ALJDEC decisions subject to certification as final

2016A-2226-ROC · Registrar of Contractors · 2016-09-30

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

Jenny Lubben,

COMPLAINANT,

v.

Home Lift Now LLC, License No: 302446

RESPONDENT.

No. 2016A-2226-ROC

ADMINISTRATIVE LAW JUDGE DECISION

HEARING: September 28, 2016

APPEARANCES: Jenny Marie Lubben (Complainant) appeared on her own behalf. Home Lift Now LLC (Respondent) did not appear.

ADMINISTRATIVE LAW JUDGE: Suzanne Marwil

_____________________________________________________________________

Hearing was convened to determine whether Respondent violated state law as alleged by Complainant and as cited by the Registrar of Contractors (Registrar). Evidence and testimony were presented, and based on the entire record, the following Findings of Fact, Conclusions of Law, and Recommended Order are made:

FINDINGS OF FACT

Complainant is the owner/occupant of a residence located at 12564 West Clarendon Avenue, Avondale, Arizona 85392.

Respondent holds Arizona Contractor’s License No. 302446, which is was summarily suspended on June 6, 2016 and revoked on September 4, 2016. In total, Respondent’s license has been revoked by the Register nine times.

On June 24, 2016, Complainant filed a complaint with the Registrar alleging that Respondent had contracted to perform installation of tile in several rooms as well as a remodel of her bathroom shower on April 18, 2016. The Complaint alleged that Complainant paid Respondent a $1,000.00 deposit and arranged to finance some of the remaining contract costs for zero percent financing arranged through a financing company with which Respondent had a relationship. The Complainant said that the start date of the project was pushed back to June 20, 2016 to accommodate Complainant’s work schedule and that Complainant performed demolition work in reliance on the anticipated start date. The Complaint said the only work done by Respondent’s subcontractor was the placement of two Hardy backers and a drain. The Complaint noted that Complainant informed Respondent she considered the project abandoned, particularly in light of the suspension of Respondent’s license and requested a refund of her deposit along with cancellation of the contract.

The Registrar assigned investigator Jack Grimm to investigate the complaint. The Registrar’s file testified that Grimm arranged to perform an inspection on July 25, 2016, and notified Complainant and Respondent of the time and place of the inspection. Respondent did not attend that inspection. Grimm’s jobsite inspection notes reflect that the job was not complete and that Respondent appeared to have abandoned the project.

Grimm subsequently forwarded the matter to the Registrar’s legal department for review.

On July 27, 2016, the Registrar issued Respondent a Citation. That Citation contained two charges. Charge 1 asserted “[a] violation of A.R.S. § 32-1154(A)(1) (“Abandonment of a contract or refusal to perform after submitting a bid on work without legal excuse for the abandonment or refusal.”) Charge 2 referenced “[a] violation of A.R.S. § 32-1154(A)(12) (“Failure in any material respect to comply with this chapter,”) in particular A.R.S. § 32-1124(B), A.R.S. § 32-1158(B) that lists certain required elements of a contract.

On, July 26, 2016, Brandon Lederer filed an answer to the Citation on Respondent’s behalf which stated in pertinent part:

I am writing a formal letter to ROC regarding all of the below complaints and that may come after.

Directly due to the ROC suspending and revoking my license, this destroyed my business and therefore forced me to close my doors. We have no assets or license to perform anymore work on any of these prior jobs. Otherwise, I would be happy to attend any and all job site inspections and hearing's (sic) pertaining to these matters including finishing work. We unfortunately and regretfully are no longer in business.

These are the following active complaints that this pertains too (sic);

Complaint # 2016-2264 Somers

Complaint # 2016-2226 Lubben

Case # 2016-2093 Safi

Complaint # 2016-2295 Kutless Painting (did poor quality work and payment was not justified or deserved)

Complaint # 2016-2215 Cabinets For Less (delivered poor quality products that needed to be replaced)

Complaint # 2016-2571 Dunn Edwards

Hearing in this matter was held on September 28, 2016. Respondent did not request to appear telephonically and did not request that the hearing be continued. Throughout the course of the thirty minute hearing, Respondent did not appear, through an authorized member, employee, or attorney. Consequently, Respondent did not present any evidence to defend its license.

Complainant offered the only testimony in this matter and she testified consistently with the allegations of her Complaint detailed above. She noted that Respondent abandoned the contract after sending two workers with no supplies or plans to work on her job for a total of three hours. When pressed, Complainant said Lederer told her license had been suspended but that it should be reinstated shortly. Complainant said no further work was ever done by Respondent. Complainant noted that Respondent’s contract did not inform her of her right to file a complaint with the Registrar. Complainant indicated she was able to dispute all charges with the finance company, but that the deposit given to Respondent had not been refunded.

CONCLUSIONS OF LAW

The Registrar has jurisdiction over this matter, pursuant to A.R.S. § 32-1101, et seq., which authorizes the Registrar to impose disciplinary sanctions against licenses for violations of A.R.S. § 32-1154.

Respondent’s revoked license does not deprive Complainant of her right to prosecute his complaint or prevent the Registrar from determining the merits of the complaint. See A.R.S. § 32-1154(D).

The copies of the Notice of Hearing that the Registrar mailed to Respondent at its address of record was reasonable and Respondent is deemed to have received notice of the hearing. A.R.S. §§ 41-1092.04 and 41-1092.05(D).

To warrant such sanctions by the Registrar, Complainant must demonstrate by a preponderance of the evidence that Respondent violated the statutory sections cited. Proof by a “preponderance” means that “the evidence is sufficient to persuade the finder of fact that the proposition is more likely true than not.” In re: Arnold and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence and Baker Farms, 177 B.R. 648 (9th Cir. BAP (Ariz.) 1994). See also Culpepper v. State of Arizona, 187 Ariz. 431, 930 P.2d 508 (App. 1996). It is “evidence which is of greater weight or more convincing than the evidence

which is offered in opposition to it; that is, evidence which as a whole shows that the fact sought to be proved is more probable than not.” Black’s Law Dictionary 1182 (Rev. 6th ed. 1990).

5. The undisputed evidence in this matter established that Respondent violated A.R.S. § 32-1154(A)(1) and abandoned its contract with Complainant. Respondent left the job uncompleted and failed to make arrangements with a properly licensed contractor to complete the work.

6. Similarly, a review of Complainant’s contract with Respondent shows that Respondent violated A.R.S. § 32-1154(A)(12) by failing to include required elements in its contract with Complainant pursuant to A.R.S. § 32-1158(B).

RECOMMENDED ORDER

Based on the foregoing, it is recommended that on the effective date of the Order, the Registrar shall revoke Home Lift Now LLC’s License No. 302446.

In the event of certification of this 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 the certification.

Done this day, September 30, 2016.

/s/ Suzanne Marwil

Administrative Law Judge

Transmitted electronically to:

Jeffrey Fleetham, Director

Registrar of Contractors