather than pay for the increased cost, Complainant terminated the contract. Lemons had a copy of the plans for Complainant’s addition at the hearing, but Cason confirmed that they were not stamped city-approved plans. Lemons maintained that he could provide Complainant a copy of the city-approved plans, permits and documentation of expenses in an attempt to resolve the matter. The record was held open to afford Respondent the opportunity to provide the above items to Complainant. Complainant informed the Tribunal that he did receive some an email from Respondent on August 29, 2016, but that he never received a copy of the city-approved plans, permits or a refund of any portion of his deposit. 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. Complainant 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).[1] The evidence showed that Respondent unilaterally increased the cost to perform under the contract and refused to complete the contract for the agreed-upon fixed price. The record also establishes that Respondent failed to provide Complainant with a copy of the city-approved plans, permits and proof of how much of Complainant’s deposit had been spent to obtain these items. The Tribunal finds that the Respondent was obligated to use Complainant’s deposit to ensure he received all the plans he paid for. Respondent was also responsible for communicating with Complainant to ensure he understood the timeframe for obtaining the plans. RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall suspend Tycor Construction LLC’s License No. 281873 until such time as it provides Complainant with a copy of the city-approved plans, permits and documentation of all monies expended on the project. 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 6, 2016.

/s/ Suzanne Marwil Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director Registrar of Contractors

----------------------- [1] 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.”

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