ALJDEC decisions subject to certification as final

2016A-1818-ROC · Registrar of Contractors · 2016-08-31

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: Wednesday, August 17, 2016 at 10:00 a.m. APPEARANCES: Heradia Sanders (“Complainant”) and Jack Grimm (“Investigator”) for the Registrar of Contractors (“Registrar” and “ROC”) ADMINISTRATIVE LAW JUDGE: Linda Marie Brown (“ALJ”) _____________________________________________________________________

This matter was set by the Registrar of Contractors as a hearing to determine whether Respondent has violated Arizona Revised Statutes (A.R.S.) § 32-1154 (A)(1) [1] (prohibiting abandonment of a contract or refusal to perform after submitting a bid without legal excuse). FINDINGS OF FACT The Arizona Registrar of Contractors (“the Registrar”) issued License No. CR61-302446.D to Respondent. Respondent’s address of record is 5320 East Paradise Lane, Scottsdale, Arizona 85254-1132. Complainant, an 81 year old woman, is a residential homeowner. On or about May 27, 2016, Complainant filed a complaint with the Registrar alleging that on April 19, 2016, Respondent contracted with Complainant for a bathrooms remodel. The contract amount was $4,610.00, of which Complainant paid $2,305.00 to Respondent by way of a check as a deposit for work to begin on May 2, 2016. Complainant’s check was cashed by Respondent on April 21, 2106. The contract stated an Installation Day and Date of May 2, 2016 and Estimated Project Length 10 days.[2] Complainant provided the address of 11224 North 63rd Avenue, Glendale, Arizona 85304 as the address on the Complaint that she filed with the Registrar. On June 1, 2016, Notice of Complaint and a copy of the Complaint were sent to the Respondent at its address of record. The Registrar issued a Citation on June 8, 2016,.against Respondent for an Alleged Violation of A.R.S. § 32-154(A)(1) for abandonment of a contract or refusal to perform after submitting a bid without legal excuse. Respondent submitted a timely written answer to the Citation asserting delays outside their control. The letter stated they told customer they were 3 weeks out for installation at the time of contracting. The Contract executed on April 19, 2016, noted an Installation Day and Date of May 2, 2016. Respondent’s Answer to the Citation further stated that Complainant was told Respondent found out from manufacture that half of the product was damaged, and they had every intention of refunding her deposit in full as a nice gesture, . . . and that “customer does or will have her refund any day.” As of the date of this hearing, Complainant testified that she has not yet received her deposit refund. A Request for Hearing was submitted on June 23, 2016. The Registrar referred the matter to the Office of Administrative Hearings (“OAH”), an independent state agency, for an evidentiary hearing. On June 24, 2016, the Registrar issued a Notice of Hearing, setting the hearing on August 17, 2016, at 10:00 a.m. at the OAH. The Registrar mailed a copy of the Notice of Hearing to Complainant at the address on its complaint and to Respondent at its address of record. Respondent did not appear for the duly noticed hearing. ALJ takes administrative notice to the Contractor Information provided at www.azroc.gov that as of July 12, 2016, Respondent’s License CR61-302446 has been revoked. Complainant presented testimony that she was promised a work start date of May 2, 2016, and that the Respondent did not show or call on that day. Complainant telephoned Respondent’s office to find out why they did not show and was told they would look into the matter and get back to her. On May 3, Respondent telephoned Complainant and said they had a schedule issue and would start the work on May 10, 2016. Complainant testified that no one showed or called on May 10. She attempted to contact Respondent and got the answering service. Later she was contacted by the owner who advised her that the materials arrived damaged, and they would call her back to reschedule. On May 13, 2016, Complainant spoke with the Respondent’s office secretary to tell John Lawson and Brandon Lederer that she no longer wanted them to do the job. Complainant testified that she restated dissatisfaction regarding communication on scheduling and no shows, and telephoned again on May 16, 2016, to request a refund of her deposit. On May 17, 2016, she followed up by sending a certified letter to Respondent which was returned “undelivered.” The ROC Investigator was present at the hearing and provided testimony that he did not inspect the residence but did refer the matter to legal. Complainant asked Investigator if she would ever be able to recover her deposit from Respondent. Investigator replied that upon receipt of the final decision from the Registrar, she could then contact the ROC. Additionally, ROC was notified by the Arizona Attorney General’s office, Consumer Information and Complaint Unit (“AG”) by way of letter dated June 2, 2016. The letter noted the AG received a complaint filed by Complainant that may fall under ROC’s jurisdiction and authority of the agency. A copy of Complainant’s complaint filed with the AG was provided to ROC.[3]

CONCLUSIONS OF LAW 1. This dispute lies within the Registrar’s jurisdiction to resolve.[4] 2. Because the Notice of Hearing mailed by the Registrar to Respondent’s address of record was reasonable, Respondent is deemed to have received notice of this hearing.[5] 3. The burden of proof at an administrative hearing is generally upon a complainant.[6] Further, the standard of proof at hearing is by preponderance of the evidence.[7] Therefore, Complainant bears the burden of showing, by a preponderance of the evidence, that Respondent has violated the statute(s) cited in the Citation and Complaint.[8] Complainant has met that burden. 4. The purpose of the Registrar’s licensing statutes is to protect the public from unscrupulous, unqualified, and financially irresponsible contractors.[9] 5. Respondent’s revoked license as referenced in the Findings of Fact No. 12 does not deprive Complainant of her right to prosecute the complaint or prevent the Registrar from determining the merits of the Complaint.[10] 6. The Citation and Complaint in this case cites A.R.S. § 32- 1154(A)(1) that provides for a violation of “abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal” and, if the administrative law judge determines the validity of the charge cited, then Respondent’s license may be subject to suspension or revocation, or other penalties provided by law. 7. Complainant presented credible testimony that provides for a finding that Respondent violated A.R.S. § 32-1154(A)(1).

RECOMMENDED ORDER Based on the foregoing, it is recommended that on the effective date of the final Order in this matter, Respondent’s License No. CR61.302446-D is 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/ Linda Marie Brown 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, “Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for abandonment or refusal.” [2] See ProLaw Intake Complaint. [3] See ProLaw Lg Misc Corres1.pdf (06/16/2016) [4] See A.R.S. § 32-1101 et seq. [5] See A.R.S. §§ 41-1092.04; 41-1092.05(D). [6] Utah Construction Company v. Berg et al, 68 Ariz. 285, 205 P.2d 367 (1949) [7] Smith v. Arizona Dept. of Transportation, 146 Ariz. 430, 706 P.2d 756 (App. 1985) [8] Culpepper v. State, 187 Ariz. 431, 437, 930 P.2d 508, 514 (Ct. App. 1996) [9] Aesthetic Property Maintenance v. Capital Indem. Corp., 183 Ariz. 74, 900 P. 2d 1210 (1995) [10] See A.R.S. § 32-1154(D)

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